EXHIBIT 4.06
- --------------------------------------------------------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of __________, 1999
between
OGE ENERGY CORP.,
AS ISSUER
and
BANK OF OKLAHOMA, NATIONAL ASSOCIATION
AS TRUSTEE
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.............................................2
Section 1.1. Definition of Terms................................2
ARTICLE II GENERAL TERMS AND CONDITIONS OF THE DEBENTURES..........3
Section 2.1. Designation and Principal Amount...................3
Section 2.2. Maturity...........................................3
Section 2.3. Form and Payment...................................3
Section 2.4. Global Debenture...................................3
Section 2.5. Interest...........................................5
Section 2.6. Preferred Security Holders' Rights.................6
Section 2.7. Authorized Denominations...........................6
ARTICLE III REDEMPTION OF THE DEBENTURES............................6
Section 3.1. Special Event Redemption...........................6
Section 3.2. Optional Redemption by Company.....................6
Section 3.3. No Sinking Fund....................................7
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD....................7
Section 4.1. Extension of Interest Payment Period...............7
Section 4.2. Notice of Extension................................8
Section 4.3. Limitation of Transactions.........................8
ARTICLE V EXPENSES................................................9
Section 5.1. Payment of Expenses................................9
Section 5.2. Payment Upon Resignation or Removal................9
ARTICLE VI NOTICE.................................................10
Section 6.1. Notice by the Company.............................10
ARTICLE VII COVENANT TO LIST ON EXCHANGE...........................11
Section 7.1. Listing on an Exchange............................11
ARTICLE VIII FORM OF DEBENTURE......................................11
Section 8.1. Form of Debenture.................................11
-i-
ARTICLE IX ORIGINAL ISSUE OF DEBENTURES...........................19
Section 9.1. Original Issue of Debentures......................19
ARTICLE X MISCELLANEOUS..........................................19
Section 10.1. Ratification of Indenture.........................19
Section 10.2. Trustee Not Responsible for Recitals..............19
Section 10.3. Governing Law.....................................19
Section 10.4. Separability......................................19
Section 10.5. Counterparts......................................20
-ii-
FIRST SUPPLEMENTAL INDENTURE, dated as of __________, 1999 (the "First
Supplemental Indenture"), between OGE ENERGY CORP., a corporation duly organized
and existing under the laws of the State of Oklahoma, having its principal
office at 321 N. Harvey Avenue, Oklahoma City, Oklahoma 73102, (the "Company"),
and BANK OF OKLAHOMA, NATIONAL ASSOCIATION, as trustee (the "Trustee").
WHEREAS, the Company executed and delivered the indenture dated as of
__________, 1999 (the "Indenture"), to the Trustee to provide for the future
issuance of the Company's unsecured debentures, notes or other evidence of
indebtedness (the "Securities"), to be issued from time to time in one or more
series as might be determined by the Company under the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of its Securities to be known as
its ____% Junior Subordinated Debentures due ____ (the "Debentures"), the form
and substance of such Debentures and the terms, provisions and conditions
thereof to be set forth as provided in the Indenture and this First Supplemental
Indenture;
WHEREAS, OGE Energy Capital Trust I, a Delaware statutory business
trust (the "Trust"), has offered to the public $__________ aggregate liquidation
amount of its _____% Preferred Securities (the "Preferred Securities"),
representing undivided beneficial interests in the assets of the Trust and
proposes to invest the proceeds from such offering, together with the proceeds
of the issuance and sale by the Trust to the Company of $__________ aggregate
liquidation amount of its ____% Common Securities, in $__________ aggregate
principal amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture and all requirements necessary to make this
First Supplemental Indenture a valid instrument in accordance with its terms,
and to make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this First Supplemental Indenture
has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used
in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not affect
interpretation;
(e) the following terms have the meanings given to them in the
Declaration: (i) Business Day; (ii) Delaware Trustee; (iii) Depositary; (iv)
Preferred Security Certificate; (v) Property Trustee; (vi) Regular Trustees;
(vii) Special Event; (viii) Tax Event; (ix) Investment Company Event; and (x)
Securities;
(f) the following terms have the meanings given to them in this
Section 1.1(f):
"Additional Interest" shall have the meaning set forth in
Section 2.5.(c)
"Compounded Interest" shall have the meaning set forth in Section 4.1.
"Declaration" means the Amended and Restated Declaration of Trust of
OGE Energy Capital Trust I, a Delaware statutory business trust, dated as of
__________, 1999.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Special Event or otherwise, the Trust is to be dissolved in
accordance with the Declaration, and the Debentures held by the Property
Trustee are to be distributed to the holders of the Securities issued by the
Trust pro rata in accordance with the Declaration.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.1.
"Global Debenture" shall have the meaning set forth in Section 2.4.
"Maturity Date" means the date on which the Debentures mature and on
which the principal shall be due and payable together with all accrued and
unpaid interest thereon including Compounded Interest and Additional Interest,
if any.
2
"Non Book-Entry Preferred Securities" shall have the meaning set forth
in Section 2.4.
"Optional Redemption Price" shall have the meaning set forth in
Section 3.2(a).
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Securities designated the "__%
Junior Subordinated Debentures due ____", limited in aggregate principal amount
to $__________ (the "Debentures"), which amount shall be as set forth in any
written order of the Company for the authentication and delivery of Debentures
pursuant to Section 303 of the Indenture.
SECTION 2.2. Maturity.
The Maturity Date will be ___________, ____.
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Debentures shall be issued in
fully registered certificated form without interest coupons. Principal and
interest on the Debentures issued in certificated form will be payable, the
transfer of such Debentures will be registrable and such Debentures will be
exchangeable for Debentures bearing identical terms and provisions at the office
or agency of the Trustee; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the Holder at such address
as shall appear in the Security Register. Notwithstanding the foregoing, so long
as the Holder of any Debentures is the Property Trustee, the payment of the
principal of and interest (including Compounded Interest and Additional
Interest, if any) on such Debentures held by the Property Trustee will be made
at such place and to such account as may be designated by the Property Trustee.
SECTION 2.4. Global Debenture. For purposes of the Debentures only,
Section 205 of the Indenture is hereby amended to read in its entirety as
provided in this Section 2.4:
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to
the Trustee by the Property Trustee in exchange for a global
Debenture in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Debentures (a
"Global Debenture"), to be registered in the name of the
Depositary, or its nominee, and delivered by the Trustee to the
Depositary for crediting to the accounts of its participants
pursuant to the instructions of the Regular Trustees. The
Company upon any such presentation shall execute a Global
Debenture in such aggregate principal amount and deliver the
same to the Trustee for
3
authentication and delivery in accordance with the Indenture
and this First Supplemental Indenture. Payments on the
Debentures issued as a Global Debenture will be made to the
Depositary; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be
presented to the Trustee by the Property Trustee and any
Preferred Security Certificate which represents Preferred
Securities other than Preferred Securities held by the
Depositary or its nominee ("Non Book-Entry Preferred
Securities") will be deemed to represent beneficial interests
in Debentures presented to the Trustee by the Property Trustee
having an aggregate principal amount equal to the aggregate
liquidation amount of the Non Book-Entry Preferred Securities
until such Preferred Security Certificates are presented to the
Security Registrar for transfer or reissuance at which time
such Preferred Security Certificates will be cancelled and a
Debenture, registered in the name of the holder of the
Preferred Security Certificate or the transferee of the holder
of such Preferred Security Certificate, as the case may be,
with an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Security Certificate
cancelled, will be executed by the Company and delivered to the
Trustee for authentication and delivery in accordance with the
Indenture and this First Supplemental Indenture.
(b) Unless and until it is exchanged for the Debentures in
registered form, a Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time that the
Depositary for such series is required to be registered as under the
Securities Exchange Act of 1934, such Depositary shall no longer be
registered or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, and a successor
Depositary for such series is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such condition, as
the case may be, the Company will execute, and, subject to Article III of the
Indenture, the Trustee, upon written notice from the Company, will
authenticate and deliver the Debentures in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Debenture in exchange for such
Global Debenture. In addition, the Company may at any time determine that the
Debentures shall no longer be represented by a Global Debenture. In such
event the Company will execute, and subject to Section 301 of the Indenture,
the Trustee, upon receipt of an Officer's Certificate evidencing such
determination by the Company, will authenticate and deliver the Debentures in
definitive registered form without coupons, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global
Debenture in exchange for such Global Debenture. Upon the exchange of the
Global Debenture for such Debentures in definitive registered form without
coupons, in authorized denominations, the Global Debenture shall be cancelled
by the Trustee. Such Debentures in definitive registered
4
form issued in exchange for the Global Debenture shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the
Depositary for delivery to the Persons in whose names such Securities are so
registered.
SECTION 2.5. Interest.
(a) Each Debenture will bear interest at the rate of ____% per annum
(the "Coupon Rate") from the original date of issuance until the principal
thereof becomes due and payable, and on any overdue principal and (to the
extent that payment of such interest is enforceable under applicable law) on
any overdue installment of interest at the Coupon Rate, compounded quarterly,
payable (subject to the provisions of Article IV) quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year (each, an
"Interest Payment Date") commencing on December 31, 1999, to the Person in
whose name such Debenture or any predecessor Debenture is registered, at the
close of business on the regular record date for such interest installment,
which, in respect of (i) Debentures of which the Property Trustee is the
Holder and the Preferred Securities are in book-entry only form or (ii) a
Global Debenture, shall be the close of business on the Business Day next
preceding that Interest Payment Date. Notwithstanding the foregoing sentence,
if (i) the Debentures are held by the Property Trustee and the Preferred
Securities are no longer in book-entry only form or (ii) the Debentures are
not represented by a Global Debenture, the regular record date for such
interest installment shall be the fifteenth day next preceding the applicable
Interest Payment Date.
(b) The amount of interest payable for any full quarterly period will be
computed on the basis of a 360-day year of twelve 30-day months. The amount
of interest payable for any period shorter than a full quarterly period will
be computed on the basis of a 30-day month and, for periods of less than a
month, the actual number of days elapsed per 30-day month. In the event that
any date on which interest is payable on the Debentures is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
(c) If, at any time while the Property Trustee is the Holder of any
Debentures, the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing
authority, then, in any case, the Company will pay as additional interest
("Additional Interest") on the Debentures held by the Property Trustee, such
additional amounts as shall be required so that the net amounts received and
retained by the Trust and the Property Trustee after paying such taxes,
duties, assessments or other governmental charges will be equal to the
amounts the Trust or the Property Trustee, as applicable, would have received
had no such taxes, duties, assessments or other government charges been
imposed.
5
SECTION 2.6. Preferred Security Holders' Rights.
If an Event of Default constituting the failure to pay interest or
principal on the Debentures on the date such interest or principal is otherwise
payable has occurred and is continuing, then a holder of Preferred Securities
may directly institute a proceeding for enforcement of payment to such holder
directly of the principal of or interest on the Debentures having a principal
amount equal to the aggregate liquidation amount of the Preferred Securities of
such holder on or after the respective due date specified in the Debentures. The
holders of Preferred Securities will not be able to exercise directly any other
remedy available to the holders of the Debentures under this First Supplemental
Indenture or under the Indenture.
SECTION 2.7. Authorized Denominations.
The Debentures are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Special Event Redemption.
If a Special Event has occurred and is continuing then, notwithstanding
Section 3.2(a) but subject to Section 3.2(b), the Company shall have the right
upon not less than 30 days nor more than 60 days notice to the Holders of the
Debentures to redeem the Debentures, in whole but not in part, for cash within
90 days following the occurrence of such Special Event at a redemption price
equal to 100% of the principal amount to be redeemed plus any accrued and unpaid
interest thereon to the date of such redemption (the "Redemption Price"). The
Redemption Price shall be paid prior to 12:00 noon, New York time, on the date
of such redemption or such earlier time as the Company determines, provided that
the Company shall deposit with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m., New York time, on the date such Redemption Price
is to be paid.
SECTION 3.2. Optional Redemption by Company.
(a) Subject to the provisions of Section 3.2(b) and to the
provisions of Article Eleven of the Indenture, except as otherwise may be
specified in this First Supplemental Indenture, the Company shall have the
right to redeem the Debentures, in whole or in part, from time to time, on or
after ____________, ____, at a redemption price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid interest thereon
to the date of such redemption (the "Optional Redemption Price"). Any
redemption pursuant to this paragraph will be made upon not less than 30 days
nor more than 60 days notice to the Holder of the Debentures, at the Optional
Redemption Price. If the Debentures are only partially redeemed pursuant to
this Section 3.2, the Debentures will be redeemed pro rata or by lot or by
any other method utilized by the Trustee; provided, that if at the time of
redemption the Debentures are registered as a Global Debenture, the
Depositary shall determine, in accordance with its procedures, the
6
principal amount of such Debentures held by each beneficial owner of
Debentures to be redeemed. The Optional Redemption Price shall be paid prior
to 12:00 noon, New York time, on the date of such redemption or at such
earlier time as the Company determines provided that the Company shall
deposit with the Trustee an amount sufficient to pay the Optional Redemption
Price by 10:00 a.m., New York time, on the date such Optional Redemption
Price is to be paid.
(b) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities
are then listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Debentures in whole.
SECTION 3.3. No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
The Company shall have the right, at any time and from time to time
during the term of the Debentures, to defer payments of interest for a period
not exceeding 20 consecutive quarters by extending the interest payment
period to a subsequent Interest Payment Date for such Debentures (the
"Extended Interest Payment Period"), during which Extended Interest Payment
Period no interest shall be due and payable; provided that no Extended
Interest Payment Period may extend beyond the Maturity Date. To the extent
permitted by applicable law, interest, the payment of which has been deferred
because of the extension of the interest payment period pursuant to this
Section 4.1, will bear interest thereon at the Coupon Rate compounded
quarterly for each quarter of the Extended Interest Payment Period
("Compounded Interest"). At the end of the Extended Interest Payment Period,
the Company shall pay all interest accrued and unpaid on the Debentures,
including any Additional Interest and Compounded Interest (together,
"Deferred Interest") that shall be payable to the Holders of the Debentures
in whose names the Debentures are registered in the Security Register on the
record date in respect of the Interest Payment Date occurring at the end of
the Extended Interest Payment Period. Before the termination of any Extended
Interest Payment Period, the Company may further extend such period, provided
that such period together with all previous and further extensions thereof
shall not exceed 20 consecutive quarters, or extend beyond the maturity date
of the Debentures. Upon the termination of any Extended Interest Payment
Period and upon the payment of all Deferred Interest then due, the Company
may commence a new Extended Interest Payment Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extended
Interest Payment Period until the end thereof, except upon a redemption of
the Debentures during an Extended Interest Payment Period, but the Company
may prepay at any time all or any portion of the interest accrued during an
Extended Interest Payment Period.
7
SECTION 4.2. Notice of Extension.
(a) If the Property Trustee is the only registered Holder of the
Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give written notice to the Regular Trustees, the
Property Trustee and the Trustee of its selection of such Extended Interest
Payment Period one Business Day before the earlier of (i) the next succeeding
date on which Distributions on the Securities issued by the Trust are
payable, or (ii) the date the Trust is required to give notice of the record
date, or the date such Distributions are payable, to the New York Stock
Exchange or other applicable self-regulatory organization or to holders of
the Preferred Securities issued by the Trust, but in any event at least one
Business Day before such record date.
(b) If the Property Trustee is not the only Holder of the Debentures
at the time the Company selects an Extended Interest Payment Period, the
Company shall give the Holders of the Debentures and the Trustee written
notice of its selection of such Extended Interest Payment Period at least 10
Business Days before the earlier of (i) the next succeeding Interest Payment
Date, or (ii) the date the Company is required to give notice of the record
or payment date of such interest payment to the New York Stock Exchange or
other applicable self-regulatory organization or to Holders of the Debentures,
but in any event at least two business days prior to the record date.
(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Extended Interest Payment Period permitted under
Section 4.1.
SECTION 4.3. Limitation of Transactions.
If (i) the Company shall exercise its right to defer payment of
interest as provided in Section 4.1, or (ii) there shall have occurred any
Event of Default, as defined in the Indenture, then, during such Extended
Interest Payment Period or until such Event of Default shall have been cured,
waived or cease to exist, (a) the Company shall not declare or pay any
dividend on, make any distributions with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital
stock (other than (i) dividends or distributions by way of issuance of the
Company's common stock, (ii) payment under the guarantee in respect of the
Securities, (iii) dividends in connection with the implementation of a
shareholder's rights plan, or the issuing of stock under such a plan or the
repurchase of such rights or (iv) purchases or acquisitions of shares of its
common stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans or the satisfaction by the
Company of its obligations pursuant to any contract or security requiring the
Company to purchase shares of its common stock) or make any guarantee payment
with respect thereto, and (b) the Company shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
Indebtedness issued by the Company, or any of its subsidiaries or any other
Person, which rank pari passu with or junior to the Debentures or make any
guarantee payments with respect to the foregoing (other than pursuant to the
Preferred Security Guaranty).
8
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the Debentures to
the Property Trustee and in connection with the sale of the Securities by the
Trust, the Company, in its capacity as borrower with respect to the Debentures,
shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions payable to the underwriters
and compensation of the Trustee under the Indenture in accordance with the
provisions of Section 607 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Securities (including commissions to the
underwriters in connection therewith), the fees and expenses of the Property
Trustee and the Delaware Trustee, the costs and expenses relating to the
operation of the Trust, including without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying
agent(s), registrar(s), transfer agent(s), duplicating, travel and telephone
and other telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing, and disposition of Trust assets
and costs relating to the dissolution of the Trust);
(c) be primarily liable for any indemnification obligations arising
with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
SECTION 5.2. Payment Upon Resignation or Removal.
Upon termination of this First Supplemental Indenture or the Indenture
or the removal or resignation of the Trustee pursuant to Section 610 of the
Indenture, the Company shall pay to the Trustee all amounts accrued to the date
of such termination, removal or resignation. Upon termination of the Declaration
or the removal or resignation of the Delaware Trustee or the Property Trustee,
as the case may be, pursuant to Section 6.6 of the Declaration, the Company
shall pay to the Delaware Trustee or the Property Trustee, as the case may be,
all amounts accrued to the date of such termination, removal or resignation.
9
ARTICLE VI
NOTICE
SECTION 6.1. Notice by the Company.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit
the making of any payment of monies to or by the Trustee in respect of the
Debentures pursuant to the provisions of Article Fourteen of the Indenture.
Notwithstanding the provisions of this Article VI or any other provision of
the Indenture and this First Supplemental Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article VI, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof
from the Company or a holder or holders of Senior Indebtedness or from any
trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 601 of the Indenture, shall be
entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for
in this Section 6.1 at least two Business Days prior to the date upon which
by the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (or premium, if any) or
interest on any Debenture), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 601 of the
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company, as the case may be (or a trustee on behalf of
such holder), to establish that such notice has been given by a holder of
such Senior Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
such Senior Indebtedness to participate in any payment or distribution
pursuant to Article Fourteen of the Indenture, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of such Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under Article
Fourteen of the Indenture, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
10
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1. Listing on an Exchange.
If the Debentures are to be issued as a Global Debenture in
connection with the distribution of the Debentures to the holders of the
Preferred Securities issued by the Trust upon a Dissolution Event, the
Company will use its best efforts to list such Debentures on the New York
Stock Exchange, Inc. or on such other exchange as the Preferred Securities
are then listed.
ARTICLE VIII
FORM OF DEBENTURE
SECTION 8.1. Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This Debenture
is a Global Debenture within the meaning of the Indenture hereinafter referred
to and is registered in the name of a Depositary or a nominee of a Depositary.
This Debenture is exchangeable for Debentures registered in the name of a person
other than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Debenture (other than a
transfer of this Debenture as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative of
The Depositary Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any
Debenture issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depositary Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
No._________________________
$ __________________________
CUSIP No.___________________
11
OGE ENERGY CORP.
____% JUNIOR SUBORDINATED DEBENTURE
DUE 2039
OGE ENERGY CORP., an Oklahoma corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ______________, or registered
assigns, the principal sum of ______________ Dollars ($_________) on
___________, __________, and to pay interest on said principal sum from
____________, 1999, or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears on
March 31, June 30, September 30 and December 31 of each year commencing December
31, 1999, at the rate of ____% per annum until the principal hereof shall have
become due and payable, and on any overdue principal and premium, if any, and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum compounded quarterly. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full quarterly period for which
interest is computed, interest shall be computed on the basis of a 30-day month
and, for periods of less than a month, the actual number of days elapsed per
30-day month. In the event that any date on which interest is payable on this
Debenture is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more predecessor securities, as defined in said Indenture) is
registered at the close of business on the regular record date for such interest
installment, which shall be the close of business on the business day next
preceding such Interest Payment Date. [IF PURSUANT TO THE PROVISIONS OF THE
INDENTURE THE DEBENTURES ARE NO LONGER REPRESENTED BY A GLOBAL DEBENTURE --
which shall be the close of business on the fifteenth day next preceding such
Interest Payment Date.] Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the registered Holders
on such regular record date and may be paid to the Person in whose name this
Debenture (or one or more predecessor securities) is registered at the close of
business on a special record date to be fixed by the Trustee for the payment of
such defaulted interest, notice whereof shall be given to the registered Holders
of this series of Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debentures may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. The principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or agency of the
Trustee maintained for that purpose in any coin or currency of the United States
of America that at the time of payment is legal tender for payment of public and
private debts; provided, however, that
12
payment of interest may be made at the option of the Company by check mailed
to the registered Holder at such address as shall appear in the Security
Register. Notwithstanding the foregoing, so long as the Holder of this
Debenture is the Property Trustee, the payment of the principal of (and
premium, if any) and interest on this Debenture will be made at such place
and to such account as may be designated by the Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is
issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Debenture, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his or
her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each
Holder hereof, by his or her acceptance hereof, hereby waives all notice of
the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated:___________________________
OGE ENERGY CORP.
By:__________________________________
Name:
Title:
Attest:
By:____________________________
Name:
Title:
13
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures described in
the within-mentioned Indenture.
By:___________________________ By:___________________________
as Trustee as Authentication Agent
or
By:____________________________ By:___________________________
Authorized Signatory Authorized Signatory
14
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Securities of
the Company (herein sometimes referred to as the "Securities"), specified in
the Indenture, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of __________, 1999, duly executed and
delivered between the Company and Bank of Oklahoma, National Association, as
Trustee (the "Trustee"), as supplemented by the First Supplemented Indenture
dated as of __________, 1999, between the Company and the Trustee (the
Indenture as so supplemented, the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Securities. By
the terms of the Indenture, the Securities are issuable in series that may
vary as to amount, date of maturity, rate of interest and in other respects
as provided in the Indenture. This series of Securities is limited in
aggregate principal amount as specified in said First Supplemental Indenture.
Except as provided in the next paragraph, the Debentures may not be
redeemed by the Company prior to ____________, ________. The Company shall
have the right to redeem this Debenture at the option of the Company, without
premium or penalty, in whole or in part at any time and from time to time on
or after ____________, ________ (an "Optional Redemption"), at a redemption
price equal to 100% of the principal amount plus any accrued but unpaid
interest, including any Compounded Interest, if any, to the date of such
redemption (the "Optional Redemption Price"). Any redemption pursuant to this
paragraph will be made upon not less than 30 nor more than 60 days' notice,
at the Optional Redemption Price.
If, at any time, a Special Event (as defined below) shall occur or
be continuing, the Company shall have the right at any time, upon not less
than 30 nor more than 60 days' notice, to redeem the Debentures in whole or
in part for cash at the Optional Redemption Price within 90 days following
the occurrence of such Special Event.
"Special Event" means a Tax Event or an Investment Company Event.
"Tax Event" means the receipt by the Trust of an opinion of
independent tax counsel experienced in such matters, to the effect that, as a
result of (a) any amendment to, change in or announced proposed change in the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or (b) any official
administrative pronouncement or judicial decision interpreting or applying
such laws or regulations, which amendment or change is effective or proposed
change, pronouncement or decision is announced on or after the Closing Date,
there is more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date of such opinion, subject to United States federal
income tax with respect to income received or accrued on the Debentures, (ii)
interest payable by the Company on the Debentures is not, or within 90 days
of the date of such opinion, will not be, deductible by the Company, in whole
or in part, by the Company for United States federal income tax purposes, or
(iii) the Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
15
"Investment Company Event" means the receipt by the Trust of an
opinion of counsel, rendered by a law firm having a recognized national
securities practice, to the effect that, as a result of the occurrence of a
change in law or regulation or a written change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), there is more
than an insubstantial risk that the Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act, which Change in 1940 Act Law becomes effective on or after
_________.
Any redemption pursuant to the occurrence of a Tax Event will be
made upon not less than 30 days nor more than 60 days notice, at the Optional
Redemption Price.
If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption, the Debentures will be redeemed pro rata
or by lot or by any other method utilized by the Trustee; provided that if,
at the time of redemption, the Debentures are registered as a Global
Debenture, the Depositary shall determine the principal amount of such
Debentures held by each beneficial holder thereof to be redeemed in
accordance with its procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the
Holders of the Debentures; provided, however, that no such supplemental
indenture shall (i) reduce the principal amount thereof, or reduce the rate
or extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof, without the consent of the Holder of
each Debenture so affected, or (ii) reduce the aforesaid percentage of
Debentures, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holders of each Debenture
then outstanding and affected thereby. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the
Securities of any series at the time outstanding affected thereby, on behalf
of all of the Holders of the Debentures of such series, to waive any Default
or Event of Default with respect to such series, and its consequences, except
a Default or Event of Default in the payment of the principal of or premium,
if any, or interest on any of the Securities of such series or in respect of
a provision which under the Indenture cannot be
16
modified or amended without the consent of the Holder of each Outstanding
Security of that series affected. Any such consent or waiver by the
registered Holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Debenture and of any Debenture issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at
the rate and in the money herein prescribed.
So long as the Company is not in default in the payment of interest
on the Debentures, the Company shall have the right at any time during the
term of the Debentures from time to time to extend the interest payment
period of such Debentures for up to 20 consecutive quarters (an "Extended
Interest Payment Period"), at the end of which period the Company shall pay
all interest then accrued and unpaid (together with the interest thereon at
the rate specified for the Debentures to the extent that payment of such
interest is enforceable under applicable law). In the event that the Company
exercises this right, then (a) the Company shall not declare or pay dividends
on, make distributions with respect to, or redeem, purchase or acquire, or
make a liquidation payment with respect to, any of its capital stock (other
than (i) dividends or distributions by way of issuance of the Company's
common stock, (ii) payment under the guarantee in respect of the Securities,
(iii) dividends in connection with the implementation of a shareholder's
rights plan, or the issuing of stock under such a plan or the repurchase of
such rights or (iv) purchases or acquisitions of shares of its common stock
in connection with the satisfaction by the Company of its obligations under
any employee benefit plans or the satisfaction by the Company of its
obligations pursuant to any contract or security requiring the Company to
purchase shares of its common stock) or make any guarantee payment with
respect thereto, and (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any
Indebtedness (including guarantees) issued by the Company, any of its
subsidiaries or any other Person, that rank pari passu with or junior to such
Debentures or make any guarantee payments with respect to the foregoing
(other than pursuant to the Preferred Securities Guarantee). Prior to the
termination of any such Extended Interest Payment Period, the Company may
further extend the interest payment period; provided, that such Extended
Interest Payment Period, together with all such previous and further
extensions thereof, may not exceed 20 consecutive quarters or extend beyond
the maturity date of the Debentures. The Company may prepay at any time all
or any portion of the interest accrued during an Extended Interest Payment
Period. At the termination of any such Extended Interest Payment Period and
upon the payment of all accrued and unpaid interest and any additional amount
then due, the Company may commence a new Extended Interest Payment Period,
subject to the above requirements.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered Holder
hereof on the Security Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Trustee
in Oklahoma City and State of Oklahoma accompanied by a written instrument or
17
instruments of transfer in form satisfactory to the Company or the Trustee
duly executed by the registered Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Debentures of authorized
denominations and for the same aggregate principal amount and series will be
issued to the designated transferee or transferees. No service charge will be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security
Registrar may deem and treat the registered Holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone
other than the Security Registrar) for the purpose of receiving payment of or
on account of the principal hereof and premium, if any, and interest due
hereon and for all other purposes, and neither the Company nor the Trustee
nor any paying agent nor any Security Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
The Indenture imposes certain limitations on the ability of the
Company to, among other things, merge or consolidate with any other Person or
sell, assign, transfer or lease all or substantially all of its properties or
assets. All such covenants and limitations are subject to a number of
important qualifications and exceptions. The Company must report periodically
to the Trustee on compliance with the covenants in the Indenture.
[The Debentures of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof.]
[This Global Debenture is exchangeable for Debentures in definitive form only
under certain limited circumstances set forth in the Indenture. Debentures of
this series so issued are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof.] As provided in the
Indenture and subject to certain limitations [herein and] therein set forth,
Debentures of this series (so issued) are exchangeable for a like aggregate
principal amount of Debentures of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
18
ARTICLE IX
ORIGINAL ISSUE OF DEBENTURES
SECTION 9.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of $__________ may,
upon execution of this First Supplemental Indenture, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Debentures to or upon the
written order of the Company, signed by its Chairman, its President, or any
Vice President and its Treasurer or an Assistant Treasurer, without any
further action by the Company.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental Indenture,
is in all respects ratified and confirmed, and this First Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the
extent herein and therein provided.
SECTION 10.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
First Supplemental Indenture.
SECTION 10.3. Governing Law.
This First Supplemental Indenture and each Debenture shall be deemed to
be a contract made under the internal laws of the State of Oklahoma, and for all
purposes shall be construed in accordance with the laws of said State.
SECTION 10.4. Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
First Supplemental Indenture or of the Debentures, but this First
Supplemental Indenture and the Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein
or therein.
19
SECTION 10.5. Counterparts.
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
OGE ENERGY CORP.
By:______________________________
Name: James R. Hatfield
Title: Vice President and Treasurer
[Seal]
Attest:
By:__________________________
Name: _______________________
Title: _______________________
BANK OF OKLAHOMA, NATIONAL
ASSOCIATION, as Trustee
By:______________________________
Name:
Title:
20