<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[X] Annual Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 For the fiscal year ended December 31, 1996
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Commission File Number 1-12473
ENRON CAPITAL TRUST I
(Exact name of registrant as specified in its charter)
Delaware 76-0518948
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
1400 Smith Street, Houston Texas 77002
(Address of principal executive offices) (Zip Code)
(713) 853-6161
(Registrant's telephone number, including area code)
Securities registered pursuant Name of Exchange on
to Section 12(b) of the Act: which registered:
8.30% Trust Preferred Securities New York Stock Exchange
(Title of Class)
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
[X] Yes [ ] No
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
As of December 31, 1996, the registrant had an aggregate of 8,000,000 8.30%
Trust Preferred Securities and 247,440 8.30% Trust Common Securities
outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
None.
<PAGE> 2
PART I
ITEM 1. BUSINESS.
Enron Capital Trust I (the "Trust") is a statutory business trust
created under the Delaware Business Trust Act, as amended (the "Trust Act"),
pursuant to an amended and restated declaration of trust (the "Declaration") and
the filing of a certificate of trust with the Secretary of State of the State of
Delaware. The Trust's sole assets are 8,247,440 8.30% Partnership Preferred
Securities ($25 liquidation amount per security) representing an 85% limited
partnership interest in Enron Preferred Funding, L.P., a Delaware limited
partnership (the "Partnership"). Ownership of the assets of the Trust is
evidenced by an aggregate of 8,000,000 8.30% Trust Preferred Securities (the
"Trust Preferred Securities"), which are listed and traded on the New York Stock
Exchange under the symbol "ENE PrT", and 247,440 Trust Common Securities (the
"Trust Common Securities," and, together with the Trust Preferred Securities,
the "Trust Securities"), all of which are owned by Enron Corp., a Delaware
corporation ("Enron"). The Trust makes distributions on the Trust Securities to
the extent it receives distributions from the Partnership on the Partnership
Preferred Securities. Payments on the Partnership Preferred Securities represent
the sole source of revenue for the Trust. Distributions on the Trust Securities
are guaranteed by Enron, but only to the extent that the Trust has available
funds to pay such distributions. The Trust was created for the sole purpose of
issuing the Trust Securities, investing the proceeds of such issuance in the
Partnership Preferred Securities and engaging in only those other activities
necessary or incidental thereto. The Trust Securities are subject to redemption
at any time on or after March 31, 2002 and earlier in the event of certain tax
law changes or other events.
The general partner of the Partnership is Enron, which owns a 15%
general partnership interest in the Partnership. Since completion of the
offering of the Trust Preferred Securities on November 21, 1996, the assets of
the Partnership have been invested primarily in a $181,926,000 principal amount
7.75% Subordinated Debenture due 2016 of Enron (the "Enron Debenture") and
$29,108,000 principal amount 7.75% Debentures due 2016 of each of Enron Capital
& Trade Resources Corp. and Enron Pipeline Company (the "Subsidiary Debentures"
and, together with the Enron Debenture, the "Debentures"), each of which is a
wholly owned subsidiary of Enron. The obligations under the Subsidiary
Debentures are guaranteed by Enron. The respective issuers of the Debentures
have certain rights to elect to defer any payments of principal and interest on
the Debentures for up to five years at a time. In addition to the Debentures,
the Partnership owns an aggregate of approximately $2,685,000 in short-term,
investment grade debt securities (the "Eligible Debt Securities"). Under certain
circumstances, upon repayment of one or more of the Debentures, the assets of
the Partnership may be reinvested in one or more debt securities of Enron or its
subsidiaries. Payments of interest and principal on the Enron Debenture and the
Subsidiary Debentures (or the guarantees thereof) and the Eligible Debt
Securities are the sole source of revenue for the Partnership. The Partnership
pays distributions to the Trust as holder of the Partnership Preferred
Securities when as and if Enron, as the general partner, determines to do so,
although Enron has no obligation to do so.
For more information concerning the Trust, the Partnership and the
rights of the holders of the Trust Securities, see the Amended and Restated
Declaration of Trust relating to the Trust, the Amended and Restated Agreement
of Limited Partnership relating to the Partnership, the Indentures relating to
each of the Debentures and the Guarantee Agreements of Enron with respect to the
Trust Preferred Securities, the Partnership Preferred Securities and the
Subsidiary Debentures, each of which is included as an exhibit to this Form
10-K.
2
<PAGE> 3
Enron, a Delaware corporation organized in 1930, is an integrated
natural gas and electricity company headquartered in Houston, Texas. The common
stock of Enron is traded on the New York Stock Exchange under the symbol "ENE."
Essentially all of Enron's operations are conducted through its subsidiaries and
affiliates, which are principally engaged in the gathering, transportation and
wholesale marketing of natural gas to markets throughout the United States and
internationally through approximately 36,000 miles of natural gas pipelines; the
exploration for and production of natural gas and crude oil in the United States
and internationally; the production, purchase, transportation and worldwide
marketing of natural gas liquids and refined petroleum products; the independent
(i.e., non-utility) development, promotion, construction and operation of power
plants, natural gas liquids facilities and pipelines in the United States and
internationally; and the non-price regulated purchasing and marketing of
electricity and other energy related commitments.
The location of the principal executive offices of the Trust and the
Partnership is c/o Enron Corp., 1400 Smith Street, Houston, Texas 77002, and its
phone number at such address is (713) 853-6161.
NOTE: Because the Trust and the Partnership are special purpose financing
entities with no separate business operations, the only assets of the Trust are
the Partnership Preferred Securities, and substantially all of the assets of the
Partnership consist of a debt security of Enron and debt securities of
subsidiaries of Enron that are guaranteed by Enron, the Trust does not believe
that financial statements for the Trust or the Partnership are meaningful.
Accordingly, financial statements and related financial information have not
been included in this Form 10-K. For further information concerning Enron and
its subsidiaries, including financial statements and other financial
information, see the Annual Report on Form 10-K of Enron for the year ended
December 31, 1996 as filed with the Securities and Exchange Commission, a copy
of which may be obtained from the corporate secretary of Enron at the address
listed on the cover of this Form 10-K.
ITEM 2. PROPERTIES.
Not applicable.
ITEM 3. LEGAL PROCEEDINGS.
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
Not applicable.
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS.
Since approximately November 21, 1996, the Trust Preferred Securities have
been listed on the New York Stock Exchange ("NYSE") under the symbol "ENE PrT".
From such date through December 31, 1996, the high and low sales prices of the
Trust Preferred Securities on the NYSE were $25.75 and
3
<PAGE> 4
$24.75, respectively. As of March 14, 1997, the approximate number of holders of
record of the Trust Preferred Securities was 102. All of the Trust Common
Securities are held by Enron.
On December 31, 1996, the Trust made the first scheduled regular quarterly
distribution on the Trust Securities of $.23056 per Trust Security, such initial
distribution accruing from November 21, 1996, the date of original issuance of
the Trust Securities. The Trust expects to pay distributions on the Trust
Securities of $.51875 per quarter to the extent the Trust has funds available
for the payment of such distributions.
The Trust issued an aggregate of 247,440 Trust Common Securities to Enron
on November 21, 1996 in a transaction exempt from the Securities Act of 1933
pursuant to Section 4(2) thereof.
ITEM 6. SELECTED FINANCIAL AND OPERATING DATA.
See Note to Item 1.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
See Note to Item 1.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
See Note to Item 1.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
Not Applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
The Trust is administered by five trustees (the "Trustees"). Three of
the Trustees, Keith A. Crane, Lea W. Fastow and Phillip M. Sisneros (the
"Regular Trustees") are employees of Enron or its subsidiaries. The fourth
trustee is The Chase Manhattan Bank, which is unaffiliated with Enron and acts
as indenture trustee for purposes of compliance with the provisions of the Trust
Indenture Act (the "Property Trustee"). The fifth trustee, Chase Manhattan Bank
Delaware, is also unaffiliated with Enron and serves as Delaware Trustee to
fulfill a requirement of the Trust Act.
ITEM 11. EXECUTIVE COMPENSATION.
The Regular Trustees are not compensated by the Trust or Enron for
their services as trustees. The Property Trustee and Delaware Trustee are not
compensated by the Trust but are paid customary compensation for their services
by Enron.
4
<PAGE> 5
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
Not applicable.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
Except as described above under Item 1, the Trust is not party to any
transactions with affiliates.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K.
(a)(1) Financial Statements
None.
(a)(2) Financial Statement Schedules
None.
(a)(3) List of Exhibits
4.1 Certificate of Trust (incorporated by reference to Exhibit
4(a) of the Registration Statement on Form S-1 of the
Trust (No. 333-184967)).
4.2 Amended and Restated Declaration of Trust dated as of
November 18, 1996
4.3 Amended and Restated Agreement of Limited Partnership of
the Enron Preferred Funding L.P. dated as of
November 21, 1996
4.4 Trust Preferred Guarantee Agreement dated as of
November 21, 1996
4.5 Partnership Preferred Guarantee Agreement dated as of
November 21, 1996
4.6 Indenture dated as of November 21, 1996 relating to the
Enron's 7.75% Subordinated Debentures due 2016
4.7 Indenture dated as of November 21, 1996 relating to
Enron Pipeline Company's 7.75% Debentures due 2016
4.8 Indenture dated as of November 21, 1996 relating to the
Enron Capital & Trade Resources Corp. 7.75% Debentures
due 2016
4.9 Guarantee Agreement of Enron dated as of November 21, 1996
relating to Enron Pipeline Company's 7.75% Debentures
due 2016
4.10 Guarantee Agreement of Enron dated as of November 21, 1996
relating to Enron Capital & Trade Resources Corp. 7.75%
Debentures due 2016
4.11 Form of certificate representing Trust Preferred Securities
(included in Exhibit 4.2)
27.1 Financial Data Schedule
(b) Reports on Form 8-K.
No reports on Form 8-K have been filed during the last quarter of the
period covered by this report.
5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ENRON CAPITAL TRUST I
(Registrant)
Date: March 26, 1997 By: /s/ Keith A. Crane
------------------------------
Name: Keith A. Crane
Title: Regular Trustee
Pursuant to the requirements of the Securities Exchange Act of 1934,
this Report has been signed below by the following persons on behalf of the
Registrant and in the capacities indicated as of March 26, 1997.
Name Title
/s/ Keith A. Crane Regular Trustee
- ----------------------------
Keith A. Crane
/s/ Lea W. Fastow Regular Trustee
- ----------------------------
Lea W. Fastow
/s/ Phillip M. Sisneros Regular Trustee
- ----------------------------
Phillip M. Sisneros
<PAGE> 7
EXHIBIT INDEX
4.1 Certificate of Trust (incorporated by reference to Exhibit
4(a) of the Registration Statement on Form S-1 of the
Trust (No. 333-184967)).
4.2 Amended and Restated Declaration of Trust dated as of
November 18, 1996
4.3 Amended and Restated Agreement of Limited Partnership of
the Enron Preferred Funding L.P. dated as of
November 21, 1996
4.4 Trust Preferred Guarantee Agreement dated as of
November 21, 1996
4.5 Partnership Preferred Guarantee Agreement dated as of
November 21, 1996
4.6 Indenture dated as of November 21, 1996 relating to the
Enron's 7.75% Subordinated Debentures due 2016
4.7 Indenture dated as of November 21, 1996 relating to
Enron Pipeline Company's 7.75% Debentures due 2016
4.8 Indenture dated as of November 21, 1996 relating to the
Enron Capital & Trade Resources Corp. 7.75% Debentures
due 2016
4.9 Guarantee Agreement of Enron dated as of November 21, 1996
relating to Enron Pipeline Company's 7.75% Debentures
due 2016
4.10 Guarantee Agreement of Enron dated as of November 21, 1996
relating to Enron Capital & Trade Resources Corp. 7.75%
Debentures due 2016
4.11 Form of certificate representing Trust Preferred Securities
(included in Exhibit 4.2)
27.1 Financial Data Schedule
<PAGE> 1
EXHIBIT 4.2
================================================================================
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
ENRON CAPITAL TRUST I
DATED AS OF NOVEMBER 18, 1996
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
-----------
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
--------------------------------
SECTION 2.2 Lists of Holders of Trust Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
------------------------------------
SECTION 2.3 Reports by the Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
-------------------------------
SECTION 2.4 Periodic Reports to Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
------------------------------------
SECTION 2.5 Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . 9
------------------------------------------------
SECTION 2.6 Trust Enforcement Events; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
--------------------------------
SECTION 2.7 Trust Enforcement Event; Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
-------------------------------
ARTICLE III
ORGANIZATION
SECTION 3.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
----
SECTION 3.2 Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
------
SECTION 3.3 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
-------
SECTION 3.4 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
---------
SECTION 3.5 Title to Property of the Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
------------------------------
SECTION 3.6 Powers and Duties of the Regular Trustees . . . . . . . . . . . . . . . . . . . . . . . . . 11
-----------------------------------------
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees . . . . . . . . . . . . . . . . . . . 13
----------------------------------------------------
SECTION 3.8 Powers and Duties of the Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 14
-----------------------------------------
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee . . . . . . . . . . . . . . . . 15
-----------------------------------------------------------
SECTION 3.10 Certain Rights of Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
----------------------------------
SECTION 3.11 Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
----------------
SECTION 3.12 Execution of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
----------------------
SECTION 3.13 Not Responsible for Recitals or Issuance of Trust Securities . . . . . . . . . . . . . . . 18
------------------------------------------------------------
SECTION 3.14 Duration of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
-----------------
SECTION 3.15 Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
-------
ARTICLE IV
SPONSOR
SECTION 4.1 Responsibilities of the Sponsor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
-------------------------------
SECTION 4.2 Indemnification and Expenses of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . 20
-------------------------------------------
ARTICLE V
TRUST COMMON SECURITIES HOLDER
SECTION 5.1 Company's Purchase of Trust Common Securities . . . . . . . . . . . . . . . . . . . . . . . 21
---------------------------------------------
SECTION 5.2 Covenants of the Trust Common Securities Holder . . . . . . . . . . . . . . . . . . . . . . 21
-----------------------------------------------
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE VI
TRUSTEES
SECTION 6.1 Number of Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
------------------
SECTION 6.2 Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
----------------
SECTION 6.3 Property Trustee; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
-----------------------------
SECTION 6.4 Qualifications of Regular Trustees and Delaware Trustee Generally . . . . . . . . . . . . . 22
-----------------------------------------------------------------
SECTION 6.5 Regular Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
----------------
SECTION 6.6 Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
----------------
SECTION 6.7 Appointment, Removal and Resignation of Trustees . . . . . . . . . . . . . . . . . . . . . 23
------------------------------------------------
SECTION 6.8 Vacancies among Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
------------------------
SECTION 6.9 Effect of Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
-------------------
SECTION 6.10 Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
--------
SECTION 6.11 Delegation of Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
-------------------
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . 25
-----------------------------------------------------------
ARTICLE VII
DISTRIBUTIONS
SECTION 7.1 Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
-------------
ARTICLE VIII
ISSUANCE OF TRUST SECURITIES
SECTION 8.1 Designation and General Provisions Regarding Trust Securities . . . . . . . . . . . . . . . 26
-------------------------------------------------------------
SECTION 8.2 Redemption of Trust Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
------------------------------
SECTION 8.3 Redemption Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
---------------------
SECTION 8.4 Voting Rights of Trust Preferred Securities . . . . . . . . . . . . . . . . . . . . . . . . 29
-------------------------------------------
SECTION 8.5 Voting Rights of Trust Common Securities . . . . . . . . . . . . . . . . . . . . . . . . . 31
----------------------------------------
SECTION 8.6 Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
------------
SECTION 8.7 Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
-------
SECTION 8.8 Acceptance of Guarantee and Agreements, Limited Partnership Agreement. . . . . . . . . . . 32
---------------------------------------------------------------------
ARTICLE IX
TERMINATION AND LIQUIDATION OF THE TRUST
SECTION 9.1 Termination of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
--------------------
SECTION 9.2 Liquidation Distribution Upon Termination and Dissolution of the Trust . . . . . . . . . . 33
----------------------------------------------------------------------
ARTICLE X
TRANSFER OF INTERESTS
SECTION 10.1 Transfer of Trust Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
----------------------------
SECTION 10.2 Transfer of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
------------------------
SECTION 10.3 Deemed Security Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
-----------------------
SECTION 10.4 Book-Entry Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
--------------------
SECTION 10.5 Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
--------------------------
SECTION 10.6 Appointment of Successor Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . 36
----------------------------------------
SECTION 10.7 Definitive Trust Preferred Security Certificates . . . . . . . . . . . . . . . . . . . . . 36
------------------------------------------------
SECTION 10.8 Mutilated, Destroyed, Lost or Stolen Certificates . . . . . . . . . . . . . . . . . . . . . 36
-------------------------------------------------
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE XI
LIMITATION OF LIABILITY OF
HOLDERS OF TRUST SECURITIES, TRUSTEES OR OTHERS
SECTION 11.1 Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
---------
SECTION 11.2 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
-----------
SECTION 11.3 Fiduciary Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
--------------
SECTION 11.4 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
---------------
SECTION 11.5 Outside Businesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
------------------
ARTICLE XII
ACCOUNTING
SECTION 12.1 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
-----------
SECTION 12.2 Certain Accounting Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
--------------------------
SECTION 12.3 Banking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
-------
SECTION 12.4 Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
-----------
ARTICLE XIII
AMENDMENTS AND MEETINGS
SECTION 13.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
----------
SECTION 13.2 Meetings of the Holders of Trust Securities; Action by Written Consent . . . . . . . . . . 44
----------------------------------------------------------------------
ARTICLE XIV
REPRESENTATIONS OF PROPERTY TRUSTEEAND DELAWARE TRUSTEE
SECTION 14.1 Representations and Warranties of Property Trustee . . . . . . . . . . . . . . . . . . . . 45
--------------------------------------------------
SECTION 14.2 Representations and Warranties of Delaware Trustee . . . . . . . . . . . . . . . . . . . . 45
--------------------------------------------------
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
-------
SECTION 15.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
-------------
SECTION 15.3 Intention of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
------------------------
SECTION 15.4 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
--------
SECTION 15.5 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
----------------------
SECTION 15.6 Partial Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
----------------------
SECTION 15.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
------------
EXHIBIT A-1 FORM OF PREFERRED SECURITY
CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . A2-1
</TABLE>
iii
<PAGE> 5
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
- ---------------------------------------------------------------------- --------------
<S> <C>
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(a)
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3, 12.2(b)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9(b)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9(a)
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9(a)
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6, 8.4, 8.5
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6(e)
</TABLE>
_______________
* This Cross-Reference Table does not constitute part of the Declaration
and shall not affect the interpretation of any of its terms or
provisions.
iv
<PAGE> 6
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
ENRON CAPITAL TRUST I
November 18, 1996
AMENDED AND RESTATED DECLARATION OF TRUST (the "Declaration") dated
and effective as of November 18, 1996, by the Trustees (as defined herein), the
Sponsor (as defined herein) and by the Holders, from time to time, of undivided
beneficial interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, certain of the Trustees and the Sponsor established ENRON
CAPITAL TRUST I (the "Trust"), a trust under the Delaware Business Trust Act
(the "Trust Act") pursuant to a Declaration of Trust dated as of October 25,
1996, (the "Original Declaration") and a Certificate of Trust filed with the
Secretary of State of the State of Delaware on October 28, 1996, for the sole
purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in the Partnership Preferred Securities;
WHEREAS, as of the date hereof, no interests in the Trust have been
issued; and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
wish to amend and restate each and every term and provision of the Original
Declaration.
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust,
the Trustees declare that all assets contributed to the Trust will be held in
trust for the benefit of the Holders, from time to time, of the securities
representing undivided beneficial ownership interests in the assets of the
Trust issued hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration" are
to this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections
and Annexes and Exhibits are to Articles and Sections of and Annexes and
Exhibits to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration or
unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice
versa; and
(g) a term used in this Agreement and not otherwise defined
herein shall have the meaning ascribed to such term in the Limited Partnership
Agreement.
<PAGE> 7
"Affiliate" means, with respect to any specified person, any other
person that directly or indirectly controls or is controlled by, or is under
common control with such specified person.
"Affiliate Investment Instruments" has the meaning set forth in
Section 7.1 of the Limited Partnership Agreement.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Book-Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as set forth in Section 10.4 of this
Declaration.
"Business Day" means any day other than a day on which banking
institutions in The City of New York are authorized or required by law to
close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"Certificate" means a Trust Common Security Certificate or a Trust
Preferred Security Certificate.
"Change in 1940 Act Law" means any change on or after the date hereof
in law or regulation or a change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority with the result that the Trust is or will be considered an
"investment company" which is required to be registered under the 1940 Act.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Trust Preferred Securities and in whose name or in the name
of a nominee of that organization shall be registered a Global Certificate and
which shall undertake to effect book- entry transfers and pledges of beneficial
interests in the Trust Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book-entry transfers and pledges of interest in securities
deposited with the Clearing Agency.
"Closing Date" means November 21, 1996.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security Holder of the Trust" means the Company in its
capacity as Holder of the Trust Common Security.
"Company" means Enron Corp., a Delaware corporation.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, director, shareholder, member, partner, employee,
representative or agent of the Trust or its Affiliates.
"Compounded Distributions" has the meaning set forth in Section 7.1(a)
of this Declaration.
2
<PAGE> 8
"Corporate Trust Office" means the principal corporate trust office of
the Property Trustee at which, at any particular time, its corporate trust
business shall be administered, which office at the date hereof is located at
450 West 33rd Street, 15th Floor, New York, NY 10001.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Trust Securities.
"Definitive Trust Preferred Security Certificates" has the meaning set
forth in Section 10.4 of this Declaration.
"Delaware Trustee" has the meaning set forth in Section 6.2 of this
Declaration.
"Distribution" has the meaning set forth in Section 7.1(a) of this
Declaration.
"DTC" means the Depository Trust Company, the initial Clearing Agency.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
11.4(b) of this Declaration.
"Fiscal Period" has the meaning set forth in Section 1.1 of the
Limited Partnership Agreement.
"Fiscal Year" has the meaning set forth in Section 12.1 of this
Declaration.
"General Partner" means the Company in its capacity as the general
partner of the Partnership, its permitted successors, or any successor general
partner in the Partnership admitted as such pursuant to the Limited Partnership
Agreement.
"Global Certificate" has the meaning set forth in Section 10.4 of this
Declaration.
"Holder" means a Person in whose name a Certificate representing a
Trust Security is registered, such Person being a beneficial owner within the
meaning of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Initial Debentures" has the meaning set forth in Section 7.1(b) of
the Limited Partnership Agreement.
"Investment Affiliate" means the Company or any corporation,
partnership, limited liability company or other entity (other than the
Partnership or the Trust) that is controlled by the Company and is not an
investment company by reason of Section 3(a) or 3(b) of the 1940 Act.
"Investment Company" means an investment company as defined in the
1940 Act.
"Investment Guarantee" means any guarantee by the Company with respect
to (1) payment of interest, principal and other payment terms of Affiliate
Investment Instruments that are debt securities of an Investment Affiliate and
(2) the payment of dividends, distributions and other payment terms of
Affiliate Investment Instruments that are preferred or preference stock of an
Investment Affiliate when, as and if declared by such Investment Affiliate.
"Legal Action" has the meaning set forth in Section 3.6(h) of this
Declaration.
3
<PAGE> 9
"Limited Partnership Agreement" means the Amended and Restated
Agreement of Limited Partnership of Enron Preferred Funding, L.P. to be dated
as of November 21, 1996.
"List of Holders" has the meaning set forth in Section 2.2(a) of this
Declaration.
"Majority in liquidation amount of the Trust Securities" means, except
as provided in the terms of the Trust Preferred Securities or by the Trust
Indenture Act, Holder(s) of outstanding Trust Securities voting together as a
single class or, as the context may require, Holders of outstanding Trust
Preferred Securities or Holders of outstanding Trust Common Securities voting
separately as a class, who are the record owners of more than 50% of the
aggregate liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all outstanding
Trust Securities or all outstanding Trust Securities of the relevant class, as
the case may be.
"Ministerial Action" means, a ministerial action (such as filing a
form or making an election or pursuing some other similar reasonable measure)
which in the sole judgment of the Company has or will cause no adverse effect
on the Trust, the Partnership, the Company, or the holders of the Trust
Securities and will involve no material cost.
"Nasdaq" means the National Association of Securities Dealers
Automated Quotation System.
"1940 Act" means the Investment Company Act of 1940, as amended from
time to time, or any successor legislation.
"Officers' Certificate" means, with respect to any Person (who is not
an individual), a certificate signed by two authorized officers of such Person,
and, with respect to a natural person, a certificate signed by such person.
Any Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Declaration shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Partnership" means Enron Preferred Funding, L.P., a Delaware limited
partnership formed pursuant to the Limited Partnership Agreement.
"Partnership Enforcement Event" has the meaning set forth in Section
6.2(h)(i) of the Limited Partnership Agreement.
"Partnership Guarantee" means the Partnership Guarantee Agreement to
be dated as of November 21, 1996, by the Company in favor of the Partnership
Preferred Security Holders with respect to the Partnership Preferred
Securities, as amended or supplemented from time to time.
"Partnership Preferred Securities" has the meaning set forth in
Section 1.1 of the Limited Partnership Agreement.
4
<PAGE> 10
"Partnership Special Event" has the meaning set forth in Section 1.1
of the Limited Partnership Agreement.
"Payment Amount" has the meaning set forth in Section 7.1(a) of this
Declaration.
"Paying Agent" has the meaning set forth in Section 3.8(g) of this
Declaration.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever
nature.
"Preferred Security Beneficial Owner" means, with respect to a
Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of
a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, or each case in
accordance with the rules of such Clearing Agency).
"Property Account" has the meaning set forth in Section 3.8(c) of this
Declaration.
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 6.3 of this Declaration.
"Pro Rata" means, in reference to any distributions on or redemptions
of Trust Securities or the distribution of Partnership Preferred Securities or
any other payment with respect to Trust Securities in connection with a Trust
Special Event or liquidation of the Trust, pro rata to each Holder of Trust
Securities according to the aggregate liquidation amount of the Trust
Securities held by the relevant Holder in relation to the aggregate liquidation
amount of all Trust Securities outstanding.
"Quorum" means a majority of the Regular Trustees or, if there are
only two Regular Trustees, both of them.
"Redemption Price" has the meaning set forth in Section 8.2(a) of this
Declaration.
"Regular Trustee" has the meaning set forth in Section 6.1 of this
Declaration.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, any
officer within the Corporate Trust Office of the Property Trustee, including
any vice-president, any assistant vice-president, any secretary, any assistant
secretary, the treasurer, any assistant treasurer or other officer of the
Corporate Trust Office of the Property Trustee customarily performing functions
similar to those performed by any of the above designated officers, who has
direct responsibility for the administration of the Trust, and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Rule 3a-5" means Rule 3a-5 under the 1940 Act.
"Securities Act" means the Securities Act of 1933, as amended from
time to time or any successor legislation.
5
<PAGE> 11
"Special Representative" has the meaning set forth in Section
6.2(h)(i) of the Limited Partnership Agreement.
"Sponsor" means the Company or any successor entity in a merger,
consolidation or amalgamation, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in Section
6.7(b) of this Declaration.
"Successor Entity" has the meaning set forth in Section 3.15 of this
Declaration.
"Successor Property Trustee" has the meaning set forth in Section
6.7(b) of this Declaration.
"Successor Trust Securities" has the meaning set forth in Section 3.15
of this Declaration.
"Super Majority" has the meaning set forth in Section 2.6(a)(ii) of
this Declaration.
"Tax Action" means (a) an 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, (b)
a judicial decision interpreting, applying or clarifying such laws or
regulations, (c) an administrative pronouncement or action that represents an
official position (including a clarification of an official position) of the
governmental authority or regulatory body making such administrative
pronouncement or taking such action, or (d) a threatened challenge asserted in
connection with an audit of the Company or any of its subsidiaries, the
Partnership, or the Trust, or a threatened challenge asserted in writing
against any other taxpayer that has raised capital through the issuance of
securities that are substantially similar to the Initial Debentures, the
Partnership Preferred Securities, or the Trust Preferred Securities, which
amendment or change is adopted or which decision, pronouncement or proposed
change is announced or which action, clarification or challenge occurs on or
after the date of the prospectus related to the issuance of the Trust Preferred
Securities.
"10% in liquidation amount of the Trust Securities" means, except as
provided in the terms of the Trust Preferred Securities or by the Trust
Indenture Act, Holder(s) of outstanding Trust Securities voting together as a
single class or, as the context may require, Holders of outstanding Trust
Preferred Securities or Holders of outstanding Trust Common Securities voting
separately as a class, who are the record owners of 10% or more of the
aggregate liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all outstanding
Trust Securities or all outstanding Trust Securities of the relevant class, as
the case may be.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury Department, as such regulations may be amended from time to
time (including corresponding provisions of succeeding regulations).
"Trust Common Security" has the meaning set forth in Section 8.1 of
this Declaration.
"Trust Common Security Certificate" means a definitive certificate in
fully registered form representing a Common Security substantially in the form
of Exhibit A-2.
"Trust Common Securities Guarantee" means the Trust Common Securities
Guarantee Agreement to be dated as of November 21, 1996, entered into by the
Company, as Guarantor, for the benefit of the holders of the Trust Common
Securities.
"Trust Dissolution Tax Opinion" means an opinion of nationally
recognized independent tax counsel experienced in such matters to the effect
that there has been a Trust Tax Event.
6
<PAGE> 12
"Trust Enforcement Event" means the occurrence, at any time, of (i)
arrearages on distributions on the Trust Preferred Securities that shall exist
for six consecutive quarterly distribution periods, (ii) a default by the
Company in respect of any of its obligations under the Trust Preferred
Securities Guarantee or (iii) a Partnership Enforcement Event (as defined in
the Limited Partnership Agreement).
"Trust Guarantees" means the Trust Common Securities Guarantee and the
Trust Preferred Securities Guarantee, collectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"Trust Investment Company Event" means that the Company shall have
requested and received and shall have delivered to the Regular Trustees an
opinion of nationally recognized independent legal counsel experienced in such
matters to the effect that as a result of a Change in 1940 Act Law, the Trust
is or will be considered an "investment company" which is required to be
registered under the 1940 Act.
"Trust Liquidation" has the meaning set forth in Section 9.2(a) of
this Declaration.
"Trust Preferred Securities Guarantee" has the meaning set forth in
Section 1.1 of the Limited Partnership Agreement.
"Trust Liquidation Distribution" has the meaning set forth in Section
9.2(a) of this Declaration.
"Trust Preferred Security" has the meaning set forth in Section 8.1(a)
of this Declaration.
"Trust Preferred Security Beneficial Owner" means, with respect to a
Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of
a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Trust Preferred Security Certificate" means a certificate
representing a Trust Preferred Security substantially in the form of Exhibit
A-1.
"Trust Redemption Tax Opinion" means an opinion of nationally
recognized independent tax counsel (which may be counsel for the Company)
experienced in such matters that there has been a Trust Tax Event, and
following such Trust Tax Event there is more than an insubstantial risk that
interest payable by one or more of the Investment Affiliates with respect to
the Initial Debentures is not, or will not be, deductible by such Investment
Affiliate for United States federal income tax purposes even if the Partnership
Preferred Securities were distributed to the Holders of the Trust Securities in
liquidation of such Holders' interests in the Trust.
"Trust Securities" means the Trust Common Securities and the Trust
Preferred Securities.
"Trust Special Event" means a Trust Tax Event or a Trust Investment
Company Event.
"Trust Tax Event" means that the Company shall have requested and
received and shall have delivered to the Regular Trustees, an opinion of
nationally recognized tax counsel experienced in such matters (who may be
counsel for the Company) to the effect that there has been a Tax Action that
results in there being more than an insubstantial risk that (i) the Trust is,
or will be subject to United States federal income tax with respect to income
accrued or received on the Partnership Preferred Securities, (ii) the Trust is,
or will be subject to more than a de minimis amount of other taxes, duties or
other governmental charges or (iii) interest payable by one or more of the
Investment Affiliates with respect to the Initial Debentures is not, or will
not be, deductible by such Investment Affiliate for United States federal
income tax purposes.
7
<PAGE> 13
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Trust Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide the Property Trustee (i) within 14 days after each record
date for payment of Distributions, a list, in such form as the Property Trustee
may reasonably require, of the names and addresses of the Holders of the Trust
Securities ("List of Holders") as of such record date, provided that neither
the Sponsor nor the Regular Trustees on behalf of the Trust shall be obligated
to provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Property Trustee by the
Sponsor and the Regular Trustees on behalf of the Trust, and (ii) at any other
time, within 30 days of receipt by the Trust of a written request for a List of
Holders as of a date no more than 14 days before such List of Holders is given
to the Property Trustee. The Property Trustee shall preserve, in as current a
form as is reasonably practicable, all information contained in Lists of
Holders given to it or which it receives in the capacity as Paying Agent (if
acting in such capacity) provided that the Property Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year, the Property Trustee shall
provide to the Holders of the Trust Preferred Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The Property
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information
as required by Section 314 of the Trust Indenture Act (if any) and the
8
<PAGE> 14
compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in liquidation amount of Trust
Preferred Securities may, by vote, on behalf of the Holders of all of the Trust
Preferred Securities, waive any past Trust Enforcement Event in respect of the
Trust Preferred Securities and its consequences, provided that, if the
underlying event of default or Partnership Enforcement Event:
(i) is not waivable under the Trust Preferred Securities
Guarantee or the Limited Partnership Agreement, the Trust Enforcement
Event under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of the Holders of
greater than a Majority in liquidation amount of the Trust Preferred
Securities to be waived under the Trust Preferred Securities Guarantee
or the Partnership Preferred Securities to be waived under the Limited
Partnership Agreement (a "Super Majority"), the Trust Enforcement
Event under this Declaration may only be waived by the vote of the
Holders of at least the relevant Super Majority in liquidation amount
of the Trust Preferred Securities.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Trust Securities, as permitted by the Trust Indenture Act. Upon such waiver,
any such default shall cease to exist, and any Trust Enforcement Event with
respect to the Trust Preferred Securities arising therefrom shall be deemed to
have been cured, for every purpose of this Declaration, but no such waiver
shall extend to any subsequent or other default or Trust Enforcement Event with
respect to the Trust Preferred Securities or impair any right consequent
thereon. Any waiver by the Holders of the Trust Preferred Securities of Trust
Enforcement Events with respect to the Trust Preferred Securities shall also be
deemed to constitute a waiver by the Holders of the Trust Common Securities of
any such Trust Enforcement Event with respect to the Trust Common Securities
for all purposes of this Declaration without any further act, vote, or consent
of the Holders of the Trust Common Securities.
(b) The Holders of a Majority in liquidation amount of the Trust
Common Securities may, by vote, on behalf of the Holders of all of the Trust
Common Securities, waive any past Trust Enforcement Event with respect to the
Trust Common Securities and its consequences, provided that, if the underlying
event of default or Partnership Enforcement Event:
(i) is not waivable under the Trust Common Securities
Guarantee or the Limited Partnership Agreement, except where the
Holders of the Trust Common Securities are deemed to have waived such
Trust Enforcement Event under this Declaration as provided below in
this Section 2.6(b), the Trust Enforcement Event under this
Declaration shall also not be waivable; or
(ii) requires the consent or vote of the Holders of a
Super Majority to be waived, except where the Holders of the Trust
Common Securities are deemed to have waived such Trust Enforcement
Event under the Declaration as provided below in this Section 2.6(b),
the Trust Enforcement Event under this Declaration may only be waived
by the vote of the Holders of at least the relevant Super Majority in
liquidation amount of the Trust Common Securities;
9
<PAGE> 15
provided further, each Holder of Trust Common Securities will be deemed to have
waived any such Trust Enforcement Event and all Trust Enforcement Events with
respect to the Trust Common Securities and its consequences until all Trust
Enforcement Events with respect to the Trust Preferred Securities have been
cured, waived or otherwise eliminated, and until such Trust Enforcement Events
have been so cured, waived or otherwise eliminated, the Property Trustee will
be deemed to be acting solely on behalf of the Holders of the Trust Preferred
Securities and only the Holders of the Trust Preferred Securities will have the
right to direct the Property Trustee in accordance with the terms of the Trust
Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu
of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Trust Securities, as permitted
by the Trust Indenture Act. Subject to the foregoing provisions of this
Section 2.6(b), upon such waiver, any such default shall cease to exist and any
Trust Enforcement Event with respect to the Trust Common Securities arising
therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other default
or Trust Enforcement Event with respect to the Trust Common Securities or
impair any right consequent thereon.
(c) A waiver of Partnership Enforcement Events under the Limited
Partnership Agreement by the Property Trustee at the direction of the Holders
of the Trust Preferred Securities constitutes a waiver of the corresponding
Trust Enforcement Event under this Declaration. The foregoing provisions of
this Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust
Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is
hereby expressly excluded from this Declaration and the Trust Securities, as
permitted by the Trust Indenture Act.
SECTION 2.7 Trust Enforcement Event; Notice.
The Property Trustee shall, within 90 days after the occurrence of a
Trust Enforcement Event, transmit by mail, first class postage prepaid, to the
Holders of the Trust Securities, notices of all defaults with respect to the
Trust Securities actually known to a Responsible Officer of the Property
Trustee, unless such defaults have been cured before the giving of such notice
(the term "defaults" for the purposes of this Section 2.7 being hereby defined
to be defaults as defined in the Trust Guarantees or the Limited Partnership
Agreement, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided that,
except for a default in the payment of principal of (or premium, if any) or
interest on any of the Affiliate Investment Instruments or in the payment of
any sinking fund installment established for the Affiliate Investment
Instruments, the Property Trustee shall be protected in withholding such notice
if and so long as a Responsible Officer of the Property Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Trust Securities.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "Enron Capital Trust I," as such name may be
modified from time to time by the Regular Trustees following written notice to
the Holders of Trust Securities. The Trust's activities may be conducted under
the name of the Trust or any other name deemed advisable by the Regular
Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o Enron Corp.,
1400 Smith Street, Houston, Texas 77002. On ten Business Days written notice
to the Holders of Trust Securities, the Regular Trustees may designate another
principal office.
10
<PAGE> 16
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Securities and to use the proceeds from such sale to acquire the
Partnership Preferred Securities, and (b) except as otherwise limited herein,
to engage in only those other activities necessary, or incidental thereto. The
Trust shall not borrow money, issue debt or reinvest proceeds derived from
investments, pledge any of its assets, or otherwise undertake (or permit to be
undertaken) any activity that would cause the Trust to be classified as an
association or a publicly traded partnership taxable as a corporation for
United States federal income tax purposes.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Property Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the
Trustees acting on behalf of the Trust, no person shall be required to inquire
into the authority of the Trustees to bind the Trust. Persons dealing with the
Trust are entitled to rely conclusively on the power and authority of the
Trustees as set forth in this Declaration.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Partnership
Preferred Securities and the Property Account or as otherwise provided in this
Declaration, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial ownership interest in the assets
of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) To issue and sell the Trust Preferred Securities and the Trust
Common Securities in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Trust Preferred Securities and
no more than one series of Trust Common Securities, and, provided further, that
there shall be no interests in the Trust other than the Trust Securities, and
the issuance of Trust Securities shall be limited to a one-time, simultaneous
issuance of both Trust Preferred Securities and Trust Common Securities on the
Closing Date;
(b) In connection with the issue and sale of the Trust Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the registration
statement on Forms S-1 or S-3 prepared by the Sponsor, including any
amendments thereto, pertaining to the Trust Preferred Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be necessary
in order to qualify or register all or part of the Trust Preferred
Securities in any State in which the Sponsor has determined to qualify
or register such Trust Preferred Securities for sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange, Inc. or any other national
stock exchange or the Nasdaq Stock Market's National Market for
listing upon notice of issuance of any Trust Preferred Securities;
11
<PAGE> 17
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by
the Sponsor, relating to the registration of the Trust Preferred
Securities under Section 12(b) of the Exchange Act; and
(v) execute and enter into an underwriting agreement
providing for the sale of the Trust Preferred Securities and perform
the duties and obligations of the Trust thereunder;
(c) To acquire the Partnership Preferred Securities with the
proceeds of the sale of the Trust Preferred Securities and the Trust Common
Securities; provided, however, that the Regular Trustees shall cause legal
title to the Partnership Preferred Securities to be held of record in the name
of the Property Trustee for the benefit of the Holders of the Trust Preferred
Securities and the Holders of Trust Common Securities;
(d) To give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Trust Special Event; provided that the Regular
Trustees shall consult with the Sponsor and the Property Trustee before taking
or refraining from taking any Ministerial Action in relation to a Trust Special
Event;
(e) To establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Trust Preferred Securities and Holders of Trust
Common Securities as to such actions and applicable record dates;
(f) To give prompt written notice to the Holders of the Trust
Securities of any notice received from the Partnership of the General Partner's
election not to make a current, quarterly distribution on the Partnership
Preferred Securities under the Limited Partnership Agreement;
(g) To take all actions and perform such duties as may be required
of the Regular Trustees pursuant to the terms of the Trust Securities;
(h) To bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(f), the Property Trustee
has the exclusive power to bring such Legal Action;
(i) To employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(j) To cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(k) To give the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Property Trustee, which certificate may be executed
by any Regular Trustee;
(l) To incur expenses that are necessary or incidental to carry
out any of the purposes of the Trust;
(m) To act as, or appoint another Person to act as, registrar and
transfer agent for the Trust Securities;
(n) To execute all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(o) To take all action that may be necessary or appropriate for
the preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Trust
Preferred Securities or to enable the Trust to effect the purposes for which
the Trust was created;
12
<PAGE> 18
(p) To take any action, or to take no action, not inconsistent
with this Declaration or with applicable law, that the Regular Trustees
determine in their discretion to be necessary or desirable in carrying out the
activities of the Trust as set out in this Section 3.6, including, but not
limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the 1940 Act; and
(ii) taking no action which would be reasonably likely to
cause the Trust to be classifed as an association or a publicly traded
partnership taxable as a corporation for United States federal income
tax purposes;
provided that such action does not adversely affect the interests of Holders;
and
(q) To take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Regular Trustees, on behalf
of the Trust.
The Regular Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section
3.6 shall be reimbursed by the Partnership pursuant to Section 9.1 of the
Limited Partnership Agreement.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
The Trust shall not, and the Trustees (including the Property Trustee)
shall cause the Trust not to, engage in any activity other than as required or
authorized by this Declaration. In particular, the Trust shall not and the
Trustees (including the Property Trustee) shall cause the Trust not to:
(a) invest any proceeds received by the Trust from holding the
Partnership Preferred Securities, but shall distribute all such proceeds to
Holders of Trust Securities pursuant to the terms of this Declaration and of
the Trust Securities;
(b) acquire any assets other than as expressly provided herein;
(c) possess Trust property for other than a Trust purpose;
(d) make any loans or incur any indebtedness or acquire any
securities other than the Partnership Preferred Securities;
(e) possess any power or otherwise act in such a way as to vary
the Trust assets or the terms of the Trust Securities in any way whatsoever;
(f) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the Trust
Securities;
(g) other than as set forth herein, (A) cause the Special
Representative to direct the time, method and place of conducting any
proceeding for any remedy available to the Special Representative or exercising
any trust or power conferred upon the Special Representative with respect to
the Partnership Preferred Securities, the
13
<PAGE> 19
Affiliate Investment Instruments, and the Investment Guarantees, (B) cause the
Special Representative to waive any past default that is waivable under the
Limited Partnership Agreement, the Affiliate Investment Instruments or the
Investment Guarantees, (C) cause the Special Representative to exercise any
right to rescind or annul any declaration that the principal of, or other
amounts in respect of, any Affiliate Investment Instruments is due and payable
or (D) consent to any amendment, modification or termination of the Limited
Partnership Agreement or the Partnership Preferred Securities where such
consent shall be required; and
(h) other than in connection with the liquidation of the Trust
pursuant to a Trust Special Event or upon redemption of all the Trust
Securities, file a certificate of cancellation of the Trust.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Partnership Preferred Securities shall
be owned by and held of record in the name of the Property Trustee in trust for
the benefit of the Holders of the Trust Securities. The right, title and
interest of the Property Trustee to the Partnership Preferred Securities shall
vest automatically in each Person who may hereafter be appointed as Property
Trustee in accordance with Section 6.7. Such vesting and cessation of title
shall be effective whether or not conveyancing documents with regard to the
Partnership Preferred Securities have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Partnership Preferred Securities to the Regular Trustees or to
the Delaware Trustee (if the Property Trustee does not also act as Delaware
Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Property Account") in the name of and
under the exclusive control of the Property Trustee on behalf of the
Holders of the Trust Securities and, upon the receipt of payments of
funds made in respect of the Partnership Preferred Securities held by
the Property Trustee, deposit such funds into the Property Account and
make payments to the Holders of the Trust Preferred Securities and
Holders of the Trust Common Securities from the Property Account in
accordance with Section 7.1. Funds in the Property Account shall be
held uninvested until disbursed in accordance with this Declaration.
The Property Account shall be an account that is maintained with a
banking institution authorized to exercise corporate trust powers and
having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Trust
Preferred Securities and the Trust Common Securities to the extent the
Partnership Preferred Securities are redeemed; and
(iii) upon written notice of distribution issued by the
Regular Trustees in accordance with the terms of the Trust Securities,
engage in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the Partnership Preferred
Securities to Holders of Trust Securities upon the occurrence of a
Trust Special Event.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of the Trust Securities.
(e) The Property Trustee shall take any Legal Action which arises
out of or in connection with (i) a Trust Enforcement Event of which a
Responsible Officer of the Property Trustee has actual knowledge or (ii) the
Property Trustee's duties and obligations under this Declaration or the Trust
Indenture Act.
14
<PAGE> 20
(f) The Property Trustee shall have the legal power to exercise
all of the rights, powers and privileges of a Holder of Partnership Preferred
Securities and, if a Trust Enforcement Event occurs and is continuing, the
Property Trustee shall, for the benefit of Holders of the Trust Securities,
enforce its rights as Holder of the Partnership Preferred Securities subject to
the rights of the Holders pursuant to the terms of such Trust Securities.
(g) The Property Trustee may authorize one or more Persons (each,
a "Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Trust Securities and any
such Paying Agent shall comply with Section 317(b) of the Trust Indenture Act.
Any Paying Agent may be removed by the Property Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any time
by the Property Trustee.
(h) The Property Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of Trust
Securities pursuant to the terms of the Trust Securities; or
(ii) a Successor Property Trustee has been appointed and
has accepted that appointment in accordance with Section 6.7.
(i) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.6.
The Property Trustee must exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Property Trustee shall not take any
action that is inconsistent with the purposes and functions of the Trust set
out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any Trust
Enforcement Event and after the curing or waiver of all Trust Enforcement
Events that may have occurred, shall undertake to perform only such duties as
are specifically set forth in this Declaration and no implied covenants shall
be read into this Declaration against the Property Trustee. In case a Trust
Enforcement Event has occurred (that has not been cured or waived pursuant to
Section 2.6) of which a Responsible Officer of the Property Trustee has actual
knowledge, the Property Trustee shall exercise such of the rights and powers
vested in it by this Declaration, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event
and after the curing or waiving of all such Trust Enforcement Events
that may have occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this Declaration and the Property Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Declaration,
and no implied covenants or obligations shall be read into
this Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part of
the Property Trustee, the Property Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or
opinions furnished to the Property Trustee and conforming to
the requirements of this Declaration; but in the case of any
such certificates
15
<PAGE> 21
or opinions that by any provision hereof are specifically
required to be furnished to the Property Trustee, the Property
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Declaration;
(ii) the Property Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Property Trustee, unless it shall be proved that the Property Trustee
was negligent in ascertaining the pertinent facts;
(iii) subject to the requirement of the Property Trustee
receiving a tax opinion as set forth in Section 8.4(d) or 8.5(c), as
the case may be, the Property Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Declaration or indemnity reasonably satisfactory to the Property
Trustee against such risk or liability is not reasonably assured to
it;
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Partnership
Preferred Securities and the Property Account shall be to deal with
such property in a similar manner as the Property Trustee deals with
similar property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee under this
Declaration and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability
for or with respect to the value, genuineness, existence or
sufficiency of the Partnership Preferred Securities or the payment of
any taxes or assessments levied thereon or in connection therewith;
(vii) money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Property Account maintained by the Property Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise required by law;
and
(viii) the Property Trustee shall not be responsible
for monitoring the compliance by the Regular Trustees or the Sponsor
with their respective duties under this Declaration, nor shall the
Property Trustee be liable for any default or misconduct of the
Regular Trustees or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall
be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees acting on behalf of the Trust contemplated by this
Declaration shall be sufficiently evidenced by an Officers'
Certificate;
16
<PAGE> 22
(iii) whenever in the administration of this Declaration,
the Property Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the
Sponsor or the Regular Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or registration thereof;
(v) the Property Trustee may, at the expense of the
Sponsor, consult with counsel or other experts and the advice or
opinion of such counsel and experts with respect to legal matters or
advice within the scope of such experts' area of expertise 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; such counsel may be counsel to
the Sponsor or any of its Affiliates, and may include any of its
employees. The Property Trustee shall have the right at any time to
seek instructions concerning the administration of this Declaration
from any court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any Holder, unless (a) such Holder
shall have provided to the Property Trustee security and indemnity,
reasonably satisfactory to the Property Trustee, against the fees,
charges, costs, expenses (including attorneys' fees and expenses and
the expenses of the Property Trustee's agents, nominees or custodians)
and liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be
requested by the Property Trustee and (b) the Property Trustee has
obtained the legal opinions, if any, required by Section 8.4(d) or
8.5(c), as the case may be, of this Agreement; provided, that, nothing
contained in this Section 3.10(a)(vi) shall be taken to relieve the
Property Trustee, upon the occurrence of a Trust Enforcement Event, of
its obligation to exercise the rights and powers vested in it by this
Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, custodians, nominees or attorneys and the Property
Trustee shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by it
hereunder;
(ix) any action taken by the Property Trustee or its
agents hereunder shall bind the Trust and the Holders of the Trust
Securities, and the signature of the Property Trustee or its agents
alone shall be sufficient and effective to perform any such action and
no third party shall be required to inquire as to the authority of the
Property Trustee to so act or as to its compliance with any of the
terms and provisions of this Declaration, both of which shall be
conclusively evidenced by the Property Trustee's or its agent's taking
such action;
(x) whenever in the administration of this Declaration
the Property Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Property Trustee (i) may request instructions
from the Holders of the Trust Securities which instructions may only
be given by the Holders of the same proportion in liquidation amount
of the Trust Securities as would be entitled to direct the Property
Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy
or right or taking such
17
<PAGE> 23
other action until such instructions are received, and (iii) shall be
protected in conclusively relying on or acting in accordance with such
instructions; provided, however, that the Property Trustee shall not
be required to take any action unless it shall have obtained such
legal opinions, if any, required by Sections 8.4(d) or 8.5(c), as the
case may be, of this Agreement; and
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration.
In the event that the Trustee is also acting as authenticating
agent, Paying Agent, transfer agent and security registrar, the rights
and protections afforded to the Trustee pursuant to this Article III
shall also be afforded to such authenticating agent, Paying Agent,
transfer agent and security registrar.
(b) No provision of this Declaration shall be deemed to
impose any duty or obligation on the Property Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on
it, in any jurisdiction in which it shall be illegal, or in which the Property
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any provision of this Declaration other than Section
6.2, the Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Regular Trustees or the Property Trustee described in this Declaration. Except
as set forth in Section 6.2, the Delaware Trustee shall be a Trustee for the
sole and limited purpose of fulfilling the requirements of Section 3807 of the
Business Trust Act. In no event shall the Property Trustee or the Delaware
Trustee be liable for any act or omission of any of the Regular Trustees
hereunder.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act, any Regular Trustee is authorized
to execute on behalf of the Trust any documents that the Regular Trustees have
the power and authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 3.13 Not Responsible for Recitals or Issuance of Trust Securities.
The recitals contained in this Declaration and the Trust Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration or the Trust Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of Article
VIII hereof, shall have perpetual existence.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described in Section 3.15(b) and (c).
18
<PAGE> 24
(b) The Trust may, with the consent of the Regular Trustees or, if
there are more than two, a majority of the Regular Trustees and without the
consent of the Holders of the Trust Securities, the Delaware Trustee or the
Property Trustee, consolidate, amalgamate, merge with or into, or be replaced
by a trust organized as such under the laws of any State of the United States;
provided that:
(i) if the Trust is not the survivor, such successor
entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of
the Trust under the Trust Securities; or
(B) substitutes for the Trust Preferred
Securities other securities having substantially the same
terms as the Trust Preferred Securities (the "Successor Trust
Securities") so long as the Successor Trust Securities rank
the same as the Trust Preferred Securities rank with respect
to Distributions, assets and payments upon liquidation,
redemption and otherwise;
(ii) the Company expressly acknowledges a trustee of the
Successor Entity that possesses the same powers and duties as the
Property Trustee as the Holder of the Partnership Preferred
Securities;
(iii) the Trust Preferred Securities or any Successor Trust
Securities are listed, or any Successor Trust Securities will be
listed upon notification of issuance, on any national securities
exchange or with another organization on which the Trust Preferred
Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or
replacement does not cause the Trust Preferred Securities (including
any Successor Trust Securities) to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and
privileges of the Holders of the Trust Preferred Securities (including
any Successor Trust Securities) in any material respect;
(vi) such Successor Entity has a purpose identical to that
of the Trust;
(vii) the Company guarantees the obligations of such
Successor Entity under the Successor Trust Securities at least to the
extent provided by the Trust Guarantees; and
(viii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally
recognized independent counsel (which may be counsel to the Sponsor)
to the Trust experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation or
replacement will not adversely affect the rights, preferences
and privileges of the Holders of the Trust Preferred
Securities (including any Successor Trust Securities) in any
material respect (other than with respect to any dilution of
the Holders' interest in the new entity);
(B) following such merger, consolidation,
amalgamation or replacement, neither the Trust nor the
Successor Entity will be required to register as an Investment
Company under the 1940 Act;
(C) following such merger, consolidation,
amalgamation or replacement, the Trust (or the Successor
Entity) will not be classified as an association or a publicly
traded partnership taxable as a corporation for United States
federal income tax purposes; and
19
<PAGE> 25
(D) following such merger, consolidation,
amalgamation or replacement, the Partnership will not be
classified as an association or a publicly traded partnership
taxable as a corporation for United States federal income tax
purposes.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation amount of the Trust
Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger or replacement would cause the Trust or Successor Entity
to be classified as an association or a publicly traded partnership taxable as
a corporation for United States federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Responsibilities of the Sponsor.
In connection with the issue and sale of the Trust Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) To prepare for filing by the Trust with the Commission a
registration statement on Form S-1 or S-3 in relation to the Trust Preferred
Securities, including any amendments thereto;
(b) To determine the states in which to take appropriate action to
qualify or register for sale all or part of the Trust Preferred Securities and
to do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for execution
and filing any documents to be executed and filed by the Trust, as the Sponsor
deems necessary or advisable in order to comply with the applicable laws of any
such states;
(c) To prepare for filing by the Trust an application to the New
York Stock Exchange or any other national stock exchange or the Nasdaq National
Market for listing upon notice of issuance of any Trust Preferred Securities;
(d) To prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the Trust
Preferred Securities under Section 12(b) of the Exchange Act, including any
amendments thereto; and
(e) To negotiate the terms of an underwriting agreement and any
pricing agreement providing for the sale of the Trust Preferred Securities.
SECTION 4.2 Indemnification and Expenses of the Trustee
The Partnership agrees, and to the extent the Partnership fails to do
so, the Sponsor agrees to indemnify the Property Trustee and the Delaware
Trustee and their respective officers, directors, employees and agents for, and
to hold each of them harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Property Trustee or the
Delaware Trustee, as the case may be, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending either of them against any claim or liability
in connection with the exercise or performance of any of their respective
powers or duties hereunder; the provisions of this Section 4.2 shall survive
the resignation or removal of the Delaware Trustee or the Property Trustee or
the termination of this Declaration.
20
<PAGE> 26
ARTICLE V
TRUST COMMON SECURITIES HOLDER
SECTION 5.1 Company's Purchase of Trust Common Securities.
On the Closing Date the Company will purchase all of the Trust Common
Securities issued by the Trust, for an amount at least equal to 3% of the
capital of the Trust, at the same time as the Trust Preferred Securities are
sold.
SECTION 5.2 Covenants of the Trust Common Securities Holder.
For so long as the Trust Preferred Securities remain outstanding, the
Company will covenant (i) to maintain directly 100 percent ownership of the
Trust Common Securities, (ii) to cause the Trust to remain a statutory business
trust and not to voluntarily dissolve, wind up, liquidate, or be terminated,
except as permitted by this Declaration, (iii) to use its commercially
reasonable efforts to ensure that the Trust will not be an investment company
for purposes of the 1940 Act, and (iv) to take no action which would be
reasonably likely to cause the Trust to be classified as an association or a
publicly traded partnership taxable as a corporation for United States federal
income tax purposes.
ARTICLE VI
TRUSTEES
SECTION 6.1 Number of Trustees.
The number of Trustees initially shall be five (5), and:
(a) At any time before the issuance of any Trust Securities, the
Sponsor may, by written instrument, increase or decrease the number of
Trustees; and
(b) After the issuance of any Trust Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a Majority in
liquidation amount of the Trust Common Securities voting as a class at a
meeting of the Holders of the Trust Common Securities; provided, however, that
the number of Trustees shall in no event be less than three (3); provided
further that (1) if required by the Business Trust Act, one Trustee is the
Delaware Trustee; (2) there shall be at least one Trustee who is an employee or
officer of, or is affiliated with the Company (each, a "Regular Trustee"); and
(3) one Trustee shall be the Property Trustee for so long as this Declaration
is required to qualify as an indenture under the Trust Indenture Act, and such
Property Trustee may also serve as Delaware Trustee if it meets the applicable
requirements.
SECTION 6.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) A natural person who is a resident of the State of Delaware; or
(b) If not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the
requirements of applicable law,
provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee may also be the Delaware Trustee (in which case
Section 3.11 shall have no application).
21
<PAGE> 27
SECTION 6.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by federal, state, territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then for the
purposes of this Section 6.3(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Property Trustee shall cease to be eligible
to so act under Section 6.3(a), the Property Trustee shall immediately resign
in the manner and with the effect set forth in Section 6.7(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Trust Common Securities (as if it were
the obligor referred to in Section 310(b) of the Trust Indenture Act) shall in
all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
(d) The Trust Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be:
The Chase Manhattan Bank
SECTION 6.4 Qualifications of Regular Trustees and Delaware Trustee
Generally.
Each Regular Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 6.5 Regular Trustees.
The initial Regular Trustees shall be:
Keith A. Crane
Lea W. Fastow
Phillip M. Sisneros
(a) Except as expressly set forth in this Declaration and except
if a meeting of the Regular Trustees is called with respect to any matter over
which the Regular Trustees have power to act, any power of the Regular Trustees
may be exercised by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act or applicable law, any
Regular Trustee is authorized to execute on behalf of the Trust any
22
<PAGE> 28
documents which the Regular Trustees have the power and authority to cause the
Trust to execute pursuant to Section 3.6.
SECTION 6.6 Delaware Trustee.
The initial Delaware Trustee shall be:
Chase Manhattan Bank Delaware
SECTION 6.7 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 6.7(b), Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of any Trust Securities, by
written instrument executed by the Sponsor; and
(ii) after the issuance of any Trust Securities, by vote
of the Holders of a Majority in liquidation amount of the Trust Common
Securities voting as a class at a meeting of the Holders of the Trust
Common Securities.
(b) (i) the Trustee that acts as Property Trustee shall not
be removed in accordance with Section 6.7(a) until a successor Trustee
possessing the qualifications to act as Property Trustee under Section
6.3 (a "Successor Property Trustee") has been appointed and has
accepted such appointment by written instrument executed by such
Successor Property Trustee and delivered to the Regular Trustees and
the Sponsor;
(ii) the Trustee that acts as Delaware Trustee shall not
be removed in accordance with Section 6.7(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under
Sections 6.2 and 6.4 (a "Successor Delaware Trustee") has been
appointed and has accepted such appointment by written instrument
executed by such Successor Delaware Trustee and delivered to the
Regular Trustees and the Sponsor;
(iii) no such removal of the Property Trustee or the
Delaware Trustee shall be effective until all of the fees, charges,
and expenses such entity have been paid.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the Sponsor and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that:
(i) no such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered to
the Trust, the Sponsor and the resigning Property Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to
the Holders of the Trust Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
23
<PAGE> 29
executed by such Successor Delaware Trustee and delivered to the
Trust, the Sponsor and the resigning Delaware Trustee; and
(iii) no such resignation of the Property Trustee or the
Delaware Trustee shall be effective until all of the fees, charges,
and expenses such entity have been paid.
(d) The Holders of the Trust Common Securities shall use their
best efforts to promptly appoint a Successor Delaware Trustee or Successor
Property Trustee, as the case may be, if the Property Trustee or the Delaware
Trustee delivers an instrument of resignation in accordance with this Section
6.7.
(e) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
6.7 within 60 days after delivery to the Sponsor and the Trust of an instrument
of resignation, the resigning Property Trustee or Delaware Trustee, as
applicable, may petition any court of competent jurisdiction for appointment of
a Successor Property Trustee or Successor Delaware Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Property Trustee or Successor Delaware Trustee,
as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for
the acts or omissions to act of any Successor Property Trustee or successor
Delaware Trustee, as the case may be.
SECTION 6.8 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 6.1, or if the number of Trustees
is increased pursuant to Section 6.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 6.7.
SECTION 6.9 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee
shall not operate to annul the Trust. Whenever a vacancy in the number of
Regular Trustees shall occur, until such vacancy is filled by the appointment
of a Regular Trustee in accordance with Section 6.7, the Regular Trustees in
office, regardless of their number, shall have all the powers granted to the
Regular Trustees and shall discharge all the duties imposed upon the Regular
Trustees by this Declaration.
SECTION 6.10 Meetings.
If there is more than one Regular Trustee, meetings of the Regular
Trustees shall be held from time to time upon the call of any Regular Trustee.
Regular meetings of the Regular Trustees may be held at a time and place fixed
by resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than
48 hours before such meeting. Notice of any telephonic meetings of the Regular
Trustees or any committee thereof shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 24 hours before a meeting. Notices shall contain a
brief statement of the time, place and anticipated purposes of the meeting.
The presence (whether in person or by telephone) of a Regular Trustee at a
meeting shall constitute a waiver of notice of such meeting except where a
Regular Trustee attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this Declaration,
any action of the Regular Trustees may be taken at a meeting by vote of a
majority of the Regular Trustees present (whether in person or by telephone)
and eligible to vote with respect to such matter, provided that a Quorum is
present, or without a meeting
24
<PAGE> 30
by the unanimous written consent of the Regular Trustees. Notwithstanding the
foregoing, any and all actions of the Regular Trustees may be taken by the
unanimous written consent of all Regular Trustees.
SECTION 6.11 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Property Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Property Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Property Trustee or the
Delaware Trustee, as the case may be, shall be the successor of the Property
Trustee or the Delaware Trustee, as the case may be, hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
ARTICLE VII
DISTRIBUTIONS
SECTION 7.1 Distributions.
(a) Holders of Trust Securities shall be entitled to receive
cumulative cash distributions at the rate per annum of 8.30% of the stated
liquidation amount of $25 per Trust Security, calculated on the basis of a
360-day year consisting of twelve 30-day months. For any period shorter than a
full 90-day quarter, distributions will be computed on the basis of the actual
number of days elapsed in such 90-day quarter. Distributions shall be made on
the Trust Preferred Securities and the Trust Common Securities on a Pro Rata
basis. Distributions on the Trust Securities shall, from the date of original
issue, accrue and be cumulative and shall be payable quarterly only to the
extent that the Trust has funds available for the payment of such Distributions
in the Property Account. Distributions not paid on the scheduled payment date
will accumulate and compound quarterly at the rate of 8.30% per annum
("Compounded Distributions"). "Distributions" shall mean ordinary cumulative
distributions in respect of each Fiscal Period together with any Compounded
Distributions. If and to the extent that the Partnership makes a distribution
on the Partnership Preferred Securities held by the Property Trustee or the
Company makes a payment under the Partnership Guarantee (the amount of any such
partnership distribution, including any compounded partnership distributions,
or guarantee payment being a "Payment Amount"), the Trust shall and the
Property Trustee is directed, to the extent funds are available for that
purpose pursuant to Section 7.1(c), to make a Pro Rata Distribution of the
Payment Amount to Holders.
(b) Distributions on the Trust Securities will be cumulative, will
accrue from the date of initial issuance and will be payable quarterly in
arrears on each March 31, June 30, September 30 and December 31, commencing
December 31, 1996, when, as and if available for payment, by the Property
Trustee, except as otherwise described below. If Distributions are not paid
when scheduled, the accrued Distributions shall be paid to the Holders of
record of Trust Securities as they appear on the books and records of the Trust
on the record date as determined under Section 7.1(d) below.
25
<PAGE> 31
(c) Amounts available to the Trust for distribution to the Holders
of the Trust Securities will be limited to payments received by the Trust from
the Partnership on the Partnership Preferred Securities or from the Company on
the Partnership Guarantees paid by the Company to the Trust. If the Property
Trustee, as the holder of the Partnership Preferred Securities for the benefit
of the Holders of the Trust Securities, receives written notice of any
determination by the Partnership not to pay distributions on such Partnership
Preferred Securities, the Property Trustee shall give notice of such
determination to the Holders.
(d) Distributions on the Trust Securities will be payable to the
Holders thereof as they appear on the books and records of the Trust on the
relevant record dates, which relevant record dates, as long as the Trust
Preferred Securities remain in book-entry only form, will be one Business Day
prior to the relevant payment dates. Such distributions will be paid through
the Property Trustee who will hold amounts received in respect of the
Partnership Preferred Securities in the Property Account for the benefit of the
Holders of the Trust Securities. In the event that the Trust Securities do not
remain in book-entry only form, the relevant record dates shall be the 15th day
of the month of the relevant payment dates. In the event that any date on
which distributions are payable on the Trust Securities is not a Business Day,
payment of the distribution payable on such date will be made on the next
succeeding day which is a Business Day (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 (without any reduction in interest or other payments in
respect of such early payment).
ARTICLE VIII
ISSUANCE OF TRUST SECURITIES
SECTION 8.1 Designation and General Provisions Regarding Trust Securities.
(a) The Regular Trustees shall on behalf of the Trust issue one
class of preferred securities representing undivided beneficial ownership
interests in the assets of the Trust (the "Trust Preferred Securities") and one
class of common securities representing undivided beneficial ownership
interests in the assets of the Trust (the "Trust Common Securities") as
follows:
(i) Trust Preferred Securities. 8,000,000 Trust
Preferred Securities of the Trust with an aggregate liquidation amount
with respect to the assets of the Trust of two hundred million dollars
($200,000,000) and a liquidation amount with respect to the assets of
the Trust of $25 per preferred security, are hereby designated for the
purpose of identification only as 8.30% Trust Originated Preferred
SecuritiesSM (the "Trust Preferred Securities"). The Trust Preferred
Security Certificates evidencing the Trust Preferred Securities shall
be substantially in the form of Exhibit A-1 to the Declaration, with
such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or to conform to the
rules of any stock exchange on which the Trust Preferred Securities
are listed.
(ii) Trust Common Securities. 247,440 Trust Common
Securities of the Trust with an aggregate liquidation amount with
respect to the assets of the Trust of six million one hundred eighty
six thousand dollars ($6,186,000) and a liquidation amount with
respect to the assets of the Trust of $25 per common security, are
hereby designated for the purposes of identification only as 8.30%
Trust Common Securities (the "Trust Common Securities" and, together
with the Trust Preferred Securities, the "Trust Securities"). The
Trust Common Security Certificates evidencing the Trust Common
Securities shall be substantially in the form of Exhibit A-2 to the
Declaration, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice.
(b) Except as provided in Section 9.2(b) of this Declaration, the
Trust Preferred Securities rank pari passu and payment thereon shall be made
Pro Rata with the Trust Common Securities. The Trust shall issue no securities
or other interests in the assets of the Trust other than the Trust Preferred
Securities and the Trust Common Securities.
26
<PAGE> 32
(c) Any Regular Trustee shall sign the Trust Securities for the
Trust by manual or facsimile signature. In case any Regular Trustee of the
Trust who shall have signed any of the Trust Securities shall cease to be a
Regular Trustee before the Certificates so signed shall be delivered by the
Trust, such Certificates nevertheless may be delivered as though the person who
signed such Certificates had not ceased to be such Regular Trustee; and any
Certificate may be signed on behalf of the Trust by such persons who, at the
actual date of execution of such Trust Security, shall be the Regular Trustees
of the Trust, although at the date of the execution and delivery of the
Declaration any such person was not such a Regular Trustee. Certificates shall
be printed, lithographed or engraved or may be produced in any other manner as
is reasonably acceptable to the Regular Trustees, as evidenced by their
execution thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to comply with any law or
with any rule or regulation of any stock exchange on which Trust Securities may
be listed, or to conform to usage.
A Trust Security shall not be valid until authenticated by the manual
signature of an authorized officer of the Property Trustee. Such signature
shall be conclusive evidence that the Trust Security has been authenticated
under this Declaration.
Upon a written order of the Trust, signed by at least one Regular
Trustee, directing the Property Trustee to authenticate and deliver Trust
Securities, the Property Trustee shall authenticate and deliver the Trust
Securities for original issue. The aggregate number of Trust Securities
outstanding at any time shall not exceed the number set forth in the Terms of
the Trust Securities.
The Property Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Trust Securities. An authenticating agent may
authenticate Trust Preferred Securities whenever the Property Trustee may do
so. Each reference in this Declaration to authentication by the Property
Trustee includes authentication by such agent. An authenticating agent has the
same rights as the Property Trustee to deal with the Sponsor or an Affiliate of
the Sponsor.
(d) The consideration received by the Trust for the issuance of
the Trust Securities shall constitute a contribution to the capital of the
Trust and shall not constitute a loan to the Trust.
(e) Upon issuance of the Trust Securities as provided in this
Declaration, the Trust Securities so issued shall be deemed to be validly
issued, fully paid and non-assessable, subject to Section 11.1 with respect to
the Trust Common Securities.
(f) Every Person, by virtue of having become a Holder or a Trust
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration.
SECTION 8.2 Redemption of Trust Securities.
(a) Upon a purchase of the Partnership Preferred Securities by the
Partnership upon redemption or otherwise, the proceeds from such purchase shall
be simultaneously applied Pro Rata to redeem Trust Securities having an
aggregate liquidation amount equal to the Partnership Preferred Securities so
purchased or redeemed for an amount equal to $25 per Trust Security plus an
amount equal to accrued and unpaid Distributions, including any Compounded
Distributions thereon through the date of the redemption or such lesser amount
as shall be received by the Trust in respect of the Partnership Preferred
Securities so purchased or redeemed as calculated by the Regular Trustees (the
"Redemption Price"). Holders will be given not less than 30 nor more than 60
days notice of such redemption.
(b) If fewer than all the outstanding Trust Securities are to be
so redeemed, the Trust Common Securities and the Trust Preferred Securities
will be redeemed Pro Rata and the Trust Preferred Securities to be redeemed
will be redeemed as described in Section 8.3 below.
27
<PAGE> 33
(c) If, at any time, a Trust Special Event shall occur and be
continuing, the Regular Trustees shall, unless the Partnership Preferred
Securities are redeemed in the limited circumstances described below, within 90
days following the occurrence of such Trust Special Event elect to either (i)
dissolve the Trust upon not less than 30 nor more than 60 days' notice with the
result that, after satisfaction of creditors, if any, of the Trust, Partnership
Preferred Securities with an aggregate principal amount equal to the aggregate
stated liquidation amount of, with a distribution rate identical to the
distribution rate of, and accrued and unpaid distributions equal to accrued and
unpaid distributions on, and having the same record date for payment as, the
Trust Preferred Securities and the Trust Common Securities outstanding at such
time would be distributed on a Pro Rata basis to the Holders of the Trust
Preferred Securities and the Trust Common Securities in liquidation of such
Holders' interests in the Trust; provided, however, that if at the time there
is available to the Trust the opportunity to eliminate, within such 90-day
period, the Trust Special Event by taking some ministerial action, such as
filing a form or making an election, or pursuing some other similar reasonable
measure which in the sole judgment of the Sponsor has or will cause no adverse
effect on the Trust, the Partnership, the Sponsor or the Holders of the Trust
Securities and will involve no material cost, the Trust will pursue such
measure in lieu of dissolution or (ii) cause the Trust Preferred Securities to
remain outstanding, provided that in the case of this clause (ii), the Sponsor
shall pay any and all expenses incurred by or payable by the Trust attributable
to the Trust Special Event. Furthermore, if in the case of the occurrence of a
Trust Tax Event, the Regular Trustees have received a Trust Redemption Tax
Opinion, then the General Partner shall have the right, within 90 days
following the occurrence of such Trust Tax Event, to elect to cause the
Partnership to redeem the Partnership Preferred Securities in whole (but not in
part) for cash upon not less than 30 nor more than 60 days' notice and promptly
following such redemption, the Trust Securities will be redeemed by the Trust
at the Redemption Price.
(d) If the Partnership Preferred Securities are distributed to the
Holders of the Trust Preferred Securities, the Sponsor will use its best
efforts to cause the Partnership Preferred Securities to be listed on the New
York Stock Exchange or on such other national securities exchange or similar
organization as the Trust Preferred Securities are then listed or quoted.
(e) On the date fixed for any distribution of Partnership
Preferred Securities, upon dissolution of the Trust, (i) the Trust Preferred
Securities and the Trust Common Securities will no longer be deemed to be
outstanding and (ii) certificates representing Trust Securities will be deemed
to represent the Partnership Preferred Securities having an aggregate principal
amount equal to the stated liquidation amount of, and bearing accrued and
unpaid distributions equal to accrued and unpaid distributions on, such Trust
Securities until such certificates are presented to the Sponsor or its agent
for transfer or reissuance.
SECTION 8.3 Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of
Partnership Preferred Securities in exchange for, the Trust Securities (a
"Redemption/Distribution Notice") will be given by the Trust by mail to each
Holder of Trust Securities to be redeemed or exchanged not fewer than 30 nor
more than 60 days before the date fixed for redemption or exchange thereof
which, in the case of a redemption, will be the date fixed for redemption of
the Partnership Preferred Securities. For purposes of the calculation of the
date of redemption or exchange and the dates on which notices are given
pursuant to this Section 8.3, a Redemption/ Distribution Notice shall be deemed
to be given on the day such notice is first mailed by first-class mail, postage
prepaid, to Holders of Trust Securities. Each Redemption/Distribution Notice
shall be addressed to the Holders of Trust Securities at the address of each
such Holder appearing in the books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of either thereof with respect
to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(b) In the event that fewer than all the outstanding Trust
Securities are to be redeemed, the Trust Securities to be redeemed shall be
redeemed Pro Rata from each Holder of Trust Securities, provided that, in
respect of Trust Preferred Securities registered in the name of and held of
record by DTC or its nominee (or any successor Clearing Agency or its nominee)
or any nominee, the distribution of the proceeds of such redemption
28
<PAGE> 34
will be made to each Clearing Agency Participant (or Person on whose behalf
such nominee holds such securities) in accordance with the procedures applied
by such agency or nominee.
(c) If Trust Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the
Partnership Preferred Securities are redeemed as set out in this Section 8.3
(which notice will be irrevocable), then (A) while the Trust Preferred
Securities are in book-entry only form, by 12:00 noon, New York City time, on
the redemption date, the Property Trustee will deposit irrevocably with the DTC
or its nominee (or successor Clearing Agency or its nominee) funds sufficient
to pay the applicable Redemption Price with respect to the Trust Preferred
Securities and will give the DTC irrevocable instructions and authority to pay
the Redemption Price to the Holders of the Trust Preferred Securities, and (B)
with respect to Trust Preferred Securities issued in definitive form and Trust
Common Securities, the Property Trustee will pay the relevant Redemption Price
to the Holders of such Trust Securities by check mailed to the address of the
relevant Holder appearing on the books and records of the Trust on the
redemption date. If a Redemption/Distribution Notice shall have been given and
funds deposited as required, if applicable, then immediately prior to the close
of business on the date of such deposit, or on the redemption date, as
applicable, distributions will cease to accrue on the Trust Securities so
called for redemption and all rights of Holders of such Trust Securities will
cease, except the right of the Holders of such Trust Securities to receive the
Redemption Price, but without interest on such Redemption Price. If any date
fixed for redemption of Trust Securities is not a Business Day, then payment of
the Redemption Price 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 falls in the next
calendar year, such payment will be made on the immediately preceding Business
Day (without any reduction in interest or other payments in respect of such
early payment). If payment of the Redemption Price in respect of any Trust
Securities is improperly withheld or refused and not paid either by the
Property Trustee or by the Sponsor as guarantor pursuant to the relevant Trust
Guarantee, Distributions on such Trust Securities will continue to accrue at
the then applicable rate from the original redemption date to the actual date
of payment, in which case the actual payment date will be considered the date
fixed for redemption for purposes of calculating the Redemption Price. For
these purposes, the applicable Redemption Price shall not include Distributions
which are being paid to Holders who were Holders on a relevant record date.
Upon satisfaction of the foregoing conditions, then immediately prior to the
close of business on the date of such deposit or payment, all rights of Holders
of such Trust Preferred Securities so called for redemption will cease, except
the right of the Holders to receive the Redemption Price, but without interest
on such Redemption Price, and from and after the date fixed for redemption,
such Trust Preferred Securities will not accrue distributions or bear interest.
Neither the Regular Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Trust Securities that
have been called for redemption.
(d) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), the Company or its
subsidiaries may at any time and from time to time purchase outstanding Trust
Preferred Securities by tender, in the open market or by private agreement.
SECTION 8.4 Voting Rights of Trust Preferred Securities.
(a) Except as provided under Sections 2.6, 6.1(b) and this
Article VIII and as otherwise required by the Business Trust Act, the Trust
Indenture Act and other applicable law, the Holders of the Trust Preferred
Securities will have no voting rights.
(b) Subject to the requirement of the Property Trustee obtaining a
tax opinion in certain circumstances set forth in Section 8.4(d) below, the
Holders of a Majority in liquidation amount of the Trust Preferred Securities
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or direct the
exercise of any trust or power conferred upon the Property Trustee under the
Declaration, including the right to direct the Property Trustee, as Holder of
the Partnership Preferred Securities, to (i) exercise the remedies available to
it under the Limited Partnership Agreement as a Holder of the Partnership
Preferred Securities, including the right to direct the Special Representative
of the Partnership as elected by the
29
<PAGE> 35
Holders of the Partnership Preferred Securities in accordance with the Limited
Partnership Agreement (A) to enforce the Partnership's creditors rights and
other rights with respect to the Affiliate Investment Instruments and any
Investment Guarantees, (B) to enforce the rights of the Holders of the
Partnership Preferred Securities under the Partnership Guarantee, and (C) to
enforce the rights of the Holders of the Partnership Preferred Securities to
receive distributions (if and to the extent such distributions have been
declared out of funds legally available therefor by the General Partner in its
sole discretion) on the Partnership Preferred Securities or (ii) consent to any
amendment, modification, or termination of the Limited Partnership Agreement or
the Partnership Preferred Securities where such consent shall be required;
provided, however, that where a consent or action under the Limited Partnership
Agreement would require the consent or act of the Holders of more than a
majority of the aggregate liquidation amount of Partnership Preferred
Securities affected thereby, only the Holders of the percentage of the
aggregate stated liquidation amount of the Trust Preferred Securities which is
at least equal to the percentage required under the Limited Partnership
Agreement may direct the Property Trustee to give such consent or take such
action.
(c) If the Property Trustee fails to enforce its rights under the
Partnership Preferred Securities after a Holder of record of Trust Preferred
Securities has made a written request, such Holder of record of Trust Preferred
Securities may institute a legal proceeding directly against the General
Partner or the Special Representative, to enforce the Property Trustee's rights
under the Limited Partnership Agreement without first instituting any legal
proceeding against the Property Trustee or any other person or entity.
Notwithstanding the foregoing, if a Trust Enforcement Event has occurred and is
continuing and such event is attributable to the failure of an Investment
Affiliate to make any required payment when due on any Affiliate Investment
Instrument, then a Holder of Trust Preferred Securities may directly institute
a proceeding against such Investment Affiliate for enforcement of payment with
respect to such Affiliate Investment Instrument.
(d) The Property Trustee shall notify all Holders of the Trust
Preferred Securities of any notice of any Partnership Enforcement Event
received from the General Partner with respect to the Partnership Preferred
Securities and the Affiliate Investment Instruments. Such notice shall state
that such Partnership Enforcement Event also constitutes a Trust Enforcement
Event. Except with respect to directing the time, method, and place of
conducting a proceeding for a remedy, the Property Trustee shall be under no
obligation to take any of the actions described in clause 8.4(b)(i) and (ii)
above unless the Property Trustee has obtained an opinion of independent tax
counsel to the effect that as a result of such action, the Trust will not be
classified as an association or a publicly traded partnership taxable as a
corporation for United States federal income tax purposes and each Holder will
be treated as owning an undivided beneficial ownership interest in the
Partnership Preferred Securities.
(e) In the event the consent of the Property Trustee, as the
Holder of the Partnership Preferred Securities, is required under the Limited
Partnership Agreement with respect to any amendment, modification or
termination of the Limited Partnership Agreement, the Property Trustee shall
request the direction of the Holders of the Trust Securities with respect to
such amendment, modification or termination and shall vote with respect to such
amendment, modification or termination as directed by a Majority in liquidation
amount of the Trust Securities voting together as a single class; provided,
however, that where a consent under the Limited Partnership Agreement would
require the consent of the Holders of more than a majority of the aggregate
principal amount of the Partnership Preferred Securities, the Property Trustee
may only give such consent at the direction of the Holders of at least the same
proportion in aggregate stated liquidation amount of the Trust Securities. The
Property Trustee shall not take any such action in accordance with the
directions of the Holders of the Trust Securities unless the Property Trustee
has obtained an opinion of tax counsel to the effect that as a result of such
action, the Trust will not be classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income tax
purposes.
(f) A waiver of a Partnership Enforcement Event with respect to
the Partnership Preferred Securities will constitute a waiver of the
corresponding Trust Enforcement Event.
(g) Any required approval or direction of Holders of Trust
Preferred Securities may be given at a separate meeting of Holders of Trust
Preferred Securities convened for such purpose, at a meeting of all of the
30
<PAGE> 36
Holders of Trust Securities or pursuant to written consent. The Regular
Trustees will cause a notice of any meeting at which Holders of Trust Preferred
Securities are entitled to vote, or of any matter upon which action by written
consent of such Holders is to be taken, to be mailed to each Holder of record
of Trust Preferred Securities. Each such notice will include a statement
setting forth the following information: (i) the date of such meeting or the
date by which such action is to be taken; (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to
vote or of such matter upon which written consent is sought; and (iii)
instructions for the delivery of proxies or consents.
(h) No vote or consent of the Holders of Trust Preferred
Securities will be required for the Trust to redeem and cancel Trust Preferred
Securities or distribute Partnership Preferred Securities in accordance with
the Declaration.
(i) Notwithstanding that Holders of Trust Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Trust Securities that are owned at such time by the Company or any
entity directly or indirectly controlled by, or under direct or indirect common
control with, the Company, shall not be entitled to vote or consent and shall,
for purposes of such vote or consent, be treated as if such Trust Securities
were not outstanding, provided, however that persons otherwise eligible to vote
to whom the Company or any of its subsidiaries have pledged Trust Preferred
Securities may vote or consent with respect to such pledged Trust Preferred
Securities under any of the circumstances described herein.
(j) Holders of the Trust Preferred Securities will have no rights
to appoint or remove the Regular Trustees, who may be appointed, removed or
replaced solely by the Company, as the Holder of all of the Trust Common
Securities.
SECTION 8.5 Voting Rights of Trust Common Securities.
(a) Except as provided under this Section 8.5 or as otherwise
required by the Business Trust Act, the Trust Indenture Act or other applicable
law or provided by the Declaration, the Holders of the Trust Common Securities
will have no voting rights.
(b) The Holders of the Trust Common Securities are entitled,
subject to Article VI hereof, to vote to appoint, remove or replace any Trustee
or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after all
Trust Enforcement Events with respect to the Trust Preferred Securities have
been cured, waived, or otherwise eliminated and subject to the requirement of
the Property Trustee obtaining a tax opinion in certain circumstances set forth
in this paragraph (c), the Holders of a Majority in liquidation amount of the
Trust Common Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee, or
direct the exercise of any trust or power conferred upon the Property Trustee
under the Declaration, including the right to direct the Property Trustee, as
Holder of the Partnership Preferred Securities, to (i) exercise the remedies
available to it under the Limited Partnership Agreement as a Holder of the
Partnership Preferred Securities, including the right to direct the Special
Representative of the Partnership as elected by the Holders of the Partnership
Preferred Securities in accordance with the Limited Partnership Agreement (A)
to enforce the Partnership's creditors rights and other rights with respect to
the Affiliate Investment Instruments and any Investment Guarantees, (B) to
enforce the rights of the Holders of the Partnership Preferred Securities under
the Partnership Guarantee, and (C) to enforce the rights of the Holders of the
Partnership Preferred Securities to receive distributions (if and to the extent
such distributions have been declared out of funds legally available therefor
by the General Partner in its sole discretion) on the Partnership Preferred
Securities or (ii) consent to any amendment, modification, or termination of
the Limited Partnership Agreement or the Partnership Preferred Securities where
such consent shall be required; provided, however, that where a consent or
action under the Limited Partnership Agreement would require the consent or act
of the Holders of more than a majority of the aggregate liquidation amount of
Partnership Preferred Securities affected thereby, only the Holders of the
percentage of the aggregate stated liquidation amount of the Trust Common
Securities which is at least equal to the percentage required under the Limited
Partnership Agreement
31
<PAGE> 37
may direct the Property Trustee to give such consent or take such action.
Except with respect to directing the time, method, and place of conducting a
proceeding for a remedy, the Property Trustee shall be under no obligation to
take any of the actions described in clause 8.5(c)(i) and (ii) above unless the
Property Trustee has obtained an opinion of independent tax counsel to the
effect that, as a result of such action, for United States federal income tax
purposes the Trust will not be classified as an association or a publicly
traded partnership taxable as a corporation.
(d) If the Property Trustee fails to enforce its rights under the
Partnership Preferred Securities after a Holder of record of Trust Common
Securities has made a written request, such Holder of record of Trust Common
Securities may directly institute a legal proceeding directly against the
Company, as General Partner of the Partnership or the Special Representative,
to enforce the Property Trustee's rights under the Partnership Preferred
Securities without first instituting any legal proceeding against the Property
Trustee or any other person or entity. Notwithstanding the foregoing, if a
Trust Enforcement Event has occurred and is continuing and such event is
attributable to the failure of an Investment Affiliate to make any required
payment when due on any Affiliate Investment Instrument, then a Holder of Trust
Common Securities may directly institute a proceeding against such Investment
Affiliate for enforcement of payment with respect to such Affiliate Investment
Instrument.
(e) A waiver of a Partnership Enforcement Event with respect to
the Partnership Preferred Securities will constitute a waiver of the
corresponding Trust Enforcement Event.
(f) Any required approval or direction of Holders of Trust Common
Securities may be given at a separate meeting of Holders of Trust Common
Securities convened for such purpose, at a meeting of all of the Holders of
Trust Securities or pursuant to written consent. The Regular Trustees will
cause a notice of any meeting at which Holders of Trust Common Securities are
entitled to vote, or of any matter upon which action by written consent of such
Holders is to be taken, to be mailed to each Holder of record of Trust Common
Securities. Each such notice will include a statement setting forth the
following information: (i) the date of such meeting or the date by which such
action is to be taken; (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought; and (iii) instructions for the
delivery of proxies or consents.
(g) No vote or consent of the Holders of the Trust Common
Securities shall be required for the Trust to redeem and cancel Trust Common
Securities or to distribute Partnership Preferred Securities in accordance with
the Declaration and the terms of the Trust Securities.
SECTION 8.6 Paying Agent.
In the event that the Trust Preferred Securities are not in book-entry
only form, the Trust shall maintain in the Borough of Manhattan, City of New
York, State of New York, an office or agency where the Trust Preferred
Securities may be presented for payment ("Paying Agent). The Trust may appoint
the Paying Agent and may appoint one or more additional paying agents in such
other locations as it shall determine. The term "Paying Agent" includes any
additional paying agent. The Trust may change any Paying Agent without prior
notice to any Holder. The Trust shall notify the Property Trustee of the name
and address of any Paying Agent not a party to this Declaration. If the Trust
fails to appoint or maintain another entity as Paying Agent, the Property
Trustee shall act as such. The Trust or any of its Affiliates may act as
Paying Agent. The Chase Manhattan Bank shall initially act as Paying Agent for
the Trust Preferred Securities and the Trust Common Securities.
SECTION 8.7 Listing
The Sponsor shall use its best efforts to cause the Trust Preferred
Securities to be listed for quotation on the New York Stock Exchange.
SECTION 8.8 Acceptance of Guarantee and Agreements, Limited Partnership
Agreement.
32
<PAGE> 38
Each Holder of Trust Preferred Securities and Trust Common Securities,
by the acceptance thereof, agrees to the provisions of the applicable Trust
Guarantee, the Partnership Guarantee, and the Investment Guarantee,
respectively, including the subordination provisions therein.
ARTICLE IX
TERMINATION AND LIQUIDATION OF THE TRUST
SECTION 9.1 Termination of Trust.
(a) The Trust shall terminate:
(i) upon the bankruptcy, insolvency or dissolution of the
Holder of Trust Common Securities or the Sponsor;
(ii) upon the filing of a certificate of dissolution or
its equivalent with respect to the Sponsor, the filing of a
certificate of cancellation with respect to the Trust after having
obtained the consent of at least a Majority in liquidation amount of
the Trust Securities, voting together as a single class, to file such
certificate of cancellation, or the revocation of the Sponsor's
charter and the expiration of 90 days after the date of revocation
without a reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution of
the Sponsor or the Trust;
(iv) when all of the Trust Securities shall have been
called for redemption and the amounts necessary for redemption thereof
shall have been paid to the Holders in accordance with the terms of
the Trust Securities;
(v) upon the election of the Regular Trustees, following
the occurrence and continuation of a Trust Special Event, pursuant to
which the Trust shall have been dissolved in accordance with the terms
of the Trust Securities and all of the Partnership Preferred
Securities shall have been distributed to the Holders of Trust
Securities in exchange for all of the Trust Securities; or
(vi) before the issuance of any Trust Securities, with the
consent of all of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 9.1(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article XI shall survive the
termination of the Trust.
SECTION 9.2 Liquidation Distribution Upon Termination and Dissolution of
the Trust.
(a) In the event of any voluntary or involuntary liquidation,
dissolution, winding-up or termination of the Trust (each a "Trust
Liquidation"), the Holders of the Trust Preferred Securities on the date of the
Trust Liquidation will be entitled to receive, out of the assets of the Trust
available for distribution to Holders of Trust Securities after satisfaction of
the Trusts' liabilities and creditors, distributions in cash or other
immediately available funds in an amount equal to the aggregate of the stated
liquidation amount of $25 per Trust Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the "Trust
Liquidation Distribution"), unless, in connection with such Trust Liquidation,
Partnership Preferred Securities in an aggregate stated liquidation amount
equal to the aggregate stated liquidation amount of, with a distribution rate
identical to the distribution rate of, and accrued and unpaid distributions
equal to accrued and unpaid distributions on, such Trust Securities shall be
distributed on a Pro Rata basis to the Holders of the Trust Securities in
exchange for such Trust Securities.
33
<PAGE> 39
(b) If, upon any such Trust Liquidation, the Trust Liquidation
Distribution can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Trust Liquidation Distribution, then,
except as provided below, the amounts payable directly by the Trust on the
Trust Securities shall be paid on a Pro Rata basis. The Holders of the Trust
Common Securities will be entitled to receive distributions upon any such Trust
Liquidation Pro Rata with the Holders of the Trust Preferred Securities except
that if the Company is in default on any of its obligations under the Trust
Preferred Securities Guarantee, the Partnership Guarantee, or any Investment
Guarantee, or any Investment Event of Default has occurred and is continuing
with respect to an Affiliate Investment Instrument, the Trust Preferred
Securities shall have a preference over the Trust Common Securities with regard
to such distributions as provided below. Such preference is effectuated by the
Holder of the Trust Common Securities hereby agreeing to provide limited
recourse guarantees as follows: (i) to the Holders of the Trust Preferred
Securities, of the Company's obligations under the Trust Preferred Securities
Guarantee; (ii) to the Trust and the Holders of the Trust Preferred Securities,
of the Company's obligations under the Partnership Guarantee; and (iii) to the
Partnership and the Holders of the Trust Preferred Securities, of the Company's
obligations under any Investment Guarantee and/or the obligations of any
Investment Affiliate under an Affiliate Investment Instrument. In the case of
the limited recourse guarantee given by the Holder of the Trust Common
Securities to the Partnership and the Holder of the Trust Preferred Securities
in respect of the Company's obligations under any Investment Guarantee and/or
any Investment Affiliate's obligations under an Affiliate Investment
Instrument, (i) the Trust Common Securities Holder will be deemed to have
pledged the amount due in respect of its Trust Common Securities upon a
liquidation of the Trust to the Partnership and the Holders of Trust Preferred
Securities; (ii) the Trust Common Securities Holder will be deemed to have paid
such amount to the Partnership in respect of such defaulted Investment
Guarantee and/or Affiliate Investment Instrument, as the case may be; (iii) the
Partnership will be deemed to have paid such amount to the Trust; and (iv) the
Property Trustee is hereby authorized to distribute such amount to the Holders
of Trust Preferred Securities (on a pro rata basis among such Trust Preferred
Securities Holders) in respect of the Trust Common Securities Holder's pledge
of such amounts to such Trust Preferred Securities Holders. In the case of a
limited recourse guarantee given by the Holder of the Trust Common Securities
to the Trust and the Holders of the Trust Preferred Securities in respect of
the Company's obligations under the Partnership Guarantee, (i) the Holder of
the Trust Common Securities will be deemed to have pledged the amount due in
respect of its Trust Common Securities upon a liquidation of the Trust to the
Trust and the Holders of the Trust Preferred Securities; (ii) the Holder of the
Trust Common Securities will be deemed to have paid such amount to the Trust in
respect of its obligations under the Partnership Guarantee; and (iii) the
Property Trustee is hereby authorized to distribute such amount to the Holders
of the Trust Preferred Securities (on a pro rata basis among such Trust
Preferred Securities Holders) in respect of the Trust Common Securities
Holder's pledge of such amount to such Trust Preferred Securities Holders.
ARTICLE X
TRANSFER OF INTERESTS
SECTION 10.1 Transfer of Trust Securities.
(a) Trust Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Declaration and
in the terms of the Trust Securities. Any transfer or purported transfer of
any Trust Security not made in accordance with this Declaration shall be null
and void.
(b) Subject to this Article X, Trust Preferred Securities shall be
freely transferable.
SECTION 10.2 Transfer of Certificates.
The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges that may be imposed
in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to
be issued in the name of the designated transferee or transferees. Every
Certificate surrendered for registration of
34
<PAGE> 40
transfer shall be accompanied by a written instrument of transfer in form
satisfactory to the Regular Trustees duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Certificate surrendered for
registration of transfer shall be canceled by the Regular Trustees. A
transferee of a Certificate shall be entitled to the rights and be subject to
the obligations of a Holder hereunder upon the receipt by such transferee of a
Certificate. By acceptance of a Certificate, each transferee shall be deemed
to have agreed to be bound by this Declaration.
SECTION 10.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate shall
be registered on the books and records of the Trust as the sole Holder of such
Certificate and of the Trust Securities represented by such Certificate for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Trust Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 10.4 Book-Entry Interests.
Unless otherwise specified in the terms of the Trust Preferred
Securities, the Trust Preferred Securities Certificates, on original issuance,
will be issued in the form of one or more fully registered, global Trust
Preferred Security Certificates (each a "Global Certificate"), to be delivered
to DTC, the initial Clearing Agency, by, or on behalf of, the Trust. Such
Global Certificates shall initially be registered on the books and records of
the Trust in the name of Cede & Co., the nominee of DTC, and no Trust Preferred
Security Beneficial Owner will receive a definitive Trust Preferred Security
Certificate representing such Trust Preferred Security Beneficial Owner's
interests in such Global Certificates, except as provided in Section 10.7.
Unless and until definitive, fully registered Trust Preferred Security
Certificates (the "Definitive Trust Preferred Security Certificates") have been
issued to the Trust Preferred Security Beneficial Owners pursuant to Section
10.7:
(a) the provisions of this Section 10.4 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the payment of
Distributions on the Global Certificates and receiving approvals, votes or
consents hereunder) as the Holder of the Trust Preferred Securities and the
sole Holder of the Global Certificates and shall have no obligation to the
Trust Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 10.4
conflict with any other provisions of this Declaration, the provisions of this
Section 10.4 shall control; and
(d) the rights of the Trust Preferred Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be limited to
those established by law and agreements between such Trust Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants and the Clearing Agency shall receive and transmit payments of
Distributions on the Global Certificates to such Clearing Agency Participants.
The Clearing Agency will make book-entry transfers among the Clearing Agency
Participants; provided, that solely for the purposes of determining whether the
Holders of the requisite amount of Trust Preferred Securities have voted on any
matter provided for in this Declaration, so long as Definitive Trust Preferred
Security Certificates have not been issued, the Trustees may conclusively rely
on, and shall be fully protected in relying on, any written instrument
(including a proxy) delivered to the Trustees by the Clearing Agency setting
forth the Trust Preferred Security Beneficial Owners' votes or assigning the
right to vote on any matter to any other Persons either in whole or in part.
35
<PAGE> 41
SECTION 10.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Trust Preferred
Security Holders is required under this Declaration, unless and until
Definitive Trust Preferred Security Certificates shall have been issued to the
Trust Preferred Security Beneficial Owners pursuant to Section 10.7, the
Regular Trustees shall give all such notices and communications specified
herein to be given to the Trust Preferred Security Holders to the Clearing
Agency, and shall have no notice obligations to the Trust Preferred Security
Beneficial Owners.
SECTION 10.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Trust Preferred Securities, the
Regular Trustees may, in their sole discretion, appoint a successor Clearing
Agency with respect to such Trust Preferred Securities.
SECTION 10.7 Definitive Trust Preferred Security Certificates.
If (a) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Trust Preferred Securities and a
successor Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 10.6; (b) the Regular Trustees elect after
consultation with the Sponsor to terminate the book-entry system through the
Clearing Agency with respect to the Trust Preferred Securities; or (c) there is
a Trust Enforcement Event (to the extent required by the Clearing Agency),
then:
(i) Definitive Trust Preferred Security Certificates
shall be prepared by the Regular Trustees on behalf of the Trust with
respect to such Trust Preferred Securities; and
(ii) upon surrender of the Global Certificates by the
Clearing Agency, accompanied by registration instructions, the Regular
Trustees shall cause Definitive Trust Preferred Security Certificates
to be delivered to Trust Preferred Security Beneficial Owners in
accordance with the instructions of the Clearing Agency. Neither the
Trustees nor the Trust shall be liable for any delay in delivery of
such instructions and each of them may conclusively rely on and shall
be protected in relying on, said instructions of the Clearing Agency.
The Definitive Trust Preferred Security Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Regular Trustees, as evidenced by their
execution thereof, and may have such letters, numbers or other marks
of identification or designation and such legends or endorsements as
the Regular Trustees may deem appropriate, or as may be required to
comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which
Trust Preferred Securities may be listed, or to conform to usage.
SECTION 10.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and (b)
there shall be delivered to the Regular Trustees such security or indemnity as
may be required by them to keep each of them harmless, then, in the absence of
notice that such Certificate shall have been acquired by a bona fide purchaser,
any Regular Trustee on behalf of the Trust shall execute and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like denomination. In connection with the
issuance of any new Certificate under this Section 10.8, the Regular Trustees
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive
evidence of an ownership interest in the relevant Trust Securities, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
36
<PAGE> 42
ARTICLE XI
LIMITATION OF LIABILITY OF
HOLDERS OF TRUST SECURITIES, TRUSTEES OR OTHERS
SECTION 11.1 Liability.
(a) Except as expressly set forth in this Declaration, the Trust
Guarantees and the terms of the Trust Securities, the Sponsor and the Trustees
shall not be:
(i) personally liable for the return of any portion of
the capital contributions (or any return thereon) of the Holders of
the Trust Securities which shall be made solely from assets of the
Trust; and
(ii) required to pay to the Trust or to any Holder of
Trust Securities any deficit upon dissolution of the Trust or
otherwise.
(b) Notwithstanding any other provision herein, the Holder of the
Trust Common Securities, by entering into this Agreement, agrees that it shall
be liable directly to any creditor or claimant of or against the Trust for the
entire amount of all of the debts and obligations of the Trust (other than
obligations to the Holders of Trust Securities in their capacities as Holders)
to the extent not satisfied out of the Trust's assets as if the Holder of the
Trust Common Securities were the General Partner of a limited partnership
organized under the Delaware Revised Uniform Limited Partnership Act. This
Section 11.1(b) will automatically terminate upon (i) the adoption of final or
temporary United States federal tax regulations which, if the Trust were not
classified as a grantor trust for United States federal income tax purposes,
would result in the classification of the Trust as a partnership for United
States federal tax purposes without regard to its organic characteristics and
(ii) the taking of such action, if any, by the Trust or the Holders of Trust
Securities as may be necessary to achieve such classification.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Trust Preferred Securities shall be entitled to the same
limitation of personal liability extended to shareholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.
SECTION 11.2 Exculpation.
(a) No Company Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Company Indemnified Person in good faith on behalf of the Trust
and in a manner such Company Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Company Indemnified Person
by this Declaration or by law, except that a Company Indemnified Person shall
be liable for any such loss, damage or claim incurred by reason of such Company
Indemnified Person's gross negligence or willful misconduct with respect to
such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Trust Securities might properly be paid.
SECTION 11.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions
of this Declaration, to the extent that they restrict the duties and
37
<PAGE> 43
liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under the Trust
Indenture Act), are agreed by the parties hereto to replace such other duties
and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Trust Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative interest of
each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by the Indemnified Person shall not constitute a breach of this
Declaration or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own interests, and
shall have no duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express standard
and shall not be subject to any other or different standard imposed by
this Declaration or by applicable law.
SECTION 11.4 Indemnification.
(a) (i) To the fullest extent permitted by applicable law,
the Sponsor shall indemnify and hold harmless any Company Indemnified
Person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Trust) by reason of the fact that
he is or was a Company Indemnified Person against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests
of the Trust, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
Company Indemnified Person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was
unlawful.
(ii) The Sponsor shall indemnify, to the fullest extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a
Company Indemnified Person against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or
38
<PAGE> 44
suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Trust and except
that no such indemnification shall be made in respect of any claim,
issue or matter as to which such Company Indemnified Person shall have
been adjudged to be liable to the Trust unless and only to the extent
that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such Court of Chancery
or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall
be successful on the merits or otherwise (including dismissal of an
action without prejudice or the settlement of an action without
admission of liability) in defense of any action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 11.4(a), or in
defense of any claim, issue or matter therein, he shall be
indemnified, to the fullest extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of
this Section 11.4(a) (unless ordered by a court) shall be made by the
Sponsor only as authorized in the specific case upon a determination
that indemnification of the Company Indemnified Person is proper in
the circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such determination
shall be made (1) by the Regular Trustees by a majority vote of a
quorum consisting of such Regular Trustees who were not parties to
such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested
Regular Trustees so directs, by independent legal counsel in a written
opinion, or (3) by the Holder of the Trust Common Securities.
(v) Expenses (including attorneys' fees) incurred by a
Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to
in paragraphs (i) and (ii) of this Section 11.4(a) shall be paid by
the Sponsor in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such
Company Indemnified Person to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the Sponsor
as authorized in this Section 11.4(a). Notwithstanding the foregoing,
no advance shall be made by the Sponsor if a determination is
reasonably and promptly made (i) by the Regular Trustees by a majority
vote of a quorum of disinterested Regular Trustees, (ii) if such a
quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent legal
counsel in a written opinion or (iii) the Holder of the Trust Common
Securities, that, based upon the facts known to the Regular Trustees,
counsel or the Holder of the Trust Common Securities at the time such
determination is made, such Company Indemnified Person acted in bad
faith or in a manner that such person did not believe to be in or not
opposed to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Company Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In no event
shall any advance be made in instances where the Regular Trustees,
independent legal counsel or Holder of the Trust Common Securities
reasonably determine that such person deliberately breached his duty
to the Trust or Holders of Trust Common Securities.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this
Section 11.4(a) shall not be deemed exclusive of any other rights to
which those seeking indemnification and advancement of expenses may be
entitled under any agreement, vote of shareholders or disinterested
directors of the Sponsor or Holders of the Trust Preferred Securities
or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office. All rights to
indemnification under this Section 11.4(a) shall be deemed to be
provided by a contract between the Sponsor and each Company
Indemnified Person who serves in such capacity at any time while this
Section 11.4(a) is in effect. Any repeal or modification of this
Section 11.4(a) shall not affect any rights or obligations then
existing.
39
<PAGE> 45
(vii) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or
not the Sponsor would have the power to indemnify him against such
liability under the provisions of this Section 11.4(a).
(viii) For purposes of this Section 11.4(a), references to
"the Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any person
who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent
of another entity, shall stand in the same position under the
provisions of this Section 11.4(a) with respect to the resulting or
surviving entity as he would have with respect to such constituent
entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 11.4(a) shall,
unless otherwise provided when authorized or ratified, continue as to
a person who has ceased to be a Company Indemnified Person and shall
inure to the benefit of the heirs, executors and administrators of
such a person.
(b) The Sponsor agrees to indemnify the (i) Property Trustee, (ii)
the Delaware Trustee, (iii) any Affiliate of the Property Trustee and the
Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Property Trustee and the Delaware Trustee (each of the Persons in (i) through
(iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any loss, damage, claim,
liability or expense including taxes (other than taxes based on the income of
the Trustee) incurred without negligence or bad faith on the part of the
Fiduciary Indemnified Person arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligation to indemnify as set forth in this Section 11.4(b) shall survive the
satisfaction and discharge of this Declaration.
SECTION 11.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the Property
Trustee may engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or dissimilar to
the business of the Trust, and the Trust and the Holders of Trust Securities
shall have no rights by virtue of this Declaration in and to such independent
ventures or the income or profits derived therefrom, and the pursuit of any
such venture, even if competitive with the business of the Trust, shall not be
deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware
Trustee, nor the Property Trustee shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and any
Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee
shall have the right to take for its own account (individually or as a partner
or fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for, or act on any committee or body of Holders of, securities or
other obligations of the Sponsor or its Affiliates.
40
<PAGE> 46
ARTICLE XII
ACCOUNTING
SECTION 12.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code or the Treasury
Regulations.
SECTION 12.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The books of account and the records of the
Trust shall be examined by and reported upon as of the end of each Fiscal Year
of the Trust by a firm of independent certified public accountants selected by
the Regular Trustees.
(b) Within 60 days after May 15 of each year, the Property Trustee
shall provide to the Holders of the Trust Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The Property
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Trust Securities, any annual United States
federal income tax information statement, required by the Code, containing such
information with regard to the Trust Securities held by each Holder as is
required by the Code and the Treasury Regulations. Notwithstanding any right
under the Code to deliver any such statement at a later date, the Regular
Trustees shall endeavor to deliver all such statements within 30 days after the
end of each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return on form 1041 or other applicable form or statement under United
States federal income tax law, and any other annual income tax returns required
to be filed by the Regular Trustees on behalf of the Trust with any state or
local taxing authority.
SECTION 12.3 Banking.
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Partnership Preferred Securities held by the Property Trustee
shall be made directly to the Property Account and no other funds of the Trust
shall be deposited in the Property Account. The sole signatories for such
accounts shall be designated by the Regular Trustees; provided, however, that
the Property Trustee shall designate the signatories for the Property Account.
SECTION 12.4 Withholding.
The Regular Trustees shall cause the Trust to comply with all
withholding requirements under United States federal, state and local law. The
Trust shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably
be requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Regular Trustees shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder, the amount withheld
shall be deemed to be a distribution in the amount of the withholding to the
Holder. In the event of any
41
<PAGE> 47
claimed overwithholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not
withheld from actual Distributions made, the Trust may reduce subsequent
Distributions by the amount of such withholding. Notwithstanding anything
herein to the contrary, the Regular Trustees shall cause the Trust, absent
receipt of an opinion of nationally recognized tax counsel to the contrary, to
withhold thirty percent (30%) (or such other rate as may be imposed as a result
of an amendment to the Code or such lower rate as may be imposed under an
applicable income tax treaty) on the gross amount of any Distributions on Trust
Preferred Securities held by a Holder that is not a "United States person"
within the meaning of Section 7701(a)(30) of the Code.
ARTICLE XIII
AMENDMENTS AND MEETINGS
SECTION 13.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Trust Securities, this Declaration may only be amended
by a written instrument approved and executed by the Regular Trustees (or, if
there are more than two Regular Trustees a majority of the Regular Trustees) ,
the Property Trustee and the Delaware Trustee;
(b) No amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee and the Delaware Trustee shall have first received an
Officers' Certificate from each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to, the terms of this
Declaration (including the terms of the Trust Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Property Trustee or the Delaware Trustee, the Property Trustee or the
Delaware Trustee, as the case may be, shall have first received an
opinion of counsel (who may be counsel to the Sponsor or the Trust)
that such amendment is permitted by, and conforms to, the terms of
this Declaration (including the terms of the Trust Securities); and
(iii) to the extent the result of such amendment would be
to:
(A) cause the Trust to be classified for
purposes of United States federal income taxation as an
association or a publicly traded partnership taxable as a
corporation;
(B) cause the Partnership to be classified for
purposes of United States federal income tax as an association
or a publicly traded partnership taxable as a corporation;
(C) reduce or otherwise adversely affect the
powers of the Property Trustee in contravention of the Trust
Indenture Act; or
(D) cause the Trust to be deemed to be an
Investment Company required to be registered under the 1940
Act.
(c) In the event the consent of the Property Trustee, as the
Holder of the Partnership Preferred Securities is required under the Limited
Partnership Agreement with respect to any amendment, modification or
termination of the Limited Partnership Agreement or the Partnership Preferred
Securities the Property Trustee shall request the direction of the Holders of
the Trust Securities with respect to such amendment, modification or
termination and shall vote with respect to such amendment, modification or
termination as directed by a Majority in liquidation amount of the Trust
Securities voting together as a single class; provided, however, that where a
42
<PAGE> 48
consent under the Limited Partnership Agreement would require the consent of a
Super Majority of the Holders of Partnership Preferred Securities the Property
Trustee may only give such consent at the direction of the Holders of at least
the proportion in liquidation amount of the Trust Securities which the relevant
Super Majority represents of the aggregate liquidation amount of the
Partnership Preferred Securities outstanding; provided, further, that the
Property Trustee shall not be obligated to take any action in accordance with
the directions of the Holders of the Trust Securities under this Section
13.1(c) unless the Property Trustee has obtained an opinion of independent tax
counsel to the effect that as a result of such action, the Trust will not be
classified as an association or a publicly traded partnership taxable as a
corporation for United States federal income tax purposes
(d) At such time after the Trust has issued any Trust Securities
that remain outstanding, any amendment that would (i) adversely affect the
powers, preferences or special rights of the Trust Securities or (ii) provide
for the dissolution, winding-up or termination of the Trust other than pursuant
to the terms of this Declaration, may be effected only with the approval of the
Holders of at least a Majority in liquidation amount of the Trust Securities
affected thereby; provided, that if any amendment or proposal referred to in
clause (i) hereof would adversely affect only the Trust Preferred Securities or
the Trust Common Securities, then only the affected class will be entitled to
vote on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of a Majority in liquidation amount of such
class of Trust Securities;
(e) Section 11.1(c) and this Section 13.1 shall not be amended
without the consent of all of the Holders of the Trust Securities;
(f) Article V shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Trust Common Securities;
(g) The rights of the Holders of the Trust Common Securities under
Article VI to increase or decrease the number of, and appoint and remove
Trustees shall not be amended without the consent of the Holders of a Majority
in liquidation amount of the Trust Common Securities; and
(h) Notwithstanding Section 13.1(c), this Declaration may be
amended without the consent of the Holders of the Trust Securities:
(i) to cure any ambiguity;
(ii) to correct or supplement any provision in this
Declaration that may be defective or inconsistent with any other
provision of this Declaration;
(iii) to add to the covenants, restrictions or obligations
of the Sponsor;
(iv) to conform to any change in the 1940 Act or written
change in interpretation or application of the rules and regulations
promulgated thereunder by any legislative body, court, government
agency or regulatory authority;
(v) to conform to any change in the Trust Indenture Act
or written change in interpretation or application of the rules and
regulations promulgated thereunder by any legislative body, court,
government agency or regulatory authority; and
(vi) to modify, eliminate and add to any provision of this
Declaration to such extent as may be necessary;
provided that such amendments do not have a material adverse effect on
the rights, preferences or privileges of the Holders.
43
<PAGE> 49
SECTION 13.2 Meetings of the Holders of Trust Securities; Action by Written
Consent.
(a) Meetings of the Holders of any class of Trust Securities may
be called at any time by the Regular Trustees (or as provided in the terms of
the Trust Securities) to consider and act on any matter on which Holders of
such class of Trust Securities are entitled to act under the terms of this
Declaration, the terms of the Trust Securities, the Limited Partnership
Agreement, the rules of any stock exchange on which the Trust Preferred
Securities are listed or admitted for trading, the Business Trust Act or other
applicable law. The Regular Trustees shall call a meeting of the Holders of
such class if directed to do so by the Holders of at least 10% in liquidation
amount of such class of Trust Securities. Such direction shall be given by
delivering to the Regular Trustees one or more calls in a writing stating that
the signing Holders of Trust Securities wish to call a meeting and indicating
the general or specific purpose for which the meeting is to be called. Any
Holders of Trust Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Trust Securities exercising the right to
call a meeting and only those Trust Securities specified shall be counted for
purposes of determining whether the required percentage set forth in the second
sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Trust Securities, the following provisions shall apply to meetings of Holders
of Trust Securities:
(i) notice of any such meeting shall be given to all the
Holders of Trust Securities having a right to vote thereat at least 7
days and not more than 60 days before the date of such meeting. Any
action that may be taken at a meeting of the Holders of Trust
Securities may be taken without a meeting if a consent in writing
setting forth the action so taken is signed by the Holders of Trust
Securities owning not less than the minimum amount of Trust Securities
in liquidation amount that would be necessary to authorize or take
such action at a meeting at which all Holders of Trust Securities
having a right to vote thereon were present and voting. Prompt notice
of the taking of action without a meeting shall be given to the
Holders of Trust Securities entitled to vote who have not consented in
writing. The Regular Trustees may specify that any written ballot
submitted to the Holder for the purpose of taking any action without a
meeting shall be returned to the Trust within the time specified by
the Regular Trustees;
(ii) each Holder of a Trust Security may authorize any
Person to act for it by proxy on all matters in which a Holder of
Trust Securities is entitled to participate, including waiving notice
of any meeting, or voting or participating at a meeting. No proxy
shall be valid after the expiration of 11 months from the date thereof
unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the Holder of Trust Securities executing
it. Except as otherwise provided herein, all matters relating to the
giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and
judicial interpretations thereunder, as if the Trust were a Delaware
corporation and the Holders of the Trust Securities were shareholders
of a Delaware corporation;
(iii) each meeting of the Holders of the Trust Securities
shall be conducted by the Regular Trustees or by such other Person
that the Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the
terms of the Trust Securities, the Trust Indenture Act or the listing
rules of any stock exchange on which the Trust Preferred Securities
are then listed for trading, otherwise provide, the Regular Trustees,
in their sole discretion, shall establish all other provisions
relating to meetings of Holders of Trust Securities, including notice
of the time, place or purpose of any meeting at which any matter is to
be voted on by any Holders of Trust Securities, waiver of any such
notice, action by consent without a meeting, the establishment of a
record date, quorum requirements, voting in person or by proxy or any
other matter with respect to the exercise of any such right to vote.
44
<PAGE> 50
ARTICLE XIV
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 14.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(a) The Property Trustee is a New York banking corporation with
trust powers, duly organized, validly existing and in good standing under the
laws of the State of New York, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, the
Declaration;
(b) The execution, delivery and performance by the Property
Trustee of the Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Declaration has been duly
executed and delivered by the Property Trustee;
(c) The execution, delivery and performance of the Declaration by
the Property Trustee does not conflict with or constitute a breach of the
Articles of Incorporation or By-laws of the Property Trustee;
(e) The Property Trustee, pursuant to this Declaration, shall hold
legal title to, and a valid ownership interest on behalf of the Holders of the
Trust Securities, in the Partnership Preferred Securities and agrees that,
except as expressly provided or contemplated by this Agreement, it will not
create, incur or assume, or suffer to exist any mortgage, pledge,
hypothecation, encumbrance, lien or other charge or security interest upon the
Partnership Preferred Securities.
SECTION 14.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) The Delaware Trustee is a Delaware corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
with power and authority to execute and deliver, and to carry out and perform
its obligations under the terms of, the Declaration;
(b) The Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Declaration.
(c) The Delaware Trustee is an entity which has its principal
place of business in the State of Delaware.
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by registered or certified mail, as follows:
45
<PAGE> 51
(a) If given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Holders of the Trust Securities):
Enron Capital Trust I
c/o Enron Corp.
1400 Smith Street
Houston, TX 77002
Attention: Treasury Department
(b) If given to the Delaware Trustee, at the mailing address set
forth below (or such other address as the Delaware Trustee may give notice of
to the other Trustees):
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, DE 19801
Attention: Global Trust Services
(c) If given to the Property Trustee, at the mailing address set
forth below (or such other address as the Property Trustee may give notice of
to the Holders of the Trust Securities and the other Trustee):
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, NY 10001
Attention: Global Trust Services
(d) If given to the Holder of the Trust Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Trust Common Securities may give notice of to the Trust):
Enron Corp.
1400 Smith Street
Houston, TX 77002
Attention: Treasury Department
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 15.2 Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and construed in accordance with the internal laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws, except that the rights, duties and
remedies of the Property Trustee hereunder shall be governed by the internal
laws of the State of New York without regard to principles of conflict of laws.
46
<PAGE> 52
SECTION 15.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified
for United States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted to further this intention
of the parties.
SECTION 15.4 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 15.5 Successors and Assigns
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 15.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 15.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees and a duly authorized officer of the Sponsor
to one of such counterpart signature pages. All of such counterpart signature
pages shall be read as though one, and they shall have the same force and
effect as though all of the signers had signed a single signature page.
47
<PAGE> 53
IN WITNESS WHEREOF, each of the undersigned has caused these presents
to be executed as of the day and year first above written.
/s/ Keith A. Crane
--------------------------------------
Keith A. Crane, as Regular Trustee
/s/ Lea W. Fastow
--------------------------------------
Lea W. Fastow, as Regular Trustee
/s/ Philip M. Sisneros
--------------------------------------
Phillip M. Sisneros, as Regular Trustee
Chase Manhattan Bank Delaware,
as Delaware Trustee
By: /s/ John J. Cashin
-----------------------------------
John J. Cashin
Senior Trust Officer
The Chase Manhattan Bank, as Property
Trustee
By: /s/ Ronald Halleran
-----------------------------------
Ronald Halleran
Second Vice President
Enron Corp., as Sponsor
By: /s/ William D. Gathmann
-----------------------------------
William D. Gathmann
Vice President, Finance and
Treasurer
48
<PAGE> 54
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
This Trust Preferred Security is a Global Certificate within the meaning
of the Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depositary") or a nominee of the Depositary.
This Trust Preferred Security is exchangeable for Trust Preferred Securities
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Declaration and no transfer
of this Trust Preferred Security (other than a transfer of this Trust Preferred
Security as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Trust Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York), a New York corporation, to the Trust or its agent for registration of
transfer, exchange or payment, and any Trust Preferred Security issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of the Depositary and any payment hereon is made to
Cede & Co. or such other entity as is requested by an authorized representative
of the Depositary, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
A-1-1
<PAGE> 55
TP-1 [ ]
CUSIP NO. _________
Certificate Evidencing Trust Preferred Securities
of
ENRON CAPITAL TRUST I
8.30% Trust Preferred Securities
(liquidation amount $25 per Trust Preferred Security)
ENRON CAPITAL TRUST I, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of __________ preferred securities of the
Trust representing undivided beneficial ownership interests in the assets of
the Trust designated the 8.30% Trust Preferred Securities (liquidation amount
$25 per Trust Preferred Security) (the "Trust Preferred Securities"). The
Trust Preferred Securities are freely transferable on the books and records of
the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The designation,
rights, powers, privileges, restrictions, preferences and other terms and
provisions of the Trust Preferred Securities represented hereby are set forth
in, issued under and shall in all respects be subject to the provisions of the
Amended and Restated Declaration of Trust dated as of November 18, 1996, as the
same may be amended from time to time (the "Declaration"). Capitalized terms
used herein but not defined shall have the meaning given them in the
Declaration. The Holder is entitled to the benefits of the Trust Preferred
Securities Guarantee to the extent provided therein. Each Holder of a Trust
Preferred Security, by acceptance of this Certificate and each Certificate
owner, by acquisition of a beneficial interest in a Certificate, agrees to
treat the Initial Debentures, and any other Affiliate Investment Instruments
that are treated as debt instruments by the relevant Investment Affiliate and
by the Partnership, as indebtedness for United States federal income tax
purposes. The Sponsor will provide a copy of the Declaration, the Trust
Preferred Securities Guarantee and the Limited Partnership Agreement to a
Holder without charge upon written request to the Trust at its principal place
of business.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trust has executed this certificate this ____ day
of November, 1996.
ENRON CAPITAL TRUST I
--------------------------------------
Name: ,
--------------------------
as Regular Trustee
(See reverse for additional terms)
A-1-2
<PAGE> 56
[REVERSE OF SECURITY]
Holders of Trust Preferred Securities shall be entitled to receive
cumulative cash distributions at a rate per annum of 8.30% of the stated
liquidation amount of $25 per Trust Preferred Security. Distributions on the
Trust Preferred Securities shall, from the date of original issue, accrue and
be cumulative and shall be payable quarterly only to the extent that the Trust
has funds available for the payment of such distributions in the Property
Account. Distributions not paid on the scheduled payment date will accumulate
and compound quarterly (to the extent permitted by applicable law) at the rate
of 8.30% per annum. The term "Distributions" as used herein shall mean
ordinary cumulative distributions in respect of each Fiscal Period together
with any such Compounded Distributions. Amounts available to the Trust for
distribution to the holders of the Trust Preferred Securities will be limited
to payments received by the Trust from the Partnership on the Partnership
Preferred Securities or from the Company on the Partnership Guarantee.
Distributions on the Partnership Preferred Securities will be paid only if, as
and when declared in the sole discretion of the Company, as the General Partner
of the Partnership. If and to the extent that the Partnership makes a
distribution on the Partnership Preferred Securities held by the Property
Trustee or the Company makes a payment under the Partnership Guarantee (the
amount of any such partnership distribution, including any compounded
partnership distributions or guarantee payment being a "Payment Amount"), the
Trust shall and the Property Trustee is directed, to the extent funds are
available for that purpose, to make a Pro Rata Distribution of the Payment
Amount to Holders.
The amount of Distributions payable for any period will be computed for
any full quarterly Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full quarterly Distribution
period on the basis of the actual number of days elapsed in a 90-day quarter.
Except as otherwise described herein, distributions on the Trust
Preferred Securities will be cumulative, will accrue from the date of initial
issuance and will be payable quarterly in arrears, on March 31, June 30,
September 30 and December 31 of each year, commencing on December 31, 1996 if,
as and when available for payment by the Property Trustee. If the Trust
Preferred Securities (or, if the Trust is liquidated, the Partnership Preferred
Securities) are in book-entry-only form, Distributions will be payable to the
Holders of record of Trust Preferred Securities as they appear on the books and
records of the Trust on the relevant record dates, which will be one Business
Day prior to the relevant payment dates. If the Trust Preferred Securities
(or, if the Trust is liquidated, the Partnership Preferred Securities) do not
remain in book-entry-only form, the relevant record dates shall be the 15th day
of the month of the relevant payment dates. In the event that any date on
which distributions are payable is not a Business Day, payment of such
Distribution shall be made on the next succeeding day which is a Business Day
(without any interest or other payment in respect of any such delay) except
that, if such Business Day falls in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day (without any
reduction of interest or other payments in respect of such early payment).
Payments of accrued Distributions will be payable to Holders of record of Trust
Preferred Securities as they appear on the books and records of the Trust on
the record date with respect to the payment date for the Trust Preferred
Securities which corresponds to the payment date fixed by the Partnership with
respect to the payment of cumulative distributions on the Partnership Preferred
Securities.
The Trust Preferred Securities shall be redeemable as provided in the
Declaration.
A-1-3
<PAGE> 57
---------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust Preferred
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Trust Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
------------------------
Signature:
-------------------
(Sign exactly as your name appears on the other side of this Trust
Preferred Security Certificate)
A-1-4
<PAGE> 58
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
CS-1 [ ]
Certificate Evidencing Trust Common Securities
of
ENRON CAPITAL TRUST I
8.30% Trust Common Securities
(liquidation amount $25 per Trust Common Security)
ENRON CAPITAL TRUST I, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that Enron Corp., a
Delaware corporation (the "Holder") is the registered owner of ____________
common securities of the Trust representing undivided beneficial ownership
interests in the assets of the Trust designated the 8.30% Trust Common
Securities (liquidation amount $25 per Trust Common Security) (the "Trust
Common Securities"). The designation, rights, powers, privileges,
restrictions, preferences and other terms and provisions of the Trust Common
Securities represented hereby are set forth in, issued under and shall in all
respects be subject to the provisions of the Amended and Restated Declaration
of Trust dated as of November 18, 1996, as the same may be amended from time to
time (the "Declaration"). Capitalized terms used herein but not defined shall
have the meaning given them in the Declaration. The Holder is entitled to the
benefits of the Trust Common Securities Guarantee to the extent provided
therein. Each Holder of a Trust Common Security, by acceptance of this
Certificate, agrees to treat the Initial Debentures, and any other Affiliate
Investment Instruments that are treated as debt instruments by the relevant
Investment Affiliate and by the Partnership, as indebtedness for United States
federal income tax purposes. The Sponsor will provide a copy of the
Declaration, the Trust Common Securities Guarantee and the Limited Partnership
Agreement to a Holder without charge upon written request to the Sponsor at its
principal place of business. THE TRUST COMMON SECURITIES ARE TRANSFERABLE ON
THE BOOKS AND RECORDS OF THE TRUST ONLY IN ACCORDANCE WITH THE TERMS OF THE
DECLARATION.
Upon receipt of this certificate, the Sponsor is bound by the Declaration
and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trust has executed this certificate this _____
day of November, 1996.
ENRON CAPITAL TRUST I
--------------------------------------
-------------------------,
as Regular Trustee
(See reverse for additional terms)
A-2-1
<PAGE> 59
[FORM OF REVERSE OF SECURITY]
Holders of Trust Common Securities shall be entitled to receive
cumulative cash distributions at a rate per annum of 8.30% of the stated
liquidation amount of $25 per Trust Common Security. Distributions on the
Trust Common Securities shall, from the date of original issue, accrue and be
cumulative and shall be payable quarterly only to the extent that the Trust has
funds available for the payment of such distributions in the Property Account.
Distributions not paid on the scheduled payment date will accumulate and
compound quarterly (to the extent permitted by applicable law) at the rate of
8.30% per annum. The term "Distributions" as used herein shall mean ordinary
cumulative distributions in respect of each Fiscal Period together with any
such Compounded Distributions. Amounts available to the Trust for distribution
to the holders of the Trust Common Securities will be limited to payments
received by the Trust from the Partnership on the Partnership Preferred
Securities or from the Company on the Partnership Guarantee. Distributions on
the Partnership Preferred Securities will be paid only if, as and when declared
in the sole discretion of the Company, as the General Partner of the
Partnership. If and to the extent that the Partnership makes a distribution on
the Partnership Preferred Securities held by the Property Trustee or the
Company makes a payment under the Partnership Guarantee (the amount of any such
partnership distribution, including any compounded partnership distributions or
guarantee payment being a "Payment Amount"), the Trust shall and the Property
Trustee is directed, to the extent funds are available for that purpose, to
make a Pro Rata Distribution of the Payment Amount to Holders.
The amount of Distributions payable for any period will be computed for
any full quarterly Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full quarterly Distribution
period on the basis of the actual number of days elapsed in a 90-day quarter.
Except as otherwise described herein, distributions on the Trust Common
Securities will be cumulative, will accrue from the date of initial issuance
and will be payable quarterly in arrears, on March 31, June 30, September 30
and December 31 of each year, commencing on December 31, 1996 if, as and when
available for payment by the Property Trustee. Distributions will be payable
to the Holders of record of Trust Common Securities as they appear on the books
and records of the Trust on the relevant record dates, which will be one
Business Day prior to the relevant payment dates. In the event that any date
on which distributions are payable is not a Business Day, payment of the
Distribution shall be made on the next succeeding day which is a Business Day
(without any interest or other payment in respect of any such delay) except
that, if such Business Day falls in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day (without any
reduction of interest or other payments in respect of such early payment).
Payments of accrued Distributions will be payable to Holders of record of Trust
Common Securities as they appear on the books and records of the Trust on the
record date with respect to the payment date for the Trust Common Securities
which corresponds to the payment date fixed by the Partnership with respect to
the payment of cumulative distributions on the Partnership Preferred
Securities.
The Trust Common Securities shall be redeemable as provided in the
Declaration.
A-2-2
<PAGE> 60
---------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust Common
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Trust Common Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
------------------------
Signature:
-------------------
(Sign exactly as your name appears on the other side of this Trust
Common Security Certificate)
A-2-3
<PAGE> 1
EXHIBIT 4.3
================================================================================
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
ENRON PREFERRED FUNDING, L.P.
DATED AS OF NOVEMBER 21, 1996
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
DEFINED TERMS
Section 1.1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
CONTINUATION OF THE PARTNERSHIP;
ADMISSION OF PARTNERSHIP PREFERRED SECURITIES HOLDERS;
WITHDRAWAL OF INITIAL LIMITED PARTNER
Section 2.1 CONTINUATION OF THE PARTNERSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.2 NAME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.3 PURPOSES OF THE PARTNERSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.4 TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.5 REGISTERED AGENT AND OFFICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.6 PRINCIPAL PLACE OF ACTIVITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.7 NAME AND ADDRESS OF GENERAL PARTNER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.8 QUALIFICATION TO CONDUCT ACTIVITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.9 ADMISSION OF HOLDERS OF PARTNERSHIP
PREFERRED SECURITIES; WITHDRAWAL OF INITIAL LIMITED PARTNER . . . . . . . . . . . . . . . . . 7
ARTICLE III
CAPITAL CONTRIBUTIONS; REPRESENTATION OF
PARTNERSHIP PREFERRED SECURITY HOLDER'S INTEREST;
CAPITAL ACCOUNTS
Section 3.1 CAPITAL CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.2 PARTNERSHIP PREFERRED
SECURITY HOLDER'S INTEREST
REPRESENTED BY PARTNERSHIP PREFERRED SECURITIES . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.3 CAPITAL ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.4 INTEREST ON CAPITAL CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.5 WITHDRAWAL AND RETURN OF CAPITAL CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
ALLOCATIONS
Section 4.1 PROFITS AND LOSSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.2 SPECIAL ALLOCATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4.3 WITHHOLDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE V
DISTRIBUTIONS
Section 5.1 DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.2 LIMITATIONS ON DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE VI
ISSUANCE OF PARTNERSHIP PREFERRED SECURITIES
Section 6.1 GENERAL PROVISIONS REGARDING
PARTNERSHIP PREFERRED SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 6.2 PARTNERSHIP PREFERRED SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE VII
PARTNERSHIP INVESTMENTS
Section 7.1 INITIAL AFFILIATE INVESTMENT INSTRUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 7.2 REINVESTMENT OF PAYMENTS RECEIVED BY THE PARTNERSHIP . . . . . . . . . . . . . . . . . . . 18
Section 7.3 ASSUMPTION OF OBLIGATIONS AND RELEASE OF INVESTMENT AFFILIATE . . . . . . . . . . . . . . . 19
ARTICLE VIII
BOOKS OF ACCOUNT, RECORDS AND REPORTS
Section 8.1 BOOKS AND RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 8.2 ACCOUNTING METHOD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 8.3 ANNUAL AUDIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE IX
PAYMENT OF EXPENSES
Section 9.1 PAYMENT OF TRUST EXPENSES AND PARTNERSHIP TAXES. . . . . . . . . . . . . . . . . . . . . . 20
Section 9.2 PAYMENT OF OTHER PARTNERSHIP EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE X
POWERS, RIGHTS AND DUTIES
OF THE LIMITED PARTNERS
Section 10.1 LIMITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 10.2 LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 10.3 PRIORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE XI
POWERS, RIGHTS AND DUTIES
OF THE GENERAL PARTNER
Section 11.1 AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 11.2 POWERS AND DUTIES OF GENERAL PARTNER . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 11.3 OBLIGATIONS AND EXPENSES PAYABLE BY GENERAL PARTNER . . . . . . . . . . . . . . . . . . . . 22
Section 11.4 LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
Section 11.5 OUTSIDE ACTIVITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 11.6 LIMITS ON GENERAL PARTNER'S POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 11.7 EXCULPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 11.8 FIDUCIARY DUTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 11.9 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 11.10 TAX MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 11.11 CONSOLIDATION, MERGER OR SALE OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE XII
TRANSFERS OF INTERESTS BY PARTNERS
Section 12.1 TRANSFER OF INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 12.2 TRANSFER OF L.P. CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 12.3 DEFINITIVE L.P. CERTIFICATES;
PERSONS DEEMED PARTNERSHIP PREFERRED SECURITY HOLDERS . . . . . . . . . . . . . . . . . . . 27
Section 12.4 BOOK-ENTRY PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 12.5 REGISTRAR, TRANSFER AGENT AND PAYING AGENT . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE XIII
WITHDRAWAL, DISSOLUTION;
LIQUIDATION AND DISTRIBUTION OF ASSETS
Section 13.1 WITHDRAWAL OF PARTNERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 13.2 DISSOLUTION OF THE PARTNERSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 13.3 LIQUIDATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 13.4 DISTRIBUTION IN LIQUIDATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 13.5 RIGHTS OF LIMITED PARTNERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 13.6 TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE XIV
AMENDMENTS AND MEETINGS
Section 14.1 AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 14.2 AMENDMENT OF CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 14.3 MEETINGS OF PARTNERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE XV
MISCELLANEOUS
Section 15.1 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 15.2 POWER OF ATTORNEY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 15.3 ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 15.4 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 15.5 EFFECT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 15.6 PRONOUNS AND NUMBER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 15.7 CAPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 15.8 PARTIAL ENFORCEABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 15.9 COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 15.10 WAIVER OF PARTITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
Section 15.11 REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Schedule 1 LIST OF PARTNERS
Annex A FORM OF L.P. CERTIFICATE
Exhibit A FORM OF INDENTURE OF ENRON CORP.
Exhibit B FORM OF INDENTURE FOR SUBSIDIARIES
</TABLE>
iv
<PAGE> 6
AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP
OF
ENRON PREFERRED FUNDING, L.P.
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of Enron
Preferred Funding, L.P., a Delaware limited partnership (the "Partnership"),
dated as of November 21, 1996, among Enron Corp., a Delaware corporation (the
"Company"), as the general partner, Organizational Partner, Inc., a Delaware
corporation, as the initial limited partner (the "Initial Limited Partner") and
such other Persons (as defined herein) who become Limited Partners (as defined
herein) as provided herein.
WHEREAS, the Company and the Initial Limited Partner entered into an
Agreement of Limited Partnership, dated as of October 25, 1996, (the "Original
Partnership Agreement"), and the Partners (as defined herein) desire to
continue the Partnership under the Act (as defined herein) and to amend and
restate the Original Partnership Agreement in its entirety;
WHEREAS, the Certificate of Limited Partnership of the Partnership was
filed with the Office of the Secretary of State of the State of Delaware on
October 28, 1996;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree to amend
and restate the Original Partnership Agreement as follows:
ARTICLE I
DEFINED TERMS
Section 1.1 DEFINITIONS. Unless the context otherwise requires,
the terms defined in this Article I shall, for the purposes of this Agreement,
have the meanings herein specified. Terms used in this Agreement and not
otherwise defined herein shall have the meanings ascribed to such terms in the
Declaration.
"Act" means the Delaware Revised Uniform Limited Partnership Act, Del.
Code Ann. tit. 6, Section 17-101 et seq., as amended from time to time.
"Affiliate" has the meaning set forth in Section 1.1 of the
Declaration.
"Affiliate Investment Instruments" has the meaning set forth in
Section 7.1 of this Agreement.
"Agreement" means this Amended and Restated Agreement of Limited
Partnership, as it may be amended or supplemented from time to time.
"Assuming Investment Affiliate" has the meaning set forth in Section
7.3 of this Agreement.
"Beneficiaries" has the meaning set forth in Section 11.3 of this
Agreement.
"Book-Entry Interest" means a beneficial interest in the L.P.
Certificates, ownership and transfers of which shall be maintained and made
through book-entries of a Clearing Agency as set forth in Section 12.4 of this
Agreement.
<PAGE> 7
"Business Day" means a day other than a day on which banking
institutions in The City of New York are authorized or required by law to
close.
"Capital Account" has the meaning set forth in Section 3.3 of this
Agreement.
"Certificate" means the Certificate of Limited Partnership of the
Partnership filed with the Secretary of State of the State of Delaware on
October 28, 1996, as it may be amended and restated from time to time.
"Change in 1940 Act Law" has the meaning set forth in Section 1.1 of
the Declaration.
"Closing Date" has the meaning set forth in Section 1.1 of the
Declaration.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation.
"Company" means Enron Corp., a Delaware corporation.
"Compounded Distributions" has the meaning set forth in Section 6.2 of
this Agreement.
"Declaration" means the Amended and Restated Declaration of Trust by
and among the Company, as Sponsor, the Property Trustee, the Delaware Trustee,
and the Regular Trustees, dated as of November 18, 1996.
"Definitive L.P. Certificates" has the meaning set forth in Section
12.4(a) of this Agreement.
"Delaware Trustee" has the meaning set forth in Section 6.2 of the
Declaration.
"Distribution Payment Date" has the meaning set forth in Section
6.2(b)(ii) of this Agreement.
"Distributions" means the right to receive the amount of the
cumulative cash distributions payable by the Partnership with respect to the
Interests represented by the Partnership Preferred Securities, which amounts
will accrue on the $25 liquidation preference of each Partnership Preferred
Security from the Closing Date and are payable quarterly in arrears in
accordance with Sections 5.1 and 6.2(b) of this Agreement.
"DTC" means the Depository Trust Company, the initial Clearing Agency.
"Eligible Debt Securities" means cash or book-entry securities,
negotiable instruments, or other securities of entities not affiliated with the
Company represented by instruments in registered form which evidence any of the
following: (a) any security issued or guaranteed as to principal or interest
by the United States, or by a person controlled or supervised by and acting as
an instrumentality of the Government of the United States pursuant to authority
granted by the Congress of the United States, or any certificate of deposit for
any of the foregoing; (b) commercial paper issued pursuant to Section 3(a)(3)
of the Securities Act of 1933 (the "Securities Act") and having, at the time of
the investment or contractual commitment to invest therein, a rating from each
of S&P and Moody's in the highest rating category granted by such rating agency
and having a maturity not in excess of nine months; (c) demand deposits, time
deposits and certificates of deposit which are fully insured by the FDIC; (d)
repurchase obligations with respect to any security that is a direct obligation
of, or fully guaranteed by, the Government of the United States of America or
any agency or instrumentality thereof, the obligations of which are backed by
the full faith and credit of the United States of America, in either case
entered into with a depository institution or trust company which is an
Eligible Institution and the deposits of which are insured by the FDIC; and (e)
any other security which is identified as a permitted investment of a finance
subsidiary pursuant to Rule 3a-5 under the 1940 Act at the time it is acquired
by the Partnership.
"Eligible Institution" means a depository institution organized under
the laws of the United States of America or any one of the states thereof or
the District of Columbia (or any domestic branch of a foreign bank),
2
<PAGE> 8
(1)(i) which has either (A) a long-term unsecured debt rating of AA or better
by S&P and Aa or better by Moody's or (B) a short-term unsecured debt rating or
a certificate of deposit rating of A-1+ or better by S&P and P-1 or better by
Moody's and (ii) whose deposits are insured by the FDIC or (2)(i) the parent of
which has a long-term or short-term unsecured debt rating which signifies
investment grade and (ii) whose deposits are insured by the FDIC.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"Fiscal Period" means each calendar quarter.
"Fiscal Year" means (i) the period commencing upon the formation of
the Partnership and ending on December 31, 1996, and (ii) any subsequent
calendar year.
"General Partner" means the Company in its capacity as the general
partner of the Partnership, its permitted successors, or any successor general
partner in the Partnership admitted as such pursuant to the terms of this
Agreement.
"General Partner Capital Contribution" means the contribution by the
General Partner to the Partnership made contemporaneous with the issuance of
the Partnership Preferred Securities.
"General Partner Interest" means the Interest of the General Partner
in the Partnership.
"Holder" or "Partnership Preferred Security Holder" means a Limited
Partner in whose name an L.P. Certificate representing Partnership Preferred
Securities is registered.
"Indentures" means the Indentures between the Company or certain of
its subsidiaries, as the case may be, and The Chase Manhattan Bank, as
Indenture Trustee, dated as of November 21, 1996, forms of which are attached
hereto as Exhibits A and B, respectively.
"Independent Financial Adviser" shall mean (i) Merrill Lynch, Pierce,
Fenner & Smith Incorporated or (ii) such other nationally recognized investment
banking firm which shall be designated by the Company and which firm does not
(and whose directors, officers, employees and affiliates do not) have a direct
or indirect material equity interest in the Company or any of its subsidiaries
or (iii) another entity which is an investment banking, accounting or financial
services firm selected by the Company and approved by the Holders of a Majority
in Liquidation Preference of Partnership Preferred Securities.
"Initial Affiliate Debentures" has the meaning set forth in Section
7.1(b) of this Agreement.
"Initial Company Debenture" has the meaning set forth in Section
7.1(b) of this Agreement.
"Initial Debentures" means collectively, the Initial Company
Debentures and the Initial Affiliate Debentures.
"Initial Limited Partner" means Organizational Partner, Inc., a
Delaware corporation.
"Initial Partnership Proceeds" means the aggregate proceeds received
by the Partnership from the sale of the Partnership Preferred Securities and
the General Partner Capital Contribution.
"Interest" means the entire ownership interest of a Partner in the
Partnership at any particular time, including, without limitation, its interest
in the capital, profits, and losses of, and distributions from, the
Partnership.
3
<PAGE> 9
"Investment Affiliate" means the Company or any corporation,
partnership, limited liability company or other entity (other than the
Partnership or the Trust) that is controlled by the Company and is not an
investment company by reason of Section 3(a) or 3(b) of the 1940 Act.
"Investment Event of Default" means an event of default under any
Affiliate Investment Instrument that is a debt instrument or the breach by an
Investment Affiliate of its obligations under any Affiliate Investment
Instrument that is an equity instrument.
"Investment Guarantee" has the meaning specified in Section 1.1 of the
Declaration.
"Investment Offer" has the meaning specified in Section 7.2(b) of this
Agreement.
"Limited Partner" means any Person who is admitted to the Partnership
as a limited partner pursuant to the terms of this Agreement, in such Person's
capacity as a limited partner of the Partnership.
"Liquidator" has the meaning specified in Section 13.3 of this
Agreement.
"L.P. Certificate" means a certificate substantially in the form
attached hereto as Annex A, evidencing the Partnership Preferred Securities
held by a Limited Partner.
"Majority in Liquidation Preference" means Holder(s) of Partnership
Preferred Securities who are the record owners of Partnership Preferred
Securities whose aggregate liquidation preferences represent more than 50% of
the aggregate liquidation preference of all Partnership Preferred Securities
then outstanding.
"Moody's" means Moody's Investors Service, Inc. or any successor
thereto.
"Net Income" and "Net Loss", respectively, for any Fiscal Period mean
the income and loss, respectively, of the Partnership for such Fiscal Period as
determined in accordance with the method of accounting followed by the
Partnership for United States federal income tax purposes, including, for all
purposes, the net income, if any, from the Affiliate Investment Instruments,
Eligible Debt Securities and any income exempt from tax and any noncapital,
nondeductible expenditures of the Partnership which are described in the Code.
"1940 Act" has the meaning set forth in Section 1.1 of the
Declaration.
"Original Partnership Agreement" has the meaning set forth in the
recitals to this Agreement.
"Partners" means the General Partner and the Limited Partners,
collectively, where no distinction is required by the context in which the term
is used.
"Partnership Covered Person" means any Partner, any Affiliate of a
Partner or any officers, directors, shareholders, partners, members, employees,
representatives or agents of a Partner of its respective Affiliates, or any
employee or agent of the Partnership or its Affiliates or any Special
Representative.
"Partnership Enforcement Event" has the meaning set forth in Section
6.2(h)(i) of this Agreement.
"Partnership Guarantee" means the Partnership Guarantee Agreement
dated as of November 21, 1996 by the Company in favor of the Partnership
Preferred Security Holders with respect to the Partnership Preferred
Securities, as amended or supplemented from time to time.
"Partnership Indemnified Person" means the General Partner, any
Special Representative, any Affiliate of the General Partner or any Special
Representative or any officers, directors, shareholders, members, partners,
employees, representatives or agents of the General Partner or any Special
Representative, or any of their respective Affiliates, or any employee or agent
of the Partnership or its Affiliates.
4
<PAGE> 10
"Partnership Investment Company Event" means that the General Partner
shall have requested and received an opinion of nationally recognized
independent legal counsel experienced in such matters to the effect that as a
result of the occurrence on or after the date hereof of a Change in 1940 Act
Law, the Partnership is or will be considered an "investment company" which is
required to be registered under the 1940 Act.
"Partnership Liquidation Distribution" has the meaning set forth in
Section 6.2(g) of this Agreement.
"Partnership Preferred Securities" represent the Interests of Limited
Partners and have the preference and designation set forth in Section 6.2(a) of
this Agreement.
"Partnership Preferred Security Owner" means, with respect to a
Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry
Interest as reflected on the books of DTC, or on the books of a Person
maintaining an account with DTC (directly as a participant or as an indirect
participant, in each case in accordance with the rules of DTC or such
participant).
"Partnership Special Event" means either a Partnership Tax Event or a
Partnership Investment Company Event.
"Partnership Successor Securities" has the meaning set forth in
Section 11.11 of this Agreement.
"Partnership Tax Event" means that the General Partner shall have
requested and received an opinion of nationally recognized independent tax
counsel experienced in such matters to the effect that there has been a Tax
Action that results in there being more than an insubstantial risk that (i) the
Partnership is, or will be, subject to United States federal income tax with
respect to income accrued or received on the Affiliate Investment Instruments
or the Eligible Debt Securities, (ii) the Partnership is, or will be, subject
to more than a de minimis amount of other taxes, duties or other governmental
charges or (iii) interest payable by an Investment Affiliate with respect to
any Initial Debenture issued by such Investment Affiliate to the Partnership is
not, or will not be, deductible by such Investment Affiliate for United States
federal income tax purposes.
"Paying Agent" shall have the meaning set forth in Section 12.5 of
this Agreement.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever
nature.
"Power of Attorney" means the Power of Attorney granted pursuant to
Section 15.2 of this Agreement.
"Property Trustee" has the meaning set forth in Section 1.1 of the
Declaration.
"Purchase Agreement" means the Purchase Agreement dated November 18,
1996 among the Company, the Trust, the Partnership, Merrill Lynch & Co. and
Merrill, Lynch, Pierce, Fenner & Smith Incorporated as representatives of the
other underwriters named in Schedule A thereto.
"Record Date" means (i) as long as the Trust Preferred Securities
remain (or, in the event that the Trust is liquidated in connection with a
Trust Special Event, as long as the Partnership Preferred Securities remain) in
book- entry only form, one Business Day prior to the relevant payment dates and
(ii) in the event that the Trust Preferred Securities (or in the event that the
Trust is liquidated in connection with a Trust Special Event, the Partnership
Preferred Securities) shall not continue to remain in book-entry only form, the
15th day of the month of the relevant payment date.
"Redemption Notice" has the meaning set forth in Section 6.2(e) of
this Agreement.
"Redemption Price" has the meaning set forth in Section 6.2(c) of this
Agreement.
5
<PAGE> 11
"Registrar" has the meaning set forth in Section 12.5 of this
Agreement.
"Regular Trustees" has the meaning set forth in Section 1.1 of the
Declaration.
"Reinvestment Criteria" has the meaning specified in Section 7.2(d) of
this Agreement.
"Released Investment Affiliate" has the meaning set forth in Section
7.3 of this Agreement.
"S&P" means Standard & Poor's Ratings Services or any successor
thereof.
"Special Representative" has the meaning set forth in Section
6.2(h)(i) of this Agreement.
"Tax Action" has the meaning set forth in Section 1.1 of the
Declaration.
"Tax Matters Partner" means the General Partner designated as such in
Section 11.10 of this Agreement.
"10% in Liquidation Preference" means Holders of the Partnership
Preferred Securities voting together as a single class representing 10% of the
aggregate liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of the Partnership
Preferred Securities.
"Treasury Regulations" has the meaning set forth in Section 1.1 of the
Declaration.
"Trust" means Enron Capital Trust I, a Delaware business trust, formed
under the Declaration.
"Trust Common Securities" has the meaning specified in Section 8.1 of
the Declaration.
"Trust Common Securities Guarantee" means the Trust Common Securities
Guarantee Agreement dated as of November 21, 1996, entered into by the Company,
as Guarantor, for the benefit of the holders of the Trust Common Securities.
"Trust Preferred Securities" has the meaning specified in Section 8.1
of the Declaration.
"Trust Preferred Securities Guarantee" means the Trust Preferred
Securities Guarantee Agreement dated as of November 21, 1996, entered into by
the Company, as Guarantor, for the benefit of the holders of the Trust
Preferred Securities.
ARTICLE II
CONTINUATION OF THE PARTNERSHIP;
ADMISSION OF PARTNERSHIP PREFERRED SECURITIES HOLDERS;
WITHDRAWAL OF INITIAL LIMITED PARTNER
Section 2.1 CONTINUATION OF THE PARTNERSHIP. The parties hereto
agree to continue the Partnership in accordance with the terms of this
Agreement. The General Partner, for itself and as agent for the Limited
Partners, shall make every reasonable effort to assure that all certificates
and documents are properly executed and shall accomplish all filing, recording,
publishing and other acts necessary or appropriate for compliance with all the
requirements for the continuation of the Partnership as a limited partnership
under the Act and under all other laws of the State of Delaware or such other
jurisdictions in which the General Partner determines that the Partnership may
conduct activities. The rights and duties of the Partners shall be as provided
herein and, subject to the terms hereof, under the Act.
6
<PAGE> 12
Section 2.2 NAME. The name of the Partnership is "Enron
Preferred Funding, L.P.", as such name may be modified from time to time by the
General Partner following written notice to the Limited Partners.
Section 2.3 PURPOSES OF THE PARTNERSHIP. The purposes of the
Partnership are (a) to issue limited partnership interests in the Partnership
in the form of Partnership Preferred Securities, (b) to receive the General
Partner Capital Contribution, (c) to use substantially all of the Initial
Partnership Proceeds to purchase, as an investment, the Initial Debentures, (d)
to invest, at all times, an amount equal to at least 1% of the Initial
Partnership Proceeds in Eligible Debt Securities, (e) to receive interest and
other payments on the Affiliate Investment Instruments and the Eligible Debt
Securities held by the Partnership from time to time, (f) to make Distributions
on the Partnership Preferred Securities and distributions on the General
Partner Interest if, as and when declared by the General Partner in its sole
discretion, (g) subject to the restrictions and conditions contained in this
Agreement, to make additional investments in Affiliate Investment Instruments
and Eligible Debt Securities and to dispose of any such investments and (h)
except as otherwise limited herein, to enter into, make and perform all
contracts and other undertakings, and engage in those activities and
transactions as the General Partner may reasonably deem necessary or advisable
for the carrying out of the foregoing purposes of the Partnership. The
Partnership may not engage in any other activities or operations except as
contemplated by the preceding sentence.
Section 2.4 TERM. The term of the Partnership shall commence
upon the filing of the Certificate in the Office of the Secretary of State of
the State of Delaware and shall continue until the Partnership is dissolved in
accordance with the provisions of this Agreement.
Section 2.5 REGISTERED AGENT AND OFFICE. The Partnership's
registered agent and office in Delaware shall be Corporation Trust Company,
1209 Orange Street, Wilmington, New Castle County, Delaware 19801. At any
time, the General Partner may designate another registered agent and/or
registered office.
Section 2.6 PRINCIPAL PLACE OF ACTIVITY. The principal place of
activity of the Partnership shall be c/o Enron Corp., 1400 Smith Street,
Houston, Texas 77002. Upon ten days' written notice to the Partners, the
General Partner may change the location of the Partnership's principal place of
activity, provided that such change has no material adverse effect upon any
Partner.
Section 2.7 NAME AND ADDRESS OF GENERAL PARTNER. The name and
address of the General Partner are as follows:
Enron Corp.
1400 Smith Street
Houston, TX 77002
Attention: Treasury Department
The General Partner may change its name or address from time to time, in which
event the General Partner shall promptly notify the Limited Partners of any
such change.
Section 2.8 QUALIFICATION TO CONDUCT ACTIVITIES. The General
Partner shall cause the Partnership to become qualified, formed or registered
under the applicable qualification, fictitious name or similar laws of any
jurisdiction in which the Partnership conducts activities.
Section 2.9 ADMISSION OF HOLDERS OF PARTNERSHIP PREFERRED
SECURITIES; WITHDRAWAL OF INITIAL LIMITED PARTNER.
(a) Without execution of this Agreement, upon the receipt of an
L.P. Certificate by a Person, whether by purchase, gift, devise or other valid
transfer, which receipt shall be deemed to constitute a request by such Person
that the books and records of the Partnership reflect such Person's admission
as a Limited Partner, such Person shall be admitted to the Partnership as a
Limited Partner and shall become bound by this Agreement.
7
<PAGE> 13
(b) Following the first admission of a Partnership Preferred
Security Holder to the Partnership as a Limited Partner, the Initial Limited
Partner shall withdraw from the Partnership and shall receive the return of its
capital contribution, if any, without interest or deduction.
(c) The name and mailing address of each Partner and the amount
contributed by such Partner to the capital of the Partnership shall be listed
on the books and records of the Partnership. The General Partner shall be
required to update the books and records from time to time as necessary to
accurately reflect such information.
ARTICLE III
CAPITAL CONTRIBUTIONS; REPRESENTATION OF
PARTNERSHIP PREFERRED SECURITY HOLDER'S INTEREST;
CAPITAL ACCOUNTS
Section 3.1 CAPITAL CONTRIBUTIONS.
(a) Contemporaneous with the issuance of the Partnership Preferred
Securities, the General Partner shall make the General Partner Capital
Contribution. The General Partner shall, from time to time, make such
additional capital contributions as are necessary to maintain at all times a
positive Capital Account balance equal to at least one percent (1%) of the
aggregate positive Capital Account balances of all Partners at the end of such
period.
(b) On the Closing Date, the Trust shall, in exchange for a
definitive L.P. Certificate, contribute to the capital of the Partnership on
behalf of the Trust an amount in cash equal to the gross proceeds from the sale
of the Trust Preferred Securities and the Trust Common Securities (such amount
being a capital contribution to the Partnership). On such date, immediately
following the withdrawal of the Initial Limited Partner, the Trust shall be the
sole Limited Partner.
(c) No Limited Partner shall at any time be required to make any
additional capital contributions to the Partnership, except as may be required
by law.
Section 3.2 PARTNERSHIP PREFERRED SECURITY HOLDER'S INTEREST
REPRESENTED BY PARTNERSHIP PREFERRED SECURITIES. A Partnership Preferred
Security Holder's Interest shall be represented by the Partnership Preferred
Securities held by or on behalf of such Partner. Each Partnership Preferred
Security Holder's respective ownership of Partnership Preferred Securities
shall be set forth on the books and records of the Partnership. Each Partner
hereby agrees that its Interest in the Partnership shall for all purposes be
personal property. No Partner shall have an interest in specific Partnership
property.
Section 3.3 CAPITAL ACCOUNTS.
(a) Establishment and Maintenance of Capital Accounts. The
Partnership shall establish and maintain a separate account (the "Capital
Account") for each Partner. The initial balance of the Capital Account for
each Partner shall be the amount as set out opposite the name of each of the
Partners on Schedule 1 attached hereto. The Capital Account of each Partner
shall be increased by (i) the dollar amount of any additional contributions
made by such Partner and (ii) allocations to such Partner of income and gain
(including income exempt from tax). The Capital Account of each Partner shall
be decreased by (i) the dollar amount of any distributions made to such
Partner, and (ii) allocations to such Partner of loss and deduction (including
noncapital, nondeductible expenditures not deductible in computing the
Partnership's income or loss for United States federal income tax purposes).
(b) Compliance with Regulations. Notwithstanding any other
provision of this Agreement to the contrary, the provisions of Section 3.3(a)
hereof regarding the maintenance of Capital Accounts shall be construed so as
to comply with the Treasury Regulations promulgated under section 704 of the
Code. The General Partner,
8
<PAGE> 14
in its sole discretion, is authorized to modify such provisions to the minimum
extent necessary to comply with such Treasury Regulations.
Section 3.4 INTEREST ON CAPITAL CONTRIBUTIONS. No Partner shall
be entitled to interest on or with respect to any capital contribution to the
Partnership.
Section 3.5 WITHDRAWAL AND RETURN OF CAPITAL CONTRIBUTIONS.
Subject to Section 2.9(b) hereof, no Partner shall be entitled to withdraw any
part of such Partner's capital contribution to the Partnership. No Partner
shall be entitled to receive any distributions from the Partnership, except as
provided in this Agreement.
ARTICLE IV
ALLOCATIONS
Section 4.1 PROFITS AND LOSSES. After giving effect to the
special allocation provisions set forth in Section 4.2, which special
allocations shall take precedence over any allocations made pursuant to this
Section 4.1,
(a) the Partnership's Net Income for each Fiscal Period of the
Partnership shall be allocated as follows:
(i) First, to each Holder of a Partnership Preferred
Security in an amount equal to the excess, if any, of (x) the amount
of Net Losses, if any, allocated to each such Holder from the date of
issuance of the Partnership Preferred Security through and including
the close of such Fiscal Period pursuant to Section 4.1(b)(ii) below
over (y) the amount of Net Income, if any, allocated to each such
Holder pursuant to this Section 4.1(a)(i) in all prior Fiscal Periods.
(ii) Second, to the Holders of the Partnership Preferred
Securities, an amount of Net Income equal to the excess of (x) the
Distributions accrued on the Partnership Preferred Securities from the
date of their issuance through and including the last day of such
Fiscal Period, including any Compounded Distributions payable with
respect thereto, over (y) the amount of Net Income allocated to the
Holders of the Partnership Preferred Securities pursuant to this
Section 4.1(a)(ii) in all prior Fiscal Periods. Amounts allocated to
all Partnership Preferred Security Holders shall be allocated among
such Holders in proportion to the number of Partnership Preferred
Securities held by such Holders.
(iii) Any remaining Net Income shall be allocated to the
General Partner.
(b) The Partnership's Net Loss for any Fiscal Period shall be
allocated as follows:
(i) First, to the General Partner until the balance of
the General Partner's Capital Account is reduced to zero, provided,
however, that the aggregate amount of Net Losses allocated to the
General Partner pursuant to this Section 4.1(b)(i) shall not exceed
the sum of 14% of the total capital contributions of all Partners plus
the aggregate Net Income allocated to the General Partner pursuant to
this Section 4.1.
(ii) Second, among the Holders in proportion to their
respective aggregate Capital Account balances, until the Capital
Account balances of such Holders are reduced to zero.
(iii) Any remaining Net Loss shall be allocated to the
General Partner.
(c) Daily Determination. For purposes of determining the profits,
losses or any other items allocable to any period, profits, losses and any such
other items shall be determined on a daily basis, unless the General
9
<PAGE> 15
Partner determines that another method is permissible under Section 704 of the
Code and the Treasury Regulations promulgated thereunder. Unless otherwise
specified, such profits, losses or other items shall be determined for each
Fiscal Period.
Section 4.2 SPECIAL ALLOCATION.
(a) All expenditures that are (i) incurred by, or on behalf of,
the Partnership and (ii) paid, or otherwise reimbursed, by the General Partner
out of its own funds shall be allocated entirely to the General Partner.
(b) In the event any Partner unexpectedly receives any
adjustments, allocations or distributions described in Treasury Regulation
Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of the Partnership's Net
Income shall be specially allocated to such Partner in a manner sufficient to
eliminate the deficit, if any, in the balance of the Capital Account of such
Partner as quickly as possible. The foregoing is intended to be a "qualified
income offset" provision as described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d) and shall be interpreted and applied in all respects in
accordance with such Treasury Regulation.
(c) Section 704 Compliance. While this Agreement does not
specifically provide for certain provisions required by Treasury Regulation
Sections 1.704-1(b) and 1.704-2 because those provisions apply to transactions
that are not expected to occur as regards the Partnership, the Partners intend
that the allocations under Section 4.1 conform to Treasury Regulations Sections
1.704-1(b) and 1.704-2 (including, without limitation, the minimum gain
chargeback, chargeback of partner nonrecourse debt minimum gain and partner
nonrecourse debt provisions of such Treasury Regulations), and, to the extent
necessary due to the occurrence of unexpected events, the General Partner shall
make such changes in the allocations under Section 4.1 as it believes are
reasonably necessary to meet the requirements of such Treasury Regulations.
(d) Adjustment of Allocations. If the allocations set forth in
this Article IV are adjusted by the Internal Revenue Service and the Tax
Matters Partner agrees to such adjustments, such allocations shall be amended
to the minimum extent necessary to conform with such adjustments.
(e) Additional Allocations. Notwithstanding the foregoing, if,
upon the final dissolution and termination of the Partnership and after taking
into account all allocations of Net Income and Net Losses (and other tax items)
under this Article IV, the distributions to be made in accordance with the
positive Capital Account balances would result in a distribution that would be
different from a distribution under Article XIII, then gross items of income
and gain (and other tax items) for the taxable year of the final dissolution
and termination (and, to the extent permitted under section 761(c) of the Code,
gross items of income and gain, and other tax items, for the immediately
preceding taxable year) shall be allocated to the Partners to increase or
decrease their respective Capital Account balances so that the final
distribution will occur in the same manner as a distribution under Section
13.4.
(f) General Partner Allocations. Notwithstanding any provision of
this Agreement to the contrary, the interest of the General Partner in each
item of Partnership income, gain, loss, deduction, or credit shall, at all
times during the existence of the Partnership, be equal to at least (A) at any
time that the aggregate capital contributions to the Partnership are equal to
or less than $50,000,000, one percent (1%) of each such item and (B) at any
time that the aggregate capital contributions to the Partnership are greater
than $50,000,000, at least a percentage equal to the product of (i) one percent
(1%) and (ii) a fraction (not exceeding 1 and not less than 0.2), the numerator
of which is $50,000,000 and the denominator of which is the lesser of (x) the
aggregate Capital Account balances of the Capital Accounts of all Partners at
such time and (y) the aggregate capital contributions to the Partnership of all
Partners at such time.
Section 4.3 WITHHOLDING. The Partnership shall comply with
withholding requirements under federal, state and local law and shall remit
amounts withheld to and file required forms with applicable jurisdictions. To
the extent that the Partnership is required to withhold and pay over any
amounts to any authority with respect to distributions or allocations to any
Partner, the amount withheld shall be deemed to be a distribution
10
<PAGE> 16
in the amount of the withholding to the Partner. In the event of any claimed
over-withholding, Partners shall be limited to an action against the applicable
jurisdiction. If the amount withheld was not withheld from actual
distributions, the Partnership may reduce subsequent distributions by the
amount of such withholding. Each Partner agrees to furnish the Partnership
with any representations and forms as shall reasonably be requested by the
Partnership to assist it in determining the extent of, and in fulfilling, its
withholding obligations.
ARTICLE V
DISTRIBUTIONS
Section 5.1 DISTRIBUTIONS. Limited Partners shall receive
periodic Distributions and Compounded Distributions, if any, redemption
payments and liquidation distributions in accordance with the terms of the
Partnership Preferred Securities set forth in Article VI. The General Partner
shall in its sole discretion determine whether and when Distributions shall be
payable; provided, however, that if the General Partner shall determine a
Distribution will not be paid on a scheduled Distribution Payment Date, the
General Partner shall give notice of its determination not to pay such
Distribution to Limited Partners of record as of the Record Date for the
payment of such Distribution; provided, further, however, that the General
Partner shall not declare distributions, and no distributions shall be payable
by the Partnership to the General Partner in respect of its General Partner
Interest unless all accumulated and unpaid Distributions, including any
Compounded Distributions, have been paid in full for all prior Fiscal Periods.
Subject to the immediately preceding sentence, to the extent that the aggregate
payments of interest (or dividends) received by the Partnership in respect of
Affiliate Investment Instruments and Eligible Debt Securities for each Fiscal
Period exceed the amount of Distributions, including any Compounded
Distributions, paid on the Partnership Preferred Securities for such Fiscal
Period, the General Partner, in its sole discretion may declare and distribute
such excess funds to the General Partner in respect of its General Partner
Interest.
Section 5.2 LIMITATIONS ON DISTRIBUTIONS. The Partnership shall
not make a Distribution to any Partner on account of such Partner's Interest if
such Distribution would violate Section 17-607 of the Act or other applicable
law.
ARTICLE VI
ISSUANCE OF PARTNERSHIP PREFERRED SECURITIES
Section 6.1 GENERAL PROVISIONS REGARDING PARTNERSHIP PREFERRED
SECURITIES.
(a) There is hereby authorized for issuance and sale Partnership
Preferred Securities having an aggregate liquidation preference not greater
than $206,186,000 and having the designation, annual distribution rate,
liquidation preference, redemption terms, and other powers, preferences and
special rights and limitations set forth in this Article VI.
(b) The payment of Distributions (including payments of
distributions by the Partnership in liquidation or in redemption in respect of
Partnership Preferred Securities) shall be guaranteed by the Company pursuant
to and to the extent set forth in the Partnership Guarantee. The Partnership
Preferred Security Holders hereby authorize the General Partner to hold the
Guarantee on behalf of the Partnership Preferred Security Holders. In the
event of an appointment of a Special Representative pursuant to Section 6.2(i),
among other things, to enforce the Partnership Guarantee, the Special
Representative may take possession of the Partnership Guarantee for such
purpose. If no Special Representative has been appointed to enforce the
Partnership Guarantee, the General Partner has the right to enforce the
Partnership Guarantee on behalf of the Partnership Preferred Security Holders.
The Partnership Preferred Security Holders, by acceptance of such Partnership
Preferred Securities, acknowledge and agree to the subordination provisions in,
and other terms of, the Partnership Guarantee.
11
<PAGE> 17
(c) The Partnership may not issue any interests in the Partnership
other than the Partnership Preferred Securities and the General Partner
Interest, provided that the Partnership may accept consideration for additional
capital contributions from the General Partner with respect to the General
Partner Interest. All Partnership Preferred Securities shall rank senior to
all other Interests in the Partnership in respect of the right to receive
Distributions. All Partnership Preferred Securities redeemed, purchased or
otherwise acquired by the Partnership shall be canceled. The Partnership
Preferred Securities will be issued in registered form only.
(d) No Holder shall be entitled as a matter of right to subscribe
for or purchase, or have any preemptive right with respect to, any part of any
new or additional limited partnership interests, or of securities convertible
into any Partnership Preferred Securities or other limited partnership
interests, whether now or hereafter authorized and whether issued for cash or
other consideration or by way of a distribution.
(e) Any of the Partnership Preferred Securities that are owned by
the Company or by any entity more than 50% of which is owned by the Company,
either directly or indirectly, shall not be entitled to vote or consent with
respect to any Partnership Preferred Security owned by it, and shall, for
purposes of such vote or consent, be treated as if they were not outstanding;
provided, however, that persons otherwise eligible to vote to whom the Company
or any of its subsidiaries have pledged Partnership Preferred Securities may
vote or consent with respect to such pledged Partnership Preferred Securities
under any of the circumstances described in Section 6.2.
Section 6.2 PARTNERSHIP PREFERRED SECURITIES.
(a) Designation. A total of 8,247,440 Partnership Preferred
Securities, liquidation preference $25 per Partnership Preferred Security, are
hereby designated as "8.30% Partnership Preferred Securities".
(b) Distributions.
(i) Partnership Preferred Security Holders shall be
entitled to receive cumulative Distributions and Compounded
Distributions (as defined below) (if any), if, as and when declared by
the General Partner, in its sole discretion, out of the assets of the
Partnership legally available therefor, at a rate per annum of 8.30%
of the stated liquidation preference of $25 per Partnership Preferred
Security, calculated on the basis of a 360-day year consisting of
twelve 30-day months. For any period shorter than a full 90-day
quarter, Distributions will be computed on the basis of the actual
number of days elapsed in such 90-day quarter. Such Distributions
shall, from the date of original issue, accrue and be cumulative and
shall be payable quarterly, when, if, and as declared by the General
Partner on the dates specified in Section 6.2(b)(ii) below.
Distributions and Compounded Distributions (as defined below) (if any)
on the Partnership Preferred Securities shall be cumulative from the
Closing Date. Distributions not paid on the scheduled Distribution
Payment Date will accumulate and compound quarterly at the rate of
8.30% per annum ("Compounded Distributions"). In the event that any
date on which Distributions are payable on the Partnership Preferred
Securities is not a Business Day, then payment of the Distribution
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 (without any reduction in interest
or other amounts in respect of such early payment).
(ii) Distributions on the Partnership Preferred Securities
will be payable quarterly in arrears if, as and when, declared by the
General Partner on March 31, June 30, September 30 and December 31 of
each year, commencing on December 31, 1996 (each a "Distribution
Payment Date").
Distributions will be payable to the Holders as they appear on
the books and records of the Partnership on the relevant Record Date.
If the Trust or the Property Trustee is the Holder of the Partnership
Preferred Securities, all distributions of cash shall be made by wire
transfer of same day funds to such Holder by 10:00 a.m., New York City
time, on the applicable Distribution Payment Date. Distributions
payable on any Partnership Preferred Securities that are not
punctually paid on any Distribution
12
<PAGE> 18
Payment Date will cease to be payable to the Person in whose name such
Partnership Preferred Securities are registered on the relevant record
date, and such Distribution will instead be payable to the Person in
whose name such Partnership Preferred Securities are registered on the
record date for payment of such defaulted or accrued Distribution.
(c) Optional Redemption. Partnership Preferred Securities shall
be redeemable at the option of the General Partner, in whole or in part, from
time to time, on or after December 31, 2001, upon not less than 30 nor more
than 60 days' notice, at an amount per Partnership Preferred Securities equal
to $25 plus accrued and unpaid Distributions thereon, including any Compounded
Distributions (the "Redemption Price"). The Partnership may not redeem the
Partnership Preferred Securities in part unless all accumulated and unpaid
Distributions, including any Compounded Distributions, have been paid in full
on all Partnership Preferred Securities for all Fiscal Periods terminating on
or prior to the date of redemption. If a partial redemption of the Partnership
Preferred Securities would result in the delisting of the Trust Preferred
Securities (or, if the Trust is liquidated in connection with a Trust Special
Event, the delisting of the Partnership Preferred Securities), the Partnership
may only redeem the Partnership Preferred Securities in whole but not in part.
(d) Special Event Redemptions. (i) If, at any time, a
Partnership Special Event shall occur and be continuing, the General Partner
shall, within 90 days following the occurrence of such Partnership Special
Event, elect to either (i) redeem the Partnership Preferred Securities in whole
(but not in part), upon not less than 30 or more than 60 days' notice at the
Redemption Price, provided that if at the time there is available to the
Partnership the opportunity to eliminate, within such 90-day period, the
Partnership Special Event by taking some ministerial action, such as filing a
form or making an election, or pursuing some other similar reasonable measure
that in the sole judgment of the General Partner has or will cause no adverse
effect on the Partnership, the Trust, or the Company, the General Partner will
pursue such measure in lieu of redemption; or (ii) cause the Partnership
Preferred Securities to remain outstanding, provided that in the case of this
clause (ii), the General Partner shall pay any and all costs and expenses
incurred by or payable by the Partnership which are attributable to the
Partnership Special Event.
(e) Redemption Procedures.
(i) Notice of any redemption of Partnership Preferred
Securities (a "Redemption Notice") will be given by the General
Partner on behalf of the Partnership by mail to each Holder of
Partnership Preferred Securities to be redeemed not fewer than 30 nor
more than 60 days before the date fixed for redemption. For purposes
of the calculation of the date of redemption and the dates on which
notices are given pursuant to this Section 6.2(e)(i), a Redemption
Notice shall be deemed to be given on the day such notice is first
mailed, by first-class mail, postage prepaid, to Holders of
Partnership Preferred Securities. Each Redemption Notice shall be
addressed to the Holders of Partnership Preferred Securities at the
address of each such Holder appearing in the books and records of the
Partnership. No defect in the Redemption Notice or in the mailing
thereof with respect to any Holder shall affect the validity of the
redemption proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding
Partnership Preferred Securities are to be redeemed, the Partnership
Preferred Securities to be redeemed shall be redeemed pro rata
provided, that, in the event Partnership Preferred Securities are held
in book-entry only form by DTC or its nominee (or any successor
Clearing Agency or its nominee), DTC will reduce, in accordance with
DTC's customary procedures, the amount of the interest of each
Clearing Agency Participant in the Partnership Preferred Securities to
be redeemed.
(iii) If the Partnership gives a Redemption Notice (which
notice will be irrevocable), then by 12:00 noon, New York City time,
on the redemption date, the General Partner on behalf of the
Partnership (A) if the Partnership Preferred Securities are in
book-entry only form with DTC, will deposit irrevocably with DTC funds
sufficient to pay the applicable Redemption Price and will give DTC
irrevocable instructions and authority to pay the Redemption Price in
respect of the Partnership Preferred Securities held
13
<PAGE> 19
through DTC in global form or (B) if the Partnership Preferred
Securities are held in certificated form, will deposit with the Paying
Agent, funds sufficient to pay the applicable Redemption Price of the
amount of any such Partnership Preferred Securities and will give to
the Paying Agent irrevocable instructions and authority to pay such
amounts to the Holders of Partnership Preferred Securities, upon
surrender of their certificates, by check, mailed to the address of
the relevant Holder appearing on the books and records of the
Partnership on the redemption date; provided, however, that for so
long as the Trust or the Property Trustee of the Trust shall hold the
Partnership Preferred Securities, payment of cash shall be made by
wire in same day funds to the Holder by 12:00 Noon, New York City
time, on the redemption date. For these purposes, the applicable
Redemption Price shall not include Distributions which are being paid
to Holders who were Holders on a relevant record date. Upon
satisfaction of the foregoing conditions, then immediately prior to
the close of business on the date of such deposit or payment, all
rights of Holders of such Partnership Preferred Securities so called
for redemption will cease, except the right of the Holders to receive
the Redemption Price, but without interest on such Redemption Price,
and from and after the date fixed for redemption, such Partnership
Preferred Securities will not accrue distributions or bear interest.
In the event that any date fixed for redemption of Partnership
Preferred Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next
succeeding Business Day (and without any interest in respect of any
such delay), except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately preceding
Business Day (without any reduction in interest on other amounts in
respect of any such early payment). In the event that payment of the
Redemption Price is improperly withheld or refused and not paid by
either the Partnership or the Company pursuant to the Partnership
Guarantee, Distributions on the Partnership Preferred Securities
called for Redemption will continue to accrue, to the extent that
payment of such interest is legally available, from the original
redemption date until the Redemption Price is actually paid.
The Partnership shall not be required to register or cause to
be registered the transfer of any Partnership Preferred Securities
which have been called for redemption.
(f) Company Purchases. Subject to the provisions of this Section
6.2 and applicable law (including, without limitation, Federal securities
laws), if Partnership Preferred Securities have been distributed to the Holders
(as defined in the Declaration) of Trust Preferred Securities, the Company or
any of its subsidiaries may at any time and from time to time purchase
outstanding Partnership Preferred Securities by tender, in the open market, or
by private agreement.
(g) Liquidation Distribution Upon Dissolution. In the event of
any voluntary or involuntary liquidation, dissolution, winding-up or
termination of the Partnership, the Holders of Partnership Preferred Securities
at the time outstanding will be entitled to receive out of the assets of the
Partnership such amount as is determined in accordance with Section 13.4 (the
"Partnership Liquidation Distribution") payable in cash.
(h) Voting Rights.
(i) Special Representative.
(1) If one or more of the following events shall occur
and be continuing (each a "Partnership Enforcement Event"): (i)
arrearages on distributions on the Partnership Preferred Securities
shall exist for six consecutive quarterly distribution periods, (ii)
the Company is in default on any of its obligations under the
Partnership Guarantee or (iii) an Investment Event of Default on any
Affiliate Investment Instrument or a default under any Investment
Guarantee, as the case may be, the Holders of the Partnership
Preferred Securities, upon the affirmative vote of at least a Majority
in Liquidation Preference of the Partnership Preferred Securities,
shall have the right, to the exclusion of the General Partner, (a) to
appoint and authorize a special representative of the Partnership and
the Limited Partners (a "Special Representative") to enforce (1) to
the maximum extent permitted by applicable law, the Partnership's
creditors' rights and other rights with respect to the Affiliate
Investment Instruments and the Investment
14
<PAGE> 20
Guarantees, (2) the rights of the Holders of the Partnership Preferred
Securities under the Partnership Guarantee, and (3) the rights of the
Holders of the Partnership Preferred Securities to receive
Distributions (only if, and to the extent, declared by the General
Partner, in its sole discretion, out of funds legally available
therefor) on the Partnership Preferred Securities, and (b) under the
Partnership Guarantee to enforce the terms of the Partnership
Guarantee, including the right to enforce the covenant restricting
certain payments. Under no circumstances, however, shall the Special
Representative have authority to cause the General Partner to declare
Distributions on the Partnership Preferred Securities or have any
authority concerning the selection of Partnership Investments. When
the Special Representative acts to enforce the Partnership's
creditors' rights and other rights with respect to the Affiliate
Investment Instruments and the Investment Guarantees, the Special
Representative acts as an agent of the Partnership. When the Special
Representative acts to enforce the rights of the Holders of the
Partnership Preferred Securities under the Partnership Guarantee or
their rights to receive Distributions on the Partnership Preferred
Securities, the Special Representative acts as an agent of the Holders
of the Partnership Preferred Securities. In addition, the Special
Representative shall not, by virtue of acting in such capacity, be
admitted as a general or limited partner in the Partnership or
otherwise be deemed to be a general or limited partner in the
Partnership and shall have no liability for the debts, obligations, or
liabilities of the Partnership.
(2) In furtherance of the foregoing, and without limiting
the powers of any Special Representative so appointed and to avoid any
doubt concerning the powers of the Special Representative, any Special
Representative, in its own name, in the name of the Partnership, in
the name of the Limited Partners, or otherwise, may institute, or
cause to be instituted, a proceeding, including, without limitation,
any suit in equity, an action at law or other judicial or
administrative proceeding, to enforce on behalf of the Partnership the
Partnership's rights directly against the Company or any other obligor
in connection with its obligations to the Partnership, and may
prosecute such proceeding to judgment or final decree, and enforce the
same against the Company or any other obligor in connection with such
obligations and collect, out of the property, wherever situated, of
the Company or any such other obligor upon such obligations, the
monies adjudged or decreed to be payable in the manner provided by
law. The General Partner agrees to execute and deliver such documents
as may be necessary, appropriate or convenient for the Special
Representative to enforce the foregoing rights and obligations on
behalf and in the name of the Partnership.
(3) If the Special Representative fails to enforce its
rights under any Affiliate Investment Instrument after a holder of
Partnership Preferred Securities has made a written request, such
holder of record of Partnership Preferred Securities may to the
fullest extent permitted by law directly institute a legal proceeding
against the applicable Investment Affiliate to enforce the rights of
the Special Representative and the Partnership under the Affiliate
Investment Instrument without first instituting any legal proceeding
against the Special Representative, the Partnership or any other
person or entity. In any event, if a Partnership Enforcement Event
has occurred and is continuing and such event is attributable to the
failure of an Investment Affiliate to make any required payment when
due on any Affiliate Investment Instrument, then a holder of
Partnership Preferred Securities may to the fullest extent permitted
by law on behalf of the Partnership directly institute a proceeding
against such Investment Affiliate with respect to such Affiliate
Investment Instrument for enforcement of payment. In addition, the
Partnership acknowledges that, for so long as the Trust holds any
Partnership Preferred Securities, if the Special Representative fails
to enforce its rights on behalf of the Partnership under the Affiliate
Investment Instruments after a holder of Trust Securities has made a
written request, a holder of record of Trust Securities may to the
fullest extent permitted by law on behalf of the Partnership directly
institute a legal proceeding against the Investment Affiliates under
the Affiliate Investment Instruments, without first instituting any
legal proceeding against the Property Trustee, the Trust, the Special
Representative or the Partnership. In any event, for so long as the
Trust is the holder of any Partnership Preferred Securities, if a
Trust Enforcement Event has occurred and is continuing and such event
is attributable to the failure of an Investment Affiliate to make any
required payment when due on any Affiliate Investment Instrument or
the failure of the Company to make any required payment when due on
any Investment Guarantee, then
15
<PAGE> 21
the Partnership acknowledges that a holder of Trust Securities may to
the fullest extent permitted by law on behalf of the Partnership
directly institute a proceeding against such Investment Affiliate with
respect to such Affiliate Investment Instrument or against the Company
with respect to any such Investment Guarantee, in each case for
enforcement of payment. Under no circumstances shall the Special
Representative, any holder of Partnership Preferred Securities or any
holder of Trust Preferred Securities have authority to cause the
General Partner to declare distributions on the Partnership Preferred
Securities.
(4) For purposes of determining whether the Partnership
has deferred payment of Distributions for six (6) consecutive
quarters, Distributions shall be deemed to remain in arrears,
notwithstanding any payments in respect thereof, until full cumulative
Distributions, including Compounded Distributions, have been or
contemporaneously are paid with respect to all quarterly Distribution
periods terminating on or prior to the date of payment of such full
cumulative Distributions. Not later than 30 days after such right to
appoint a Special Representative arises, the General Partner will
convene a meeting for election of a Special Representative. If the
General Partner fails to convene such meeting within such 30-day
period, the Holders of not less than 10% in Liquidation Preference of
the Outstanding Partnership Preferred Securities will be entitled to
convene such meeting. The provisions of Section 14.3 relating to the
convening and conduct of meetings of the Partners will apply with
respect to any such meeting. In the event that, at any such meeting,
Holders of less than a Majority in Liquidation Preference of
Partnership Preferred Securities entitled to vote for the appointment
of a Special Representative vote for such appointment, no Special
Representative shall be appointed. Any Special Representative
appointed shall cease to be a Special Representative of the
Partnership and/or the Limited Partners if (x) the Partnership (or the
Company pursuant to the Partnership Guarantee) shall have paid in full
all accrued and unpaid Distributions on the Partnership Preferred
Securities, (y) the relevant Investment Event of Default shall have
been cured, and (z) the Company is in compliance with all its
obligations under the Partnership Guarantee, and the Company, in its
capacity as the General Partner, shall continue the activities of the
Partnership without dissolution. Notwithstanding the appointment of
any such Special Representative, the Company shall continue as General
Partner and shall retain all rights under this Agreement, including
the right to determine whether to declare, in its sole discretion, the
payment of Distributions on the Partnership Preferred Securities.
(ii) Certain Amendments; Waiver. (1) If any proposed
amendment of this Agreement provides for, or the General Partner
otherwise proposes to effect, (x) any action that would adversely
affect the powers, preferences or special rights of the Holders of the
Partnership Preferred Securities, whether by way of amendment of this
Agreement or otherwise (including, without limitation, the
authorization or issuance of any limited partnership interests in the
Partnership ranking, as to participation in profits or distributions,
or in the assets of the Partnership, senior to the Partnership
Preferred Securities); or (y) the dissolution, winding-up or
termination of the Partnership, other than (1) in connection with the
occurrence of a Partnership Special Event or (2) as described under
Sections 11.11 and 13.2 of this Agreement, then the Holders of
outstanding Partnership Preferred Securities will be entitled to vote
on such amendment or proposal of the General Partner (but not on any
other amendment or proposal) as a class and such amendment or proposal
shall not be effective except with the approval of Holders of a
Majority in Liquidation Preference of such outstanding Partnership
Preferred Securities having a right to vote on the matter; provided,
however, that if the Property Trustee on behalf of the Trust is the
Holder of the Partnership Preferred Securities, any such amendment or
proposal not excepted by (1) or (2) above shall not be effective
without the prior or concurrent approval of the Holders of a majority
in liquidation amount of the outstanding Trust Preferred Securities
having a right to vote on such matters; provided, further that no such
approval shall be required if the dissolution, winding-up or
termination of the Partnership is proposed or initiated upon the
initiation of proceedings, or after proceedings have been initiated,
for the dissolution, winding-up, liquidation or termination of the
Company.
(2) The Holders of a Majority in Liquidation
Preference of Partnership Preferred Securities may, by vote,
on behalf of the Holders of all of the Partnership Preferred
Securities,
16
<PAGE> 22
waive any past Partnership Enforcement Event with respect to
the Partnership Preferred Securities and its consequences;
provided that, if the underlying Investment Event of Default:
(A) is not waivable under the related Affiliate
Investment Instrument, such Partnership Enforcement
Event shall also not be waivable; or
(B) requires the consent or vote of the Holders of
greater than a majority in principal amount or
liquidation preference of the Affiliate Investment
Instruments (a "Super Majority") to be waived under
the related Affiliate Investment Instrument, the
Partnership Enforcement Event may only be waived by
the vote of the Holders of the relevant Super
Majority in liquidation amount of the Partnership
Preferred Securities.
Upon such waiver, any such Partnership Enforcement Event shall
cease to exist, and shall be deemed to have been cured, for
every purpose of this Agreement, but no such waiver shall
extend to any subsequent or other Partnership Enforcement
Event or impair any right consequent thereon.
(3) A waiver of an Investment Event of Default by
the Special Representative, acting at the direction of the
Holders of the Partnership Preferred Securities, constitutes a
waiver of the corresponding Partnership Enforcement Event.
(iii) General Voting. (1) Neither the General Partner nor
the Special Representative shall (i) direct the time, method and place
of conducting any proceeding for any remedy available, (ii) waive any
Investment Event of Default that is waivable under the Affiliate
Investment Instruments, (iii) exercise any right to rescind or annul a
declaration that the principal of any Affiliate Investment Instruments
that are debt instruments shall be due and payable, (iv) waive the
breach of the covenant by the Company in the Partnership Guarantee to
restrict certain payments, or (v) consent to any amendment,
modification or termination of any Affiliate Investment Instrument,
where such consent shall be required from the holder thereof, without,
in each case, obtaining the prior approval of the Holders of at least
a Majority in Liquidation Preference of the Partnership Preferred
Securities; provided, however, that if the Property Trustee on behalf
of the Trust is the Holder of the Partnership Preferred Securities,
such waiver, consent or amendment or other action shall not be
effective without the prior or concurrent approval of at least a
majority in liquidation amount of the outstanding Trust Preferred
Securities having a right to vote on such matters. The General
Partner shall not revoke any action previously authorized or approved
by a vote of the Holders of the Partnership Preferred Securities. The
General Partner shall notify all Holders of the Partnership Preferred
Securities of any notice of an Investment Event of Default received
with respect to any Affiliate Investment Instrument.
(2) Any required approval of Holders of Partnership
Preferred Securities may be given at a separate meeting of such
Holders convened for such purpose or pursuant to written consent. The
General Partner will cause a notice of any meeting at which Holders of
Partnership Preferred Securities are entitled to vote, or of any
matter upon which the action by written consent of such Holders is to
be taken, to be mailed to each Holder of record of Partnership
Preferred Securities. Each such notice will include a statement
setting forth (x) the date of such meeting or the date by which such
action is to be taken, (y) a description of any matter proposed for
adoption at such meeting on which such Holders are entitled to vote or
of such matters upon which written consent is sought and (z)
instructions for the delivery of proxies or consents. No vote or
consent of the Holders of Partnership Preferred Securities will be
required for the Partnership to redeem and cancel Partnership
Preferred Securities in accordance with this Agreement.
(3) Notwithstanding that Holders of Partnership Preferred
Securities are entitled to vote or consent under any of the
circumstances described above, any of the Partnership Preferred
Securities at such time that are owned by the Company or by any entity
more than 50% of which is owned by the
17
<PAGE> 23
Company, either directly or indirectly, shall not be entitled to vote
or consent and shall, for purposes of such vote or consent, be treated
as if they were not outstanding; provided, however, that persons
otherwise eligible to vote to whom the Company or any of its
subsidiaries have pledged Partnership Preferred Securities may vote or
consent with respect to such pledged Partnership Preferred Securities
under any of the circumstances described herein.
(4) Holders of the Partnership Preferred Securities shall
have no rights to remove or replace the General Partner.
(5) Holders of Partnership Preferred Securities shall
have no preemptive rights.
ARTICLE VII
PARTNERSHIP INVESTMENTS
Section 7.1 INITIAL AFFILIATE INVESTMENT INSTRUMENTS.
(a) All Partnership funds will be invested in the securities of
Investment Affiliates (the "Affiliate Investment Instruments") and Eligible
Debt Securities. No more than 99% of the Initial Partnership Proceeds will be
used by the Partnership to purchase the Initial Debentures meeting the criteria
set forth in this Section 7.1. The remaining funds from the Initial
Partnership Proceeds will be used to purchase Eligible Debt Securities in
accordance with the terms of this Agreement.
(b) The Partnership shall apply approximately 99% of the Initial
Partnership Proceeds to purchase (1) a debt instrument of the Company (the
"Initial Company Debenture") in the aggregate principal amount of approximately
$181,926,000 and (2) debt instruments of two wholly owned United States
subsidiaries of the Company totalling approximately $58,216,000 (such debt
instruments collectively referred to as the "Initial Affiliate Debentures").
The Initial Company Debenture and the Initial Affiliate Debentures are
collectively referred to as the "Initial Debentures." The Partnership may
purchase the Initial Debentures only upon receipt of an opinion of the
Independent Financial Advisor to the effect that (i) if such Initial Debentures
were to be rated, at least one Rating Agency would rate all the Initial
Debentures investment grade at the time such Initial Debentures are purchased
by the Partnership, (ii) the Company and each Investment Affiliate which is a
subsidiary of the Company would have been capable of issuing and selling debt
instruments with the same terms and conditions as the applicable Initial
Debentures to unrelated third party investors, (iii) the terms and conditions
of the Initial Debentures taken as a whole are no more favorable to the
relevant Investment Affiliate than could have been obtained by such Investment
Affiliate from unrelated third party investors pursuant to a public offering or
a private placement pursuant to Rule 144A under the Securities Act of 1933 of
such Initial Debentures. On the Closing Date, the Partnership shall invest at
least 1% of such Initial Partnership Proceeds in Eligible Debt Securities. The
terms of the Initial Debentures will be as set forth in the Indentures attached
hereto as Exhibits A and B.
Section 7.2 REINVESTMENT OF PAYMENTS RECEIVED BY THE PARTNERSHIP.
(a) The Partnership must at all times invest an amount equal to at
least 1% of the Initial Partnership Proceeds in Eligible Debt Securities.
(b) The Partnership may reinvest any payments it receives in
respect of its investments in (i) Eligible Debt Securities without limitation
or (ii) additional Affiliate Investment Instruments but only upon (A) the
acceptance of a written offer setting forth the terms and conditions on which
an Investment Affiliate would be willing to issue an Affiliate Investment
Instrument to the Partnership (an "Investment Offer") and (B) the receipt of an
opinion of the Independent Financial Advisor that the terms of such Affiliate
Investment Instrument set forth in such Investment Offer satisfy the
Reinvestment Criteria (as defined below).
18
<PAGE> 24
(c) If the Independent Financial Advisor determines that the terms
of an Affiliate Investment Instrument (as set forth in the Investment Offer) do
not satisfy the Reinvestment Criteria, the Partnership shall be prohibited from
making any investment in such Affiliate Investment Instrument.
(d) Each Affiliate Investment Instrument shall satisfy the
following criteria (the "Reinvestment Criteria"): (i) the economic terms of
each Affiliate Investment Instrument shall be no less favorable to the
Partnership than terms that would otherwise be obtainable through a public
offering or private placement under Rule 144A of the Securities Act of 1933 of
securities by the requesting Investment Affiliate and the other terms and
conditions of each Affiliate Reinvestment Instrument are substantially similar
to the terms and conditions of similar securities that are offered to the
public in a public offering or private placement under Rule 144A of the
Securities Act of 1933 of such securities; (ii) the Partnership shall not have
held any Affiliate Investment Instruments of the Investment Affiliate
submitting the Investment Offer within the three-year period ending on the date
of the Investment Offer; (iii) there shall not have been a default on any debt
obligation of the Investment Affiliate submitting the Investment Offer that was
owned by the Partnership; (iv) no dividend arrearages shall have existed on any
equity security of the Investment Affiliate submitting the Investment Offer
that was owned by the Partnership; and (v) the Investment Affiliate submitting
the Investment Offer shall not be deemed to be an investment company by reason
of Section 3(a) or 3(b) of the 1940 Act.
(e) Any payments received by the Partnership in respect of its
investments that are not invested in additional Affiliate Investment
Instruments, may be reinvested only in Eligible Debt Securities (subject to
restrictions of applicable law, including the 1940 Act).
Section 7.3 ASSUMPTION OF OBLIGATIONS AND RELEASE OF INVESTMENT
AFFILIATE.
The General Partner, on behalf of the Partnership, may without the
approval of the Holders of Partnership Preferred Securities, release any
Investment Affiliate other than the Company (a "Released Investment Affiliate")
from its obligations under an Affiliate Investment Instrument but only upon (A)
the receipt of a written instrument of assumption evidencing the assumption by
another Investment Affiliate (an "Assuming Investment Affiliate") of all
obligations of the Released Investment Affiliate under such Affiliate
Investment Instrument, (B) the receipt of a written instrument of the Company
evidencing its agreement that its Investment Guarantee will continue to be
applicable to such Affiliate Investment Instrument following the assumption and
release and (C) the receipt of an opinion of the Independent Financial Advisor
that the terms of such Affiliate Investment Instrument would satisfy the
Reinvestment Criteria if such Affiliate Investment Instrument were entered into
de novo by the Assuming Investment Affiliate on the date of such assumption.
ARTICLE VIII
BOOKS OF ACCOUNT, RECORDS AND REPORTS
Section 8.1 BOOKS AND RECORDS.
(a) Proper and complete records and books of account of the
Partnership shall be kept by the General Partner, in which shall be entered
fully and accurately all transactions and other matters relative to the
Partnership's investments. The books and records of the Partnership, together
with a certified copy of this Agreement and of the Certificate, shall at all
times be maintained at the principal office of the General Partner and shall be
open to the inspection and examination of the Partners or their duly authorized
representatives for any proper purpose reasonably related to its Interest
during reasonable business hours.
(b) Notwithstanding any other provision of this Agreement to the
contrary, the General Partner may, to the maximum extent permitted by
applicable law, keep confidential from the Partners any information with
respect to the Partnership, the disclosure of which the General Partner
reasonably believes is not in the best interests
19
<PAGE> 25
of the Partnership, or is adverse to the interests of the Partnership, or which
the Partnership or the General Partner is required by law or by an agreement
with any Person to keep confidential.
(c) (i) For so long as the Partnership Preferred Securities are
held by the Property Trustee on behalf of the Trust, within one month after the
close of each Fiscal Year, the General Partner shall transmit to each Partner a
statement indicating such Partner's share of each item of Partnership income,
gain, loss, deduction or credit, for United States federal income tax purposes,
for such Fiscal Year.
(ii) In the event that the Partnership Preferred
Securities are no longer held by the Property Trustee on behalf of the
Trust, as soon as reasonably possible after the close of the Fiscal
Year, the General Partner shall transmit to each Partner the statement
referred to in Section 8.1(c)(i) hereof.
Section 8.2 ACCOUNTING METHOD. For both financial and tax
reporting purposes, the books and records of the Partnership shall be kept on
the accrual method of accounting applied on a consistent basis and shall
reflect all Partnership transactions.
Section 8.3 ANNUAL AUDIT. As soon as practical after the end of
each Fiscal Year, but not later than 90 days after such end, the financial
statements of the Partnership shall be audited by a firm of independent
certified public accountants selected by the General Partner in accordance with
applicable law. The cost of such audits will be an expense of the Partnership
and shall be paid by the General Partner.
ARTICLE IX
PAYMENT OF EXPENSES
Section 9.1 PAYMENT OF TRUST EXPENSES AND PARTNERSHIP TAXES.
Since the Trust is being formed solely to facilitate a direct investment in the
Partnership Preferred Securities, the General Partner on behalf of the
Partnership hereby agrees, at any time while the Property Trustee is the Holder
of any Partnership Preferred Securities, to pay all the expenses of the Trust,
including, but not limited to, any taxes, duties, assessments or governmental
charges of whatever nature (other than withholding taxes) imposed on the Trust
by the United States, or any other taxing authority, so that the net amounts
received and retained by the Trust and the Property Trustee after paying such
expenses will be equal to the amounts the Trust and the Property Trustee would
have received had no such costs or expenses been incurred by or imposed on the
Trust. The General Partner shall be liable for, and shall pay all such
expenses on behalf of the Partnership solely out of its own funds. In
addition, if the Partnership 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 General Partner will pay such taxes, duties, assessments or other
governmental charges on behalf of the Partnership out of its own funds.
Section 9.2 PAYMENT OF OTHER PARTNERSHIP EXPENSES. In connection
with the offering, sale and issuance of the Partnership Preferred Securities by
the Partnership, the General Partner shall:
(a) pay all costs and expenses of the Partnership (including, but
not limited to, costs and expenses relating to the organization of the
Partnership, the offering, sale and issuance of the Partnership Preferred
Securities (including commissions to the underwriters in connection therewith)
the fees and expenses of the Special Representatives (if any), and the costs
and expenses relating to the operation of the Partnership, 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
(b) be primarily and fully liable for any indemnification
obligations arising with respect to this Agreement.
20
<PAGE> 26
ARTICLE X
POWERS, RIGHTS AND DUTIES
OF THE LIMITED PARTNERS
Section 10.1 LIMITATIONS. The Limited Partners shall not
participate in the management or control of the Partnership's investment
activity, property or other assets, nor shall the Limited Partners engage in
any activities for the Partnership, nor shall the Limited Partners have the
power to act for or bind the Partnership, such powers being vested solely and
exclusively in the General Partner (and, upon appointment, and to the extent
set forth herein, the Special Representative). The Limited Partners shall have
such rights as are set forth herein and in the Partnership Guarantee. The
Limited Partners shall have no interest in the properties or assets of the
General Partner, or any equity therein, or in any proceeds of any sales thereof
(which sales shall not be restricted in any respect), by virtue of acquiring or
owning an Interest in the Partnership.
Section 10.2 LIABILITY. Subject to the provisions of the Act, no
Limited Partner shall be liable for the repayment, satisfaction or discharge of
any debts or other obligations of the Partnership in excess of the Capital
Account balance of such Limited Partner.
Section 10.3 PRIORITY. No Limited Partner shall have priority
over any other Limited Partner as to Partnership allocations or distributions.
ARTICLE XI
POWERS, RIGHTS AND DUTIES
OF THE GENERAL PARTNER
Section 11.1 AUTHORITY. Subject to the provisions of Section
6.2(h)(i) with respect to the Special Representative, the General Partner shall
have exclusive and complete authority and discretion to manage the operations
and affairs of the Partnership and to make all decisions regarding the
investment activity of the Partnership. Any action taken by the General
Partner shall constitute the act of and serve to bind the Partnership. In
dealing with the General Partner acting on behalf of the Partnership no Person
shall be required to inquire into the authority of the General Partner to bind
the Partnership. Persons dealing with the Partnership are entitled to rely
conclusively on the power and authority of the General Partner as set forth in
this Agreement.
Section 11.2 POWERS AND DUTIES OF GENERAL PARTNER. Subject to the
provisions of Section 6.2(h)(i) with respect to the Special Representative, the
General Partner shall have all rights and powers of a general partner under the
Act, and shall have all authority, rights and powers in the management of the
Partnership's investment activity to do any and all other acts and things
necessary, proper, convenient or advisable to effectuate the purposes of this
Agreement, including by way of illustration but not by way of limitation, the
following:
(a) to secure the necessary goods and services required in
performing the General Partner's duties for the Partnership;
(b) to exercise all powers of the Partnership, on behalf of the
Partnership, in connection with enforcing the Partnership's rights under the
Affiliate Investment Instruments and the Partnership Guarantee;
(c) to issue Partnership Preferred Securities and to admit Limited
Partners in connection therewith in accordance with this Agreement;
21
<PAGE> 27
(d) to act as registrar and transfer agent for the Partnership
Preferred Securities or designate an entity to act as registrar and transfer
agent;
(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including with
respect to Distributions and voting rights and to make determinations as to the
payment of Distributions, and make or cause to be made all other required
payments to Holders of the Partnership Preferred Securities and to the General
Partner;
(f) to open, maintain and close bank accounts and to draw checks
and other orders for the payment of money;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or against the
Partnership;
(h) to deposit, withdraw, invest, pay, retain and distribute the
Partnership's funds in a manner consistent with the provisions of this
Agreement;
(i) to take all action that may be necessary or appropriate for
the preservation and the continuation of the Partnership's valid existence,
rights, franchises and privileges as a limited partnership under the laws of
the State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Limited Partners or to enable
the Partnership to invest in the Affiliate Investment Instruments and Eligible
Debt Securities;
(j) to take all action not inconsistent with applicable law, the
Certificate or this Agreement, that the General Partner or, upon appointment
pursuant to Section 6.2(h)(i), the Special Representative, determines in its
sole discretion to be necessary or desirable to ensure, as long as such action
does not adversely affect the interests of the Partnership Preferred Security
Holders, or cause (i) the Partnership to be deemed to be an "investment
company" required to be registered under the 1940 Act, (ii) any Initial
Debenture (or any subsequent Affiliate Investment Instrument that is intended
to be classified as debt) to not be treated as indebtedness for United States
federal income tax purposes, or (iii) the Partnership to be treated as an
association or as a publicly traded partnership taxable as a corporation;
(k) to cause the Partnership to enter into and perform the
Purchase Agreement and to purchase Eligible Debt Securities and Affiliate
Investment Instruments, as the case may be, without any further act, vote or
approval of any Partner; and
(l) to execute and deliver any and all documents or instruments,
perform all duties and powers and do all things for and on behalf of the
Partnership in all matters necessary or desirable or incidental to the
foregoing.
Section 11.3 OBLIGATIONS AND EXPENSES PAYABLE BY GENERAL PARTNER.
(a) The General Partner hereby assumes and shall be liable for the
debts, obligations and liabilities of the Partnership, including, but not
limited to, any liabilities arising under the Securities Act or the Exchange
Act and all costs and expenses relating to the investment by the Partnership in
any Affiliate Investment Instruments (but not any losses related to any
non-payment with respect to such investments), and agrees to pay on behalf of
the Partnership and solely out of its own funds to each Person to whom the
Partnership is now or hereafter becomes indebted or liable (the
"Beneficiaries"), whether such indebtedness, obligations or liabilities arise
in contract, tort or otherwise (excluding payment obligations of the Company to
Holders of the Partnership Preferred Securities in such Holders' capacities as
Holders of such Partnership Preferred Securities, such obligations being
separately guaranteed under the Partnership Guarantee), the full payment of
such indebtedness and any and all liabilities, when and as due. This Agreement
is intended to be for the benefit of and to be enforceable by all such
Beneficiaries whether or not such Beneficiaries have received notice hereof.
22
<PAGE> 28
(b) The General Partner agrees to pay on behalf of the Partnership
and solely out of its own funds and be responsible for:
(i) all costs and expenses of the Partnership including,
but not limited to, costs and expenses relating to the organization of
the Partnership, the offering, sale and issuance of Partnership
Preferred Securities, the costs and expenses relating to the operation
of the Partnership (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 agents,
duplicating, travel and telephone and other telecommunications
expenses) and costs and expenses incurred in connection with the
acquisition, financing, and disposition of the Partnership's assets;
and
(ii) any and all taxes (other than federal, state and
local withholding taxes) and all liabilities, costs and expenses with
respect to such taxes of the Partnership.
Section 11.4 LIABILITY. Except as expressly set forth in this
Agreement or in the Guarantee Agreements, (a) the General Partner shall not be
personally liable for the return of any portion of the capital contributions
(or any return thereon) of the Limited Partners; (b) the return of such capital
contributions (or any return thereon) shall be made solely from assets of the
Partnership; and (c) the General Partner shall not be required to pay to the
Partnership or to any Limited Partner any deficit in any Limited Partner's
Capital Account upon dissolution, winding-up or otherwise. Other than as
expressly provided in this Agreement or under the Act, no Limited Partner shall
have the right to demand or receive property other than cash for its respective
Interest in the Partnership. The General Partner shall be liable to an
unlimited extent for the debts and other obligations of the Partnership.
Section 11.5 OUTSIDE ACTIVITIES. Any Partner or Affiliate thereof
may engage in or possess an interest in other ventures of any nature or
description, independently or with others, similar or dissimilar to the
activities of the Partnership, and the Partnership and the Partners shall have
no rights by virtue of this Agreement in and to such independent ventures or
the income or profits derived therefrom, and the pursuit of any such venture,
even if competitive with the activities of the Partnership, shall not be deemed
wrongful or improper. No Partner or Affiliate thereof shall be obligated to
present any particular investment opportunity to the Partnership even if such
opportunity is of a character that, if presented to the Partnership, could be
taken by the Partnership, and any Partner or Affiliate thereof shall have the
right to take for its own account (individually or as a partner or fiduciary)
or to recommend to others any such particular investment opportunity.
Section 11.6 LIMITS ON GENERAL PARTNER'S POWERS. Anything in this
Agreement to the contrary notwithstanding, the General Partner shall not cause
or permit the Partnership to:
(i) acquire any assets other than as expressly provided
herein;
(ii) do any act which would make it impractical or
impossible to carry on the ordinary activity of the Partnership as set
forth in Section 2.3;
(iii) possess Partnership property for other than a
Partnership purpose;
(iv) admit a Person as a Partner, except as expressly
provided in this Agreement;
(v) make any advances of funds to the General Partner or
its Affiliates, other than such as represented by the Affiliate
Investment Instruments;
(vi) perform any act that would subject any Limited
Partner to liability as a general partner in any jurisdiction;
(vii) engage in any activity that is not consistent with
the purposes of the Partnership, as set forth in Section 2.3;
23
<PAGE> 29
(viii) without the written consent of the Holders of 66-2/3%
in Liquidation Preference of the Partnership Preferred Securities,
have an order for relief entered with respect to the Partnership or
commence a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or consent to the
entry of an order for relief in an involuntary case under any such
law, or consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of
the Partnership's property, or make any assignment for the benefit of
creditors of the Partnership; or
(ix) borrow money or become liable for the borrowings of
any third party or to engage in any financial or other trade or
business.
Section 11.7 EXCULPATION.
(a) No Partnership Indemnified Person shall be liable, responsible
or accountable in damages or otherwise to the Partnership or any Partnership
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Partnership Indemnified Person in good
faith on behalf of the Partnership and in a manner such Partnership Indemnified
Person reasonably believed to be within the scope of the authority conferred on
such Partnership Indemnified Person by this Agreement or by law, except that a
Partnership Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Partnership Indemnified Person's gross
negligence or willful misconduct with respect to such acts or omissions.
(b) A Partnership Indemnified Person shall be fully protected in
relying in good faith upon the records of the Partnership and upon such
information, opinions, reports or statements presented to the Partnership by
any Person as to matters the Partnership Indemnified Person reasonably believes
are within such other Person's professional or expert competence and who has
been selected with reasonable care by or on behalf of the Partnership,
including information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
Partners might properly be paid.
Section 11.8 FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, a Partnership
Indemnified Person has duties (including fiduciary duties) and liabilities
relating thereto to the Partnership or to any other Partnership Covered Person,
a Partnership Indemnified Person acting under this Agreement shall not be
liable to the Partnership or to any other Partnership Covered Person for its
good faith reliance on the provisions of this Agreement. The provisions of
this Agreement, to the extent that they restrict the duties and liabilities of
a Partnership Indemnified Person otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of
such Partnership Indemnified Person.
(b) Unless otherwise expressly provided herein, (i) whenever a
conflict of interest exists or arises between Partnership Covered Persons, or
(ii) whether this Agreement or any other agreement contemplated herein or
therein provides that a Partnership Indemnified Person shall act in a manner
that is, or provides terms that are, fair and reasonable to the Partnership or
any Partner, the Partnership Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms, considering in each case the
relative interest of each party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits and burdens relating to
such interests, any customary or accepted industry practices, and any
applicable generally accepted accounting practices or principles. In the
absence of bad faith by the Partnership Indemnified Person, the resolution,
action or term so made, taken or provided by the Partnership Indemnified Person
shall not constitute a breach of this Agreement or any other agreement
contemplated herein or of any duty or obligation of the Partnership Indemnified
Person at law or in equity or otherwise.
(c) Whenever in this Agreement a Partnership Indemnified Person is
permitted or required to make a decision (i) in its "discretion" or under a
grant of similar authority, the Partnership Indemnified Person shall be
24
<PAGE> 30
entitled to consider such interests and factors as it desires, including its
own interest, and shall have no duty or obligation to give any consideration to
any interest of or factors affecting the Partnership or any other Person, or
(ii) in its "good faith" or under another express standard, the Partnership
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Agreement or by
applicable law.
Section 11.9 INDEMNIFICATION.
(a) To the fullest extent permitted by applicable law, the
Partnership shall indemnify and hold harmless each Partnership Indemnified
Person from and against any loss, damage or claim incurred by such Partnership
Indemnified Person by reason of any act or omission performed or omitted by
such Partnership Indemnified Person in good faith on behalf of the Partnership
and in a manner such Partnership Indemnified Person reasonably believed to be
within the scope of authority conferred on such Partnership Indemnified Person
by this Agreement, except that no Partnership Indemnified Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Partnership Indemnified Person by reason of gross negligence or willful
misconduct with respect to such acts or omissions; provided, however, that any
indemnity under this Section 11.9 shall be provided out of and to the extent of
Partnership assets only, and no Partnership Covered Person shall have any
personal liability on account thereof.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Partnership Indemnified Person in
defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Partnership prior to the final disposition of such
claim, demand, action, suit or proceeding upon receipt by the Partnership of an
undertaking by or on behalf of the Partnership Indemnified Person to repay such
amount if it shall be determined that the Partnership Indemnified Person is not
entitled to be indemnified as authorized in Section 11.9(a).
Section 11.10 TAX MATTERS
(a) For purposes of section 6231(a)(7) of the Code, the "Tax
Matters Partner" shall be the Company as long as it remains the general partner
of the Partnership. The Tax Matters Partner shall keep the Limited Partners
fully informed of any inquiry, examination or proceeding.
(b) Neither the Partnership, nor the Tax Matters Partner on behalf
of the Partnership, shall make an election under section 754 of the Code.
(c) The General Partner and the Partnership Preferred Security
Holders acknowledge that they intend, for United States federal income tax
purposes, that the Partnership shall be treated as a "partnership" (other than
a publicly traded partnership taxable as a corporation) and that the General
Partner and the Partnership Preferred Security Holders shall be treated as
"partners" of the Partnership.
(d) The General Partner shall retain, at the expense of the
Partnership and at its sole discretion, a nationally recognized firm of
certified public accountants which shall prepare all United States federal,
state, local or other tax and information returns of the Partnership, as
required by law, and the Schedule K-1's or any successor or similar forms or
schedules.
Section 11.11 CONSOLIDATION, MERGER OR SALE OF ASSETS. The
Partnership may not consolidate, amalgamate, merge with or into, or be replaced
by, or convey, transfer or lease its properties and assets substantially as an
entirety to, any corporation or other body, except as permitted pursuant to
this Section 11.11. The Partnership may, without the consent of the Holders of
the Partnership Preferred Securities, consolidate, amalgamate, merge with or
into, or be replaced by a limited partnership, limited liability company or
trust organized as such under the laws of any state of the United States of
America, provided that (i) such successor entity either (x) expressly assumes
all of the obligations of the Partnership under the Partnership Preferred
Securities or (y) substitutes for the Partnership Preferred Securities other
securities having substantially the same terms
25
<PAGE> 31
as the Partnership Preferred Securities (the "Partnership Successor
Securities") so long as the Partnership Successor Securities are not junior to
any other equity securities of the successor entity, with respect to
participation in the profits and distributions, and in the assets, of the
successor entity, (ii) the Investment Affiliates expressly acknowledge such
successor entity as the holder of the Affiliate Investment Instruments, (iii)
the Partnership Preferred Securities continue to be or any Partnership
Successor Securities are or will be listed, upon notification of issuance, on
any national securities exchange or other organization on which the Partnership
Preferred Securities, if so listed, are then listed, (iv) such merger,
consolidation, amalgamation or replacement does not cause the Trust Preferred
Securities (or, in the event that the Trust is liquidated in connection with a
Trust Special Event, the Partnership Preferred Securities (including any
Partnership Successor Securities)) to be downgraded by any nationally
recognized statistical securities rating organization, (v) such merger,
consolidation, amalgamation or replacement does not adversely affect the
powers, preferences and other special rights of the holders of the Trust
Preferred Securities or the Holders of the Partnership Preferred Securities
(including any Partnership Successor Securities)) in any material respect
(other than, in the case of the Partnership Preferred Securities, with respect
to any dilution of the Holders' interest in the new resulting entity), (vi)
such successor entity has a purpose substantially identical to that of the
Partnership, (vii) prior to such merger, consolidation, amalgamation or
replacement, the Company has received an opinion of nationally recognized
independent counsel to the Partnership experienced in such matters to the
effect that (A) such successor entity will be treated as a "partnership" for
United States federal income tax purposes and not as an association or a
publicly traded partnership taxable as a corporation, (B) such merger,
consolidation, amalgamation or replacement will not cause the Trust to be
classified as an association or a publicly traded partnership taxable as a
corporation for United States federal income tax purposes, (C) following such
merger, consolidation, amalgamation or replacement, the Company and such
successor entity will be in compliance with the 1940 Act without registering
thereunder as an investment company, and (D) such merger, consolidation,
amalgamation or replacement will not adversely affect the limited liability of
the Holders of the Partnership Preferred Securities and (viii) the Company
guarantees the obligations of such successor entity under the Partnership
Successor Securities at least to the extent provided by the Partnership
Guarantee.
ARTICLE XII
TRANSFERS OF INTERESTS BY PARTNERS
Section 12.1 TRANSFER OF INTERESTS.
(a) Partnership Preferred Securities shall be freely transferable
by a Holder.
(b) Except as provided in the next sentence, the General Partner
may not assign or transfer its Interest in the Partnership in whole or in part
unless, prior to such assignment or transfer, the General Partner has obtained
the consent of the Holders of not less than 66-2/3% in Liquidation Preference
of the Partnership Preferred Securities. The General Partner may assign or
transfer its Interest in the Partnership without such consent only to an entity
that is the survivor of a merger or consolidation of the General Partner in a
transaction that meets the requirements of Section 11.11 and only if prior to
such assignment or transfer the Company has received an opinion of nationally
recognized independent tax counsel to the Partnership experienced in such
matters to the effect that after such assignment or transfer the Partnership
will continue to be treated as a partnership for United States federal income
tax purposes and will not be treated as an association or a publicly traded
partnership taxable as a corporation. "Permitted Successor" shall mean an
entity that is an assignee or transferee of the Interest of the General Partner
as permitted by this Section 12.1(b). The admission of a Permitted Successor
as a general partner of the Partnership shall be effective upon the filing of
an amendment to the Certificate with the Secretary of State of the State of
Delaware which indicates that the Permitted Successor has been admitted as a
general partner of the Partnership. If the General Partner assigns its entire
Interest, the General Partner shall cease to be a general partner of the
Partnership simultaneously with the admission of the Permitted Successor as a
general partner of the Partnership. Any such Permitted Successor is hereby
authorized to and shall continue the business of the Partnership without
dissolution.
26
<PAGE> 32
(c) Except as provided above, no Interest shall be transferred, in
whole or in part, except in accordance with the terms and conditions set forth
in this Agreement. Any transfer or purported transfer of any Interest not made
in accordance with this Agreement shall be null and void.
Section 12.2 TRANSFER OF L.P. CERTIFICATES. The General Partner
shall provide for the registration of L.P. Certificates and of transfers of
L.P. Certificates. Upon surrender for registration of transfer of any L.P.
Certificate, the General Partner shall cause one or more new L.P. Certificates
to be issued in the name of the designated transferee or transferees. Every
L.P. Certificate surrendered for registration of transfer shall be accompanied
by a written instrument of transfer in form satisfactory to the General Partner
duly executed by the Partnership Preferred Security Holder or his or her
attorney duly authorized in writing. Each L.P. Certificate surrendered for
registration of transfer shall be canceled by the General Partner. A
transferee of an L.P. Certificate shall be admitted to the Partnership as a
Limited Partner, shall become bound by this Agreement and shall be entitled to
the rights and subject to the obligations of a Partnership Preferred Security
Holder hereunder upon the receipt by the transferee of an L.P. Certificate,
which receipt shall be deemed to constitute a request by such transferee that
the books and records of the Partnership reflect such transferee's admission as
a limited partner. The transferor of an L.P. Certificate, in whole, shall
cease to be a Limited Partner at the time that the transferee of such L.P.
Certificate is admitted to the Partnership as a Limited Partner in accordance
with this Section 12.2.
Section 12.3 DEFINITIVE L.P. CERTIFICATES; PERSONS DEEMED
PARTNERSHIP PREFERRED SECURITY HOLDERS.
(a) Unless and until the Partnership issues a global L.P.
Certificate pursuant to Section 12.4(a), the Partnership shall only issue
definitive L.P. Certificates to the Partnership Preferred Security Holders.
(b) The Partnership may treat the Person in whose name any L.P.
Certificate shall be registered on the books and records of the Partnership as
the sole holder of such L.P. Certificate and of the Partnership Preferred
Securities represented by such L.P. Certificate for purposes of receiving
Distributions and for all other purposes whatsoever (including without
limitation, tax returns and information reports) and, accordingly, shall not be
bound to recognize any equitable or other claim to or interest in such L.P.
Certificate or in the Partnership Preferred Securities represented by such L.P.
Certificate on the part of any other Person, whether or not the Partnership
shall have actual or other notice thereof.
Section 12.4 BOOK-ENTRY PROVISIONS.
(a) General. The provisions of this Section 12.4 shall apply only
in the event that the Partnership Preferred Securities are distributed to the
Holders of Trust Securities in connection with the involuntary or voluntary
dissolution, winding-up or liquidation of the Trust as a result of the
occurrence of a Trust Special Event. Upon the occurrence of such event, a
global L.P. Certificate representing the Book-Entry Interests shall be
delivered to DTC, the initial Clearing Agency, by, or on behalf of, the
Partnership and any previously issued and still outstanding definitive L.P.
Certificates shall be of no further force and effect. The global L.P.
Certificate shall initially be registered on the books and records of the
Partnership in the name of Cede & Co., the nominee of DTC, and no Holder of a
Partnership Preferred Security will receive a new definitive L.P. Certificate
representing such Holder's interests in such L.P. Certificate, except as
provided in Section 12.4(c). In connection with the involuntary or voluntary
dissolution, winding-up or liquidation of the Trust as a result of the
occurrence of a Trust Special Event, Cede & Co., the nominee of DTC, shall
automatically be admitted to the Partnership as a Limited Partner. Receipt of
the global L.P. Certificate shall be deemed to constitute a request by Cede &
Co., the nominee of DTC, that the books and records of the Partnership reflect
its admission as a Limited Partner. Unless and until new definitive, fully
registered L.P. Certificates (the "Definitive L.P. Certificates") have been
issued to the Partnership Preferred Security Owners pursuant to Section
12.4(c):
(i) The provisions of this Section shall be in full force
and effect;
27
<PAGE> 33
(ii) The Partnership, the General Partner and any Special
Representative shall be entitled to deal with the Clearing Agency for
all purposes of this Agreement (including the payment of
Distributions, Redemption Price and liquidation proceeds on the L.P.
Certificates and receiving approvals, votes or consents hereunder) as
the Partnership Preferred Security Holder and the sole holder of the
L.P. Certificates and shall have no obligation to the Partnership
Preferred Security Owners;
(iii) None of the Partnership, the Trust, the General
Partner, any Special Representative or any agents of any of the
foregoing shall have any liability or responsibility for any aspect of
the records relating to or payments made on account of beneficial
ownership interests in a global L.P. Certificate for such beneficial
ownership interests or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests; and
(iv) Except as provided in Section 12.4(c) below, the
Partnership Preferred Security Owners will not be entitled to receive
physical delivery of the Partnership Preferred Securities in
definitive form and will not be considered Holders thereof for any
purpose under this Agreement, and no global L.P. Certificate
representing Partnership Preferred Securities shall be exchangeable,
except for another global L.P. Certificate of like denomination and
tenor to be registered in the name of DTC or Cede & Co., or to a
successor Depositary or its nominee. Accordingly, each Partnership
Preferred Security Owner must rely on the procedures of DTC or if such
person is not a Participant, on the procedures of the Participant
through which such person owns its interest to exercise any rights of
a Holder under the Agreement.
(b) NOTICES TO CLEARING AGENCY. Whenever a notice or other
communication to the Partnership Preferred Security Holders is required under
this Agreement, unless and until Definitive L.P. Certificates shall have been
issued to the Partnership Preferred Security Owners pursuant to Section
12.4(c), the General Partner and any Special Representative shall give all such
notices and communications specified herein to be given to the Partnership
Preferred Security Holders to the Clearing Agency, and shall have no
obligations to the Partnership Preferred Security Owners.
(c) DEFINITIVE L.P. CERTIFICATES. Definitive L.P. Certificates
shall be prepared by the Partnership and exchangeable for the global L.P.
Certificate or L.P. Certificates if and only if (i) the Depositary notifies the
Company that it is unwilling or unable to continue its services as a securities
depositary and no successor depositary shall have been appointed, (ii) the
Depositary, at any time, ceases to be a clearing agency registered under the
Exchange Act at such time as the Depositary is required to be so registered to
act as such depositary and no successor depositary shall have been appointed,
or (iii) the Company, in its sole discretion, determines that such global L.P.
Certificate shall be so exchangeable. Upon surrender of the global L.P.
Certificate or L.P. Certificates representing the Book- Entry Interests by the
Clearing Agency, accompanied by registration instructions, the General Partner
shall cause Definitive L.P. Certificates to be delivered to Partnership
Preferred Security Owners in accordance with the instructions of the Clearing
Agency. Neither the General Partner nor the Partnership shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Any Person receiving a
Definitive L.P. Certificate in accordance with this Section 12.4 shall be
admitted to the Partnership as a Limited Partner upon receipt of such
Definitive L.P. Certificate and shall be registered on the books and records of
the Partnership as a Partnership Preferred Security Holder. The Clearing
Agency or the nominee of the Clearing Agency, as the case may be, shall cease
to be a Limited Partner under this Section 12.4(c) at the time that at least
one additional Person is admitted to the Partnership as a Limited Partner in
accordance herewith. The Definitive L.P. Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as may be
required by any national securities exchange on which Partnership Preferred
Securities may be listed and is reasonably acceptable to the General Partner,
as evidenced by its execution thereof.
28
<PAGE> 34
Section 12.5 REGISTRAR, TRANSFER AGENT AND PAYING AGENT.
(a) The General Partner will act as Registrar, Transfer Agent and
Paying Agent for the Partnership Preferred Securities for so long as the
Partnership Preferred Securities are held by the Trust or, if the Trust is
liquidated in connection with a Trust Special Event, for so long as the
Partnership Preferred Securities remain in book- entry only form.
(b) Except in such case where the General Partner shall act as
Registrar or Paying Agent pursuant to Section 12.5(a) hereof, the Partnership
shall maintain in the Borough of Manhattan, City of New York, State of New York
(i) an office or agency where Partnership Preferred Securities may be presented
for registration of transfer or for exchange ("Registrar") and (ii) an office
or agency where Partnership Preferred Securities may be presented for payment
("Paying Agent"). The Registrar shall keep a register of the Partnership
Preferred Securities and of their transfer and exchange. The Partnership may
appoint the Registrar and the Paying Agent and may appoint one or more
co-registrars and one or more additional paying agents in such other locations
as it shall determine. The term "Paying Agent" includes any additional paying
agent. The Partnership may change any Paying Agent, Registrar or co-registrar
without prior notice to any Holder. If the Partnership fails to appoint or
maintain another entity as Registrar or Paying Agent, the General Partner shall
act as such.
(c) Registration of transfers of Partnership Preferred Securities
shall be effected without charge by or on behalf of the Partnership, but upon
payment (with the giving of such indemnity as the Partnership or the General
Partner may require) in respect of any tax or other governmental charges that
may be imposed.
(d) The Partnership will not be required to register or cause to
be registered the transfer of Partnership Preferred Securities after such
Partnership Preferred Securities have been called for redemption.
ARTICLE XIII
WITHDRAWAL, DISSOLUTION;
LIQUIDATION AND DISTRIBUTION OF ASSETS
Section 13.1 WITHDRAWAL OF PARTNERS. The General Partner shall
not at any time retire or withdraw from the Partnership except as otherwise
permitted hereunder. If the General Partner retires or withdraws in
contravention of this Section 13.1, it shall indemnify, defend and hold
harmless the Partnership and the other Partners from and against any losses,
expenses, judgments, fines, settlements or damages suffered or incurred by the
Partnership or such other Partners arising out of or resulting from such
retirement or withdrawal.
Section 13.2 DISSOLUTION OF THE PARTNERSHIP.
(a) The Partnership shall not be dissolved by the admission of
Partners in accordance with the terms of this Agreement. The death,
withdrawal, bankruptcy or dissolution of a Limited Partner, or the occurrence
of any other event which terminates the Interest of a Limited Partner in the
Partnership, shall not, in and of itself, cause the Partnership to be dissolved
and its affairs wound up. To the fullest extent permitted by applicable law,
upon the occurrence of any such event, the General Partner may, without any
further act, vote on approval of any Partner, admit any Person to the
Partnership as an additional or substitute limited partner in the Partnership,
which admission shall be effective as of the date of the occurrence of such
event, and the business of the Partnership shall be continued without
dissolution.
(b) The Partnership shall be dissolved and its affairs shall be
wound up upon the earliest to occur of any of the following events:
(i) upon the bankruptcy, insolvency or dissolution of the
General Partner;
29
<PAGE> 35
(ii) upon the assignment by the General Partner of its
entire interest in the Partnership when the assignee is not admitted
to the Partnership as a general partner of the Partnership in
accordance with this Agreement, or the filing of a certificate of
dissolution or its equivalent with respect to the General Partner, or
the revocation of the General Partner's charter and the expiration of
90 days after the date of notice to the General Partner of revocation
without a reinstatement of its charter, or if any other event occurs
that causes the General Partner to cease to be a general partner of
the Partnership under the Partnership Act, unless the business of the
Partnership is continued in accordance with the Partnership Act;
(iii) the Partnership has redeemed or otherwise purchased
all of the Partnership Preferred Securities;
(iv) the entry of a decree of judicial dissolution under
Section 17-802 of the Act; or
(v) the written consent of all Partners.
(c) Upon dissolution of the Partnership, the Liquidator shall
promptly notify the Partners of such dissolution.
Section 13.3 LIQUIDATION.
(a) In the event of the dissolution of the Partnership for any
reason, the General Partner (or, if the Partnership is dissolved pursuant to
Section 13.2(b)(i) or (ii), then a liquidating agent appointed by Holders of
not less than 66 2/3% in Liquidation Preference of the Partnership Preferred
Securities (the General Partner or such Person so appointed is hereinafter
referred to as the "Liquidator")) shall commence to wind up the affairs of the
Partnership and to liquidate the Partnership's assets; provided, however, that
a reasonable time shall be allowed for the orderly liquidation of the assets of
the Partnership and the satisfaction of liabilities to creditors so as to
enable the Partners to minimize the normal losses attendant upon liquidation.
The Partners shall continue to share all income, losses and distributions
during the period of liquidation in accordance with Articles IV and V. Subject
to the provisions of this Article XIII, the Liquidator shall have full right
and unlimited discretion to determine the time, manner and terms of any sale or
sales of Partnership property pursuant to such liquidation, giving due regard
to the activity and condition of the relevant market and general financial and
economic conditions.
(b) The Liquidator shall have all of the rights and powers with
respect to the assets and liabilities of the Partnership in connection with the
liquidation and termination of the Partnership that the General Partner would
have with respect to the assets and liabilities of the Partnership during the
term of the Partnership, and the Liquidator is hereby expressly authorized and
empowered to execute any and all documents necessary or desirable to effectuate
the liquidation and termination of the Partnership and the transfer of any
assets.
(c) Notwithstanding the foregoing, a Liquidator that is not a
General Partner shall not, by virtue of acting in such capacity, be deemed a
Partner in this Partnership and shall not have any of the economic interests in
the Partnership of a Partner; and such Liquidator may be compensated for its
services to the Partnership at normal customary and competitive rates for its
services to the Partnership as reasonably determined by all the Limited
Partners.
Section 13.4 DISTRIBUTION IN LIQUIDATION. The proceeds of
liquidation shall be applied in the following order of priority (and without
regard to the non-mandatory provisions of Section 17-804 of the Act):
(i) first, to creditors of the Partnership, including
Partners who are creditors, to the extent otherwise permitted by law,
in satisfaction of the liabilities of the Partnership (whether by
payment or the making of reasonable provisions for payment thereof),
other than liabilities for distributions (including Distributions) to
Partners;
30
<PAGE> 36
(ii) second, following any allocations required under
Section 4.2(e) of the Agreement, to the Limited Partners, an amount
equal to the aggregate liquidation preference of their Partnership
Preferred Securities, plus the amount of Distributions (including any
Compounded Distributions) that are accrued and unpaid as of the date
of such liquidating distribution; and
(iii) thereafter, to the General Partner.
Section 13.5 RIGHTS OF LIMITED PARTNERS. Each Limited Partner
shall look solely to the assets of the Partnership for all distributions with
respect to the Partnership and such Partner's capital contribution (including
returns thereof), and such Partner's share of profits or losses thereof, and
shall have no recourse therefor (upon dissolution or otherwise) against the
General Partner, except under the Partnership Guarantee. No Partner shall have
any right to demand or receive property other than cash upon dissolution and
termination of the Partnership.
Section 13.6 TERMINATION. The Partnership shall terminate when
all of the assets of the Partnership shall have been disposed of and the assets
shall have been distributed as provided in Section 13.4 and the Liquidator has
executed and caused to be filed a certificate of cancellation of the
Partnership.
ARTICLE XIV
AMENDMENTS AND MEETINGS
Section 14.1 AMENDMENTS. Except as provided by Section 3.3(b) and
Section 6.2(i), this Agreement may be amended by, and only by, a written
instrument executed by the General Partner without the consent of any Limited
Partner; provided, however, that no amendment shall be made, and any such
purported amendment shall be void and ineffective, to the extent the result
thereof would be to (A) cause the Partnership to be treated for United States
federal income tax purposes as an association or a publicly traded partnership
taxable as a corporation, (B) require the Partnership to register under the
1940 Act or (C) materially adversely affect the rights, privileges or
preferences of the Partnership Preferred Securities. Notwithstanding any
provision to the contrary, in the event of (i) a liquidation of the Trust for
any reason or (ii) any other distribution which effectively causes Partnership
Preferred Securities to be distributed to Holders of Trust Preferred
Securities, the General Partner may amend this Agreement without the consent of
the Limited Partners to provide for (A) orderly dissemination, purchase, sale,
exchange and replacement of such Partnership Preferred Securities, (B) all
other matters to the extent required by or desirable under then applicable law
and (C) such other matters reasonably incidental or related thereto; provided,
however, that no such amendment may materially adversely affect the rights,
privileges, or preferences of the Partnership Preferred Securities without the
consent of a majority in interest of the Partners so affected.
Section 14.2 AMENDMENT OF CERTIFICATE. In the event this
Agreement shall be amended pursuant to Section 14.1, the General Partner shall
amend the Certificate to reflect such change if it deems such amendment of the
Certificate to be necessary or appropriate.
Section 14.3 MEETINGS OF PARTNERS.
(a) Meetings of the Limited Partners who are Holders may be called
at any time by the General Partner to consider and act on any matter on which
Limited Partners are entitled to act under the terms of this Agreement or the
Act. The General Partner shall call a meeting of Holders if directed to do so
by Holders of no less than 10% in Liquidation Preference as permitted by this
Agreement. Such direction shall be given by delivering to the General Partner
a request in writing stating that the signing Limited Partners desire to call a
meeting and indicating the general or specific purpose for which the meeting is
to be called. Any Limited Partners calling a meeting shall specify in writing
the L.P. Certificates held by the Limited Partners exercising the right to call
a meeting and only those specified Interests shall be counted for purposes of
determining whether the required percentage
31
<PAGE> 37
set forth in the second sentence of this paragraph has been met. Except to the
extent otherwise provided in this Agreement, the following provisions shall
apply to meetings of Partners.
(b) Notice of any such meeting shall be given to all Limited
Partners having a right to vote thereat not less than seven Business Days nor
more than 60 days prior to the date of such meeting. Each such notice shall
set forth the date, time and place of the meeting, a description of any matter
on which Holders are entitled to vote and instructions for the delivery of
proxies or written consents.
(c) Any action that may be taken at a meeting of the Limited
Partners may be taken without a meeting if a consent in writing setting forth
the action so taken is signed by Limited Partners owning not less than the
minimum Interests that would be necessary to authorize or take such action at a
meeting in which all Limited Partners having a right to vote thereon were
present and voting. Prompt notice of the taking of action without a meeting
shall be given to the Limited Partners entitled to vote who have not consented
in writing. The General Partner may provide that any written ballot submitted
to the Limited Partners for the purpose of taking any action without a meeting
shall be returned to the Partnership within a specified time.
(d) Each Partner may authorize any Person to act for it by proxy
on all matters as to which a Partner is entitled to participate, including
waiving notice of any meeting, or voting or participating at a meeting. Every
proxy must be signed by the Partner or its attorney-in-fact. No proxy shall be
valid after the expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure of the
Partner executing it. Except as otherwise provided herein, or pursuant to
Section 14.3(f), all matters relating to the giving, voting or validity of
proxies shall be governed by the General Corporation Law of the State of
Delaware relating to proxies, and judicial interpretations thereunder, as if
the Partnership were a Delaware corporation and the Limited Partners were
stockholders of a Delaware corporation.
(e) Each meeting of Partners shall be conducted by the General
Partner or by such other Person that the General Partner may designate.
(f) The General Partner may establish all other reasonable
procedures relating to meetings of Limited Partners or the giving of written
consents, in addition to those expressly provided, including notice of time,
place or purpose of any meeting at which any matter is to be voted on by any
Partners, waiver of any such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements, voting in person or by
proxy or any other matter with respect to the exercise of any such right to
vote.
ARTICLE XV
MISCELLANEOUS
Section 15.1 NOTICES. All notices provided for in this Agreement
shall be in writing, and shall be delivered or mailed by first class or
registered or certified mail or, with respect to the Partnership and General
Partner, telecopied, as follows:
(a) if given to the Partnership, in care of the General Partner at
the Partnership's mailing address set forth below:
Enron Corp.
1400 Smith Street
Houston, Texas 77002
Attention: Treasury Department
32
<PAGE> 38
(b) if given to the General Partner, at its mailing address set
forth below:
Enron Corp.
1400 Smith Street
Houston, Texas 77002
Attention: Treasury Department
(c) if given to any other Partner at the address set forth on the
books and records of the Partnership.
Section 15.2 POWER OF ATTORNEY. Each Holder of a Partnership
Preferred Security does hereby constitute and appoint the General Partner, and
if applicable, any Special Representative appointed pursuant to Section
6.2(h)(i) of this Agreement, as its true and lawful representative and
attorney-in-fact, in its name, place and stead to make, execute, sign, deliver
and file (a) any amendment of the Certificate required because of an amendment
of this Agreement or in order to effect any change in the Partnership, (b) this
Agreement, (c) any amendments to this Agreement and (d) all such other
instruments, documents and certificates which from time to time may be required
by the laws of the United States of America, the State of Delaware or any other
jurisdiction, or any political subdivision or agency thereof, to effectuate,
implement and continue the valid and subsisting existence of the Partnership or
to dissolve the Partnership for any other purpose consistent with this
Agreement and the transactions contemplated hereby.
The power of attorney granted hereby is coupled with an interest and
shall (a) survive and not be affected by the subsequent death, incapacity,
disability, dissolution, termination, or bankruptcy of the Holder granting the
same or the transfer of all or any portion of such Holder's Interest and (b)
extend to such Holder's successors, assigns and legal representatives.
Section 15.3 ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement among the parties. It supersedes any prior agreement or
understandings among them, and it may not be modified or amended in any manner
other than as set forth herein.
Section 15.4 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE
LAW OF THE STATE OF DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY
SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
Section 15.5 EFFECT. Except as herein otherwise specifically
provided, this Agreement shall be binding upon and inure to the benefit of the
parties and their legal representatives, successors and assigns.
Section 15.6 PRONOUNS AND NUMBER. Wherever from the context it
appears appropriate, each term stated in either the singular or the plural
shall include the singular and the plural, and pronouns stated in either the
masculine, feminine or neuter shall include the masculine, feminine and neuter.
Section 15.7 CAPTIONS. Captions, headings, and subheadings
contained in this Agreement are included for convenience and identification
purposes only and in no way define, limit or extend the scope or intent of this
Agreement or any provision herein.
Section 15.8 PARTIAL ENFORCEABILITY. If any provision of this
Agreement, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Agreement, or the application of
such provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
Section 15.9 COUNTERPARTS. This Agreement may contain more than
one counterpart of the signature page and this Agreement may be executed by the
affixing of the signature of each of the Partners to one of such counterpart
signature pages. All of such counterpart signature pages shall be read as
though one, and they shall have the same force and effect as though all of the
signers had signed a single signature page.
33
<PAGE> 39
Section 15.10 WAIVER OF PARTITION. Each Partner hereby irrevocably
waives any and all rights (if any) that such Partner may have to maintain any
action for partition of any of the Partnership's property.
Section 15.11 REMEDIES. The failure of any party to seek redress
for violation of, or to insist upon the strict performance of, any provision of
this Agreement shall not prevent a subsequent act, which would have originally
constituted a violation, from having the effect of an original violation. The
rights and remedies provided by this Agreement are cumulative and the use of
any one right or remedy by any party shall not preclude or waive its right to
use any or all other remedies. Said rights and remedies are given in addition
to any other rights the parties may have by law, statute, ordinance or
otherwise.
34
<PAGE> 40
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
GENERAL PARTNER:
ENRON CORP.
a Delaware corporation
By: /s/ William D. Gathmann
----------------------------------
Name: William D. Gathmann
Title: Vice President, Finance
and Treasurer
INITIAL LIMITED PARTNER:
Organizational Limited Partner, Inc.
By: /s/ William D. Gathmann
----------------------------------
Name: William D. Gathmann
Title: Vice President
35
<PAGE> 41
ANNEX A
FORM OF L.P. CERTIFICATE
[IF THE PARTNERSHIP PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE
INSERT: This Partnership Preferred Security is a Global Certificate within the
meaning of the Partnership Agreement hereinafter referred to and is registered
in the name of The Depository Trust Company (the "Depositary") or a nominee of
the Depositary. This Partnership Preferred Security is exchangeable for
Partnership Preferred Securities registered in the name of a person other than
the Depositary or its nominee only in the limited circumstances described in
the Partnership Agreement and no transfer of this Partnership Preferred
Security (other than a transfer of this Partnership Preferred Security as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Partnership Preferred Security is presented by an
authorized representative of The Depository Trust Company (55 Water Street, New
York, New York), a New York corporation, to the Partnership or its agent for
registration of transfer, exchange or payment, and any Partnership Preferred
Security issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of the Depositary and any payment
hereon is made to Cede & Co. or such other entity as is requested by an
authorized representative of the Depositary, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]
A-1
<PAGE> 42
PS-1 [ ]
Certificate Evidencing Partnership Preferred Securities
of
ENRON PREFERRED FUNDING, L.P.
8.30% Partnership Preferred Securities
(liquidation amount $25 per Partnership Preferred Security)
ENRON PREFERRED FUNDING, L.P., a limited partnership formed under the
laws of the State of Delaware (the "Partnership"), hereby certifies that The
Chase Manhattan Bank, a property trustee pursuant to the Amended and Restated
Declaration of Trust of Enron Capital Trust I, dated November 18, 1996 (the
"Holder") is the registered owner of ___________ preferred securities of
the Partnership representing limited partner interests in the Partnership
designated the 8.30% Partnership Preferred Securities (liquidation amount $25
per Partnership Preferred Security) (the "Partnership Preferred Securities").
The Partnership Preferred Securities are freely transferable on the books and
records of the Partnership, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer.
The designation, rights, powers, privileges, restrictions, preferences and
other terms and provisions of the Partnership Preferred Securities represented
hereby are set forth in, issued under and shall in all respects be subject to
the provisions of the Amended and Restated Agreement of Limited Partnership
dated as of November 21, 1996, as the same may be amended from time to time
(the "Partnership Agreement"). Capitalized terms used herein but not defined
shall have the meaning given them in the Partnership Agreement. The Holder is
entitled to the benefits of the Partnership Guarantee to the extent provided
therein. The Partnership will provide a copy of the Partnership Agreement and
the Partnership Guarantee to a Holder without charge upon written request to
the Partnership at its principal place of business.
Upon receipt of this certificate, the Holder is admitted to the
Partnership as a Limited Partner, is bound by the Partnership Agreement and is
entitled to the benefits thereunder. Each Holder of a Partnership Preferred
Security, by acceptance of this Certificate and each Certificate owner, by
acquisition of a beneficial interest in a Certificate, agrees to treat the
Debentures, and any other Affiliate Investment Instruments that are treated as
debt instruments by the relevant Investment Affiliate and by the Partnership,
as indebtedness for United States federal income tax purposes.
A-2
<PAGE> 43
IN WITNESS WHEREOF, the Partnership has executed this certificate this
____ day of November, 1996.
ENRON PREFERRED FUNDING, L.P.
By: ENRON CORP.,
as General Partner
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
(See reverse for additional terms)
A-3
<PAGE> 44
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Partnership Preferred Security will be
fixed at a rate per annum of 8.30% of the stated liquidation amount of $25 per
Partnership Preferred Security. Distributions not paid on the scheduled
payment date will accumulate and compound quarterly (to the extent permitted by
applicable law) at the rate of 8.30 % per annum. The term "Distributions" as
used herein shall mean ordinary cumulative distributions in respect of each
Fiscal Period together with any such Compounded Distributions. Distributions
on the Partnership Preferred Securities will only be made to the extent that
the Partnership has funds legally available for the payment of such
distributions. Amounts available to the Partnership for distribution to the
holders of the Partnership Preferred Securities will be limited to payments
received by the Partnership from the Company and certain wholly owned
subsidiaries on the Affiliate Investment Instruments or from the Company on the
Partnership Guarantee or on the Eligible Debt Securities. Distributions on the
Partnership Preferred Securities will be paid only if, as and when declared in
the sole discretion of the Company, as the General Partner of the Partnership.
The amount of Distributions payable for any period will be computed for any
full quarterly Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full quarterly Distribution
period on the basis of the actual number of days elapsed in a 90-day quarter.
Except as otherwise described herein, distributions on the Partnership
Preferred Securities will be cumulative, will accrue from the date of initial
issuance and will be payable quarterly in arrears, on March 31, June 30,
September 30 and December 31 of each year, commencing on December 31, 1996, if,
as and when declared by the General Partner in its sole discretion. If the
Trust Preferred Securities (or, if the Trust is liquidated, the Partnership
Preferred Securities) are in book-entry only form, Distributions will be
payable to the Holders of record of Partnership Preferred Securities as they
appear on the books and records of the Partnership on the relevant record
dates, which will be one Business Day prior to the relevant payment dates. If
the Trust or the Property Trustee is the Holder of the Partnership Preferred
Securities, all distributions of cash shall be made by wire transfer of same
day funds to such Holder by 10:00 a.m., New York City time, on the applicable
Distribution Payment Date. Distributions payable on any Partnership Preferred
Securities that are not punctually paid on any Distribution Payment Date will
cease to be payable to the Person in whose name such Partnership Preferred
Securities are registered on the relevant record date, and such Distribution
will instead be payable to the Person in whose name such Partnership Preferred
Securities are registered on the record date for payment of such defaulted or
accrued Distribution. If the Trust Preferred Securities (or, if the Trust is
liquidated, the Partnership Preferred Securities) are not in book-entry only
form, the relevant record dates shall be the 15th day of the month of the
relevant payment dates. In the event that any date on which distributions are
payable is not a Business Day, payment of such Distribution shall be made on
the next succeeding day which is a Business Day (without any interest or other
payment in respect of any such delay) except that, if such Business Day falls
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day (without any reduction in interest or other
amounts in respect of any such early payment).
The Partnership Preferred Securities shall be redeemable as provided
in the Partnership Agreement.
A-4
<PAGE> 45
---------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Partnership
Preferred Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Partnership Preferred Security Certificate on the books
of the Partnership. The agent may substitute another to act for him or her.
Date:
-------------------------
Signature:
--------------------
(Sign exactly as your name appears on the other side of this
Partnership Preferred Security Certificate)
A-5
<PAGE> 1
EXHIBIT 4.4
================================================================================
TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
ENRON CAPITAL TRUST I
DATED AS OF NOVEMBER 21, 1996
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
------------------------------
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
--------------------------------
SECTION 2.2 Lists of Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
------------------------------
SECTION 2.3 Reports by the Trust Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
------------------------------------------------
SECTION 2.4 Periodic Reports to Trust Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . . . 5
-----------------------------------------------------
SECTION 2.5 Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
------------------------------------------------
SECTION 2.6 Events of Default; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
-------------------------
SECTION 2.7 Event of Default; Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
------------------------
SECTION 2.8 Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
---------------------
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Trust Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . 5
----------------------------------------------------------
SECTION 3.2 Certain Rights of Trust Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 7
---------------------------------------------------
SECTION 3.3 Not Responsible for Recitals or Issuance of Trust Preferred Securities Guarantee . . . . . . . . . . . 9
--------------------------------------------------------------------------------
ARTICLE IV
TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Trust Preferred Guarantee Trustee; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
----------------------------------------------
SECTION 4.2 Appointment, Removal and Resignation of Trust Preferred Guarantee Trustee . . . . . . . . . . . . . . 9
-------------------------------------------------------------------------
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
---------
SECTION 5.2 Waiver of Notice and Demand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
---------------------------
SECTION 5.3 Obligations Not Affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
------------------------
SECTION 5.4 Rights of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
-----------------
SECTION 5.5 Guarantee of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
--------------------
SECTION 5.6 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
-----------
SECTION 5.7 Independent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
-----------------------
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
--------------------------
SECTION 6.2 Ranking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
-------
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE VII
TERMINATION
SECTION 7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
-----------
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
-----------
SECTION 8.2 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
---------------
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
----------------------
SECTION 9.2 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
----------
SECTION 9.3 Merger of the Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
-----------------------
SECTION 9.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
-------
SECTION 9.5 Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
-------
SECTION 9.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
-------------
</TABLE>
ii
<PAGE> 4
TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
This TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT (the "Trust
Preferred Securities Guarantee"), dated as of November 21, 1996, is executed
and delivered by Enron Corp., a Delaware corporation (the "Guarantor" or the
"Company"), and The Chase Manhattan Bank, a New York banking corporation, as
trustee (the "Trust Preferred Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Trust Preferred Securities
(as defined herein) of Enron Capital Trust I, a Delaware statutory business
trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of November 18, 1996, among the trustees of the Issuer
named therein, Enron Corp., as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof 8,000,000 Trust Originated Preferred Securities,
having an aggregate liquidation amount of $200,000,000, designated the 8.30%
Trust Originated Preferred Securities (the "Trust Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Trust Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Trust Preferred Securities Guarantee, to pay to
the Holders of the Trust Preferred Securities the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein and;
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Trust Common Securities Guarantee") in substantially identical
terms to this Trust Preferred Securities Guarantee for the benefit of the
holders of the Trust Common Securities (as defined herein), except that if the
Company is in default on any of its obligations under the Trust Preferred
Securities Guarantee, the Partnership Guarantee, or any Investment Guarantee,
or any default has occurred and is continuing with respect to an Affiliate
Investment Instrument (as defined herein), the rights of holders of the Trust
Common Securities to receive Guarantee Payments under the Trust Common
Securities Guarantee are subordinated to the rights of Holders of Trust
Preferred Securities to receive Guarantee Payments under this Trust Preferred
Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Trust Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Trust Preferred
Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Trust Preferred Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Trust Preferred Securities
Guarantee but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;
(b) capitalized terms used in this Trust Preferred Securities
Guarantee but not otherwise defined herein shall have the
meanings assigned to them in the Declaration or the
Partnership Agreement, as the case may be;
(c) a term defined anywhere in this Trust Preferred Securities
Guarantee has the same meaning throughout;
<PAGE> 5
(d) all references to "the Trust Preferred Securities Guarantee"
or "this Trust Preferred Securities Guarantee" are to this
Trust Preferred Securities Guarantee as modified, supplemented
or amended from time to time;
(e) all references in this Trust Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this
Trust Preferred Securities Guarantee, unless otherwise
specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Trust Preferred Securities Guarantee, unless
otherwise defined in this Trust Preferred Securities Guarantee
or unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice
versa.
"Affiliate" means, with respect to any specified person, any other
person that directly or indirectly controls or is controlled by, or is under
common control with, such specified person.
"Affiliate Investment Instruments" has the meaning set forth in the
Partnership Agreement.
"Business Day" means any day other than a day on which banking
institutions in the City of New York, New York are authorized or required by
any applicable law to close.
"Comparable Equity Interest" shall mean the 8% Cumulative Guaranteed
Monthly Income Preferred Shares of Enron Capital LLC, the 9% Cumulative
Guaranteed Preferred Securities, Series A of Enron Capital Resources, L.P. and
any preferred security hereafter issued by any finance subsidiary of which the
Company is the parent company and the principal purpose of which is to lend the
proceeds of the sale thereof to the Company or to eligible affiliates of the
Company.
"Corporate Trust Office" means the principal trust office of the Trust
Preferred Guarantee Trustee at which, at any particular time, its corporate
trust business shall be administered, which office at the date hereof is
located at 450 West 33rd Street, 15th Floor, New York, New York 10001,
Attention: Global Trust Services.
"Covered Person" means any Holder or beneficial owner of Trust
Preferred Securities.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Trust Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Trust Preferred Securities, to the
extent not paid or made by the Issuer: (i) any accrued and unpaid
Distributions (as defined in the Declaration) that are required to be paid on
such Trust Preferred Securities to the extent the Issuer shall have funds
available therefor, (ii) the redemption price, including all accrued and unpaid
Distributions to the date of redemption (the "Redemption Price") to the extent
the Issuer has funds available therefor, with respect to any Trust Preferred
Securities called for redemption by the Issuer, and (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Issuer (other than in
connection with the distribution of Partnership Preferred Securities to the
Holders as provided in the Declaration), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid Distributions on the Trust
Preferred Securities to the date of payment and (b) the amount of assets of the
Issuer, after satisfaction of all liabilities, remaining available for
distribution to Holders in liquidation of the Issuer (in either case, the
"Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and records
of the Issuer of any Trust Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Trust Preferred
Securities have given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor or any Affiliate of the Guarantor.
2
<PAGE> 6
"Indemnified Person" means the Trust Preferred Guarantee Trustee, any
Affiliate of the Trust Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Trust Preferred Guarantee Trustee.
"Investment Affiliate" means the Company or any corporation,
partnership, limited liability company or other entity (other than the
Partnership or the Trust) that is controlled by the Company and is not an
investment company by reason of Section 3(a) or 3(b) of the 1940 Act.
"Investment Event of Default" means an event of default under an
Affiliate Investment Instrument.
"Majority in liquidation amount of the Trust Preferred Securities"
means, except as provided by the Trust Indenture Act, a vote by Holder(s) of
Trust Preferred Securities, voting separately as a class, of more than 50% of
the liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all Trust
Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the
definition relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary
to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Partnership" means Enron Preferred Funding, L.P.
"Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of November 21, 1996, among
Enron Corp., a Delaware corporation, as general partner, Organizational
Partner, Inc., a Delaware corporation, as initial limited partner and such
other persons who become limited partners as provided therein.
"Partnership Preferred Securities" means those securities representing
limited partnership interests in the Partnership.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever
nature.
"Responsible Officer" means, with respect to the Trust Preferred
Guarantee Trustee, any officer within the Corporate Trust Office of the Trust
Preferred Guarantee Trustee, including any vice president, any assistant vice
president, any secretary, any assistant secretary, the treasurer, any assistant
treasurer or other officer of the Trust Preferred Guarantee Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
3
<PAGE> 7
"Successor Trust Preferred Guarantee Trustee" means a successor Trust
Preferred Guarantee Trustee possessing the qualifications to act as Trust
Preferred Guarantee Trustee under Section 4.1.
"Trust Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Preferred Guarantee Trustee" means The Chase Manhattan Bank, a
national banking association, until a Successor Trust Preferred Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Trust Preferred Securities Guarantee and thereafter means each
such Successor Trust Preferred Guarantee Trustee.
"Trust Securities" means the Trust Common Securities together with the
Trust Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Trust Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be
part of this Trust Preferred Securities Guarantee and shall,
to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Trust
Preferred Securities Guarantee limits, qualifies or conflicts
with the duties imposed by Section 310 to 317, inclusive, of
the Trust Indenture Act, such imposed duties shall control.
SECTION 2.2 Lists of Holders of Securities
(a) The Trust Guarantee Trustee shall preserve in as current a
form as is reasonably practicable the most recent list
available to it of the names and addresses of Holders of Trust
Preferred Securities. If the Trust Guarantee Trustee is not
the Registrar, the Guarantor shall furnish to the Trust
Guarantee Trustee semi-annually on or before the last day of
June and December in each year, and at such other times as the
Trust Guarantee Trustee may request in writing, a list, in
such form and as of such date as the Trust Guarantee Trustee
may reasonably require, containing all the information in the
possession or control of the Registrar, the Guarantor or any
of its Paying Agents other than the Trust Guarantee Trustee as
to the names and addresses of Holders of Trust Preferred
Securities. If there are unregistered securities outstanding,
even if the Trust Guarantee Trustee is the Registrar, the
Company shall furnish to the Trust Guarantee Trustee such a
list containing such information with respect to Holders of
such unregistered securities only.
(b) The Trust Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b)
of the Trust Indenture Act.
SECTION 2.3 Reports by the Trust Preferred Guarantee Trustee
Within 60 days after May 15 of each year, the Trust Preferred
Guarantee Trustee shall provide to the Holders of the Trust Preferred
Securities such reports as are required by Section 313 of the Trust Indenture
Act, if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Trust Preferred Guarantee Trustee shall also comply with
the requirements of Section 313(d) of the Trust Indenture Act.
4
<PAGE> 8
SECTION 2.4 Periodic Reports to Trust Preferred Guarantee Trustee
The Guarantor shall provide to the Trust Preferred Guarantee Trustee
such documents, reports and information as required by Section 314 (if any) and
the compliance certificate required by Section 314 of the Trust Indenture Act
in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Trust Preferred Guarantee Trustee
such evidence of compliance with any conditions precedent, if any, provided for
in this Trust Preferred Securities Guarantee that relate to any of the matters
set forth in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section 314(c)(1) may be
given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of Trust Preferred
Securities may, by vote, on behalf of the Holders of all of the Trust Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Trust Preferred Securities Guarantee, but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 2.7 Event of Default; Notice
(a) The Trust Preferred Guarantee Trustee shall, within 90 days
after the occurrence of an Event of Default, transmit by mail,
first class postage prepaid, to the Holders of the Trust
Preferred Securities, notices of all Events of Default
actually known to a Responsible Officer of the Trust Preferred
Guarantee Trustee, unless such defaults have been cured before
the giving of such notice, provided, that, the Trust Preferred
Guarantee Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Trust
Preferred Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders
of the Trust Preferred Securities Trust Preferred Securities.
(b) The Trust Preferred Guarantee Trustee shall not be deemed to
have knowledge of any Event of Default unless the Trust
Preferred Guarantee Trustee shall have received written
notice, or of which a Responsible Officer of the Trust
Preferred Guarantee Trustee charged with the administration of
the Declaration shall have obtained actual knowledge.
SECTION 2.8 Conflicting Interests
The Declaration shall be deemed to be specifically described in this
Trust Preferred Securities Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Trust Preferred Guarantee Trustee
(a) This Trust Preferred Securities Guarantee shall be held by the
Trust Preferred Guarantee Trustee for the benefit of the
Holders of the Trust Preferred Securities, and the Trust
Preferred Guarantee Trustee shall not transfer this Trust
Preferred Securities Guarantee to any Person except a Holder
of Trust Preferred Securities exercising his or her rights
pursuant to Section 5.4(b) or to a
5
<PAGE> 9
Successor Trust Preferred Guarantee Trustee on acceptance by
such Successor Trust Preferred Guarantee Trustee of its
appointment to act as Successor Trust Preferred Guarantee
Trustee. The right, title and interest of the Trust Preferred
Guarantee Trustee shall automatically vest in any Successor
Trust Preferred Guarantee Trustee, and such vesting and
cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered
pursuant to the appointment of such Successor Trust Preferred
Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer
of the Trust Preferred Guarantee Trustee has occurred and is
continuing, the Trust Preferred Guarantee Trustee shall
enforce this Trust Preferred Securities Guarantee for the
benefit of the Holders of the Trust Preferred Securities.
(c) The Trust Preferred Guarantee Trustee, before the occurrence
of any Event of Default and after the curing or waiver of all
Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this
Trust Preferred Securities Guarantee, and no implied covenants
shall be read into this Trust Preferred Securities Guarantee
against the Trust Preferred Guarantee Trustee. In case an
Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6) and is actually known to a
Responsible Officer of the Trust Preferred Guarantee Trustee,
the Trust Preferred Guarantee Trustee shall exercise such of
the rights and powers vested in it by this Trust Preferred
Securities Guarantee, and use the same degree of care and
skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his
or her own affairs.
(d) No provision of this Trust Preferred Securities Guarantee
shall be construed to relieve the Trust Preferred Guarantee
Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct,
except that:
(i) Prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations of the Trust
Preferred Guarantee Trustee shall be
determined solely by the express provisions
of this Trust Preferred Securities Guarantee,
and the Trust Preferred Guarantee Trustee
shall not be liable except for the
performance of such duties and obligations as
are specifically set forth in this Trust
Preferred Securities Guarantee, and no
implied covenants or obligations shall be
read into this Trust Preferred Securities
Guarantee against the Trust Preferred
Guarantee Trustee; and
(B) in the absence of bad faith on the part of
the Trust Preferred Guarantee Trustee, the
Trust Preferred Guarantee Trustee may
conclusively rely, as to the truth of the
statements and the correctness of the
opinions expressed therein, upon any
certificates or opinions furnished to the
Trust Preferred Guarantee Trustee and
conforming to the requirements of this Trust
Preferred Securities Guarantee; but in the
case of any such certificates or opinions
that by any provision hereof are specifically
required to be furnished to the Trust
Preferred Guarantee Trustee, the Trust
Preferred Guarantee Trustee shall be under a
duty to examine the same to determine whether
or not they conform to the requirements of
this Trust Preferred Securities Guarantee;
(ii) The Trust Preferred Guarantee Trustee shall not be
liable for any error of judgment made in good faith
by a Responsible Officer of the Trust Preferred
Guarantee Trustee, unless it shall be proved that the
Trust Preferred Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such
judgment was made;
6
<PAGE> 10
(iii) The Trust Preferred Guarantee Trustee shall not be
liable with respect to any action taken or omitted to
be taken by it in good faith in accordance with the
direction of the Holders of Trust Preferred
Securities relating to the time, method and place of
conducting any proceeding for any remedy available to
the Trust Preferred Guarantee Trustee, or exercising
any trust or power conferred upon the Trust Preferred
Guarantee Trustee under this Trust Preferred
Securities Guarantee; and
(iv) No provision of this Trust Preferred Securities
Guarantee shall require the Trust Preferred Guarantee
Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance
of any of its duties or in the exercise of any of its
rights or powers, if the Trust Preferred Guarantee
Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not
reasonably assured to it under the terms of this
Trust Preferred Securities Guarantee or indemnity,
reasonably satisfactory to the Trust Preferred
Guarantee Trustee, against such risk or liability is
not reasonably assured to it.
SECTION 3.2 Certain Rights of Trust Preferred Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Trust Preferred Guarantee Trustee may
conclusively rely, and shall be fully protected in
acting or refraining from acting upon, any
resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Trust Preferred Securities Guarantee shall be
sufficiently evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Trust
Preferred Securities Guarantee, the Trust Preferred
Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking,
suffering or omitting any action hereunder, the Trust
Preferred Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence
of bad faith on its part, request and conclusively
rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered
by the Guarantor.
(iv) The Trust Preferred Guarantee Trustee shall have no
duty to see to any recording, filing or registration
of any instrument (or any rerecording, refiling or
registration thereof).
(v) The Trust Preferred Guarantee Trustee may, at the
expense of the Sponsor, consult with counsel of its
selection, and the advice or opinion of such counsel
with respect to legal matters 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. Such counsel may be counsel to the
Guarantor or any of its Affiliates and may include
any of its employees. The Trust Preferred Guarantee
Trustee shall have the right at any time to seek
instructions concerning the administration of this
Trust Preferred Securities Guarantee from any court
of competent jurisdiction.
(vi) The Trust Preferred Guarantee Trustee shall be under
no obligation to exercise any of the rights or powers
vested in it by this Trust Preferred Securities
Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Trust
Preferred Guarantee Trustee such security and
indemnity, reasonably satisfactory to the
7
<PAGE> 11
Trust Preferred Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses and
the expenses of the Preferred Guarantee Trustee's
agents, nominees or custodians) and liabilities that
might be incurred by it in complying with such
request or direction, including such reasonable
advances as may be requested by the Trust Preferred
Guarantee Trustee; provided that, nothing contained
in this Section 3.2(a)(vi) shall be taken to relieve
the Trust Preferred Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by
this Trust Preferred Securities Guarantee.
(vii) The Trust Preferred Guarantee Trustee shall not be
bound to make any investigation into the facts or
matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper
or document, but the Trust Preferred Guarantee
Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters
as it may see fit.
(viii) The Trust Preferred Guarantee Trustee may execute any
of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through
agents, nominees, custodians or attorneys, and the
Trust Preferred Guarantee Trustee shall not be
responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care
by it hereunder.
(ix) Any action taken by the Trust Preferred Guarantee
Trustee or its agents hereunder shall bind the
Holders of the Trust Preferred Securities, and the
signature of the Trust Preferred Guarantee Trustee or
its agents alone shall be sufficient and effective to
perform any such action. No third party shall be
required to inquire as to the authority of the Trust
Preferred Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of
this Trust Preferred Securities Guarantee, both of
which shall be conclusively evidenced by the Trust
Preferred Guarantee Trustee or its agent taking such
action.
(x) Whenever in the administration of this Trust
Preferred Securities Guarantee the Trust Preferred
Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Trust
Preferred Guarantee Trustee (i) may request
instructions from the Holders of a Majority in
liquidation amount of the Trust Preferred Securities,
(ii) may refrain from enforcing such remedy or right
or taking such other action until such instructions
are received, and (iii) shall be protected in
conclusively relying on or acting in accordance with
such instructions.
(xi) The Trust Preferred Guarantee Trustee shall not be
liable for any action taken, suffered, or omitted to
be taken by it in good faith and reasonably believed
by it to be authorized or within the discretion or
rights or powers conferred upon it by this Trust
Preferred Securities Guarantee.
(b) No provision of this Trust Preferred Securities Guarantee
shall be deemed to impose any duty or obligation on the Trust
Preferred Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be
illegal, or in which the Trust Preferred Guarantee Trustee
shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive
power or authority available to the Trust Preferred Guarantee
Trustee shall be construed to be a duty.
8
<PAGE> 12
SECTION 3.3 Not Responsible for Recitals or Issuance of Trust Preferred
Securities Guarantee
The recitals contained in this Trust Preferred Securities Guarantee
shall be taken as the statements of the Guarantor, and the Trust Preferred
Guarantee Trustee does not assume any responsibility for their correctness.
The Trust Preferred Guarantee Trustee makes no representation as to the
validity or sufficiency of this Trust Preferred Securities Guarantee.
ARTICLE IV
TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Trust Preferred Guarantee Trustee; Eligibility
(a) There shall at all times be a Trust Preferred Guarantee
Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State
or Territory thereof or of the District of Columbia,
or a corporation or Person permitted by the
Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000),
and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at
least annually, pursuant to law or to the
requirements of the supervising or examining
authority referred to above, then, for the purposes
of this Section 4.1(a)(ii), the combined capital and
surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published.
(b) If at any time the Trust Preferred Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Trust
Preferred Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
(c) If the Trust Preferred Guarantee Trustee has or shall acquire
any "conflicting interest" within the meaning of Section
310(b) of the Trust Indenture Act, the Trust Preferred
Guarantee Trustee and Guarantor shall in all respects comply
with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2 Appointment, Removal and Resignation of Trust Preferred
Guarantee Trustee
(a) Subject to Section 4.2(b), the Trust Preferred Guarantee
Trustee may be appointed or removed without cause at any time
by the Guarantor except during an Event of Default.
(b) The Trust Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Trust
Preferred Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by
such Successor Trust Preferred Guarantee Trustee and delivered
to the Guarantor.
(c) The Trust Preferred Guarantee Trustee appointed to office
shall hold office until a Successor Trust Preferred Guarantee
Trustee shall have been appointed or until its removal or
resignation. The Trust Preferred Guarantee Trustee may resign
from office (without need for prior or subsequent accounting)
by an instrument in writing executed by the Trust Preferred
Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Trust
Preferred Guarantee Trustee has been appointed and has
accepted such appointment by instrument
9
<PAGE> 13
in writing executed by such Successor Trust Preferred
Guarantee Trustee and delivered to the Guarantor and the
resigning Trust Preferred Guarantee Trustee.
(d) If no Successor Trust Preferred Guarantee Trustee shall have
been appointed and accepted appointment as provided in this
Section 4.2 within 60 days after delivery of an instrument of
removal or resignation, the Trust Preferred Guarantee Trustee
resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Trust Preferred
Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper,
appoint a Successor Trust Preferred Guarantee Trustee.
(e) No Trust Preferred Guarantee Trustee shall be liable for the
acts or omissions to act of any Successor Trust Preferred
Guarantee Trustee.
(f) Upon termination of this Trust Preferred Securities Guarantee
or removal or resignation of the Trust Preferred Guarantee
Trustee pursuant to this Section 4.2, and before the
appointment of any Successor Trust Preferred Guarantee Trustee
the Guarantor shall pay to the Trust Preferred Guarantee
Trustee all amounts to which it is entitled to the date of
such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), if, as and when due, regardless of any defense, right of
setoff or counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Guarantor to the Holders or by causing the Issuer
to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Trust
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor
under this Trust Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the
Trust Preferred Securities to be performed or observed by the
Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions, Redemption Price,
Liquidation Distribution or any other sums payable under the
terms of the Trust Preferred Securities or the extension of
time for the performance of any other obligation under,
arising out of, or in connection with, the Trust Preferred
Securities (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or
other
10
<PAGE> 14
sum payable that results from the extension of any interest
payment period on the Partnership Preferred Securities or any
extension of the maturity date of the Partnership Preferred
Securities permitted by the Partnership Agreement);
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant
to the terms of the Trust Preferred Securities, or any action
on the part of the Issuer granting indulgence or extension of
any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets
of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Trust
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a
guarantor, it being the intent of this Section 5.3 that the
obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of the Trust
Preferred Securities have the right to direct the time, method
and place of conducting of any proceeding for any remedy
available to the Trust Preferred Guarantee Trustee in respect
of this Trust Preferred Securities Guarantee or exercising any
trust or power conferred upon the Trust Preferred Guarantee
Trustee under this Trust Preferred Securities Guarantee.
(b) If the Trust Preferred Guarantee Trustee fails to enforce its
rights under the Trust Preferred Securities Guarantee after a
Holder of Trust Preferred Securities has made a written
request, such Holder of Trust Preferred Securities may
institute a legal proceeding directly against the Guarantor to
enforce the Trust Preferred Guarantee Trustee's rights under
this Trust Preferred Securities Guarantee, without first
instituting a legal proceeding against the Issuer, the Trust
Preferred Guarantee Trustee or any other person or entity.
Notwithstanding the foregoing, if the Guarantor has failed to
make a guarantee payment, a Holder of Trust Preferred
Securities may directly institute a proceeding in such
Holder's own name against the Guarantor for enforcement of the
Trust Preferred Securities Guarantee for such payment. The
Guarantor waives any right or remedy to require that any
action be brought first against the Issuer or any other person
or entity before proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
This Trust Preferred Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Trust Preferred Securities against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Trust Preferred
Securities
11
<PAGE> 15
Guarantee; provided, however, that the Guarantor shall not (except to the
extent required by mandatory provisions of law) be entitled to enforce or
exercise any right that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under
this Trust Preferred Securities Guarantee, if, at the time of any such payment,
any amounts are due and unpaid under this Trust Preferred Securities Guarantee.
If any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Trust
Preferred Securities, and that the Guarantor shall be liable as principal and
as debtor hereunder to make Guarantee Payments pursuant to the terms of this
Trust Preferred Securities Guarantee notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Trust Preferred Securities remain outstanding, if for
any distribution period, (a) full distributions on a cumulative basis on any
Trust Preferred Securities have not been paid or declared and set apart for
payment, (b) an Investment Event of Default by any Investment Affiliate in
respect of any Affiliate Investment Instrument has occurred and is continuing,
or (c) the Company is in default of its obligations under the Trust Preferred
Securities Guarantee, the Trust Common Securities Guarantee, the Partnership
Guarantee or any Investment Guarantee, then, during such period (i) 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 (except for dividends or distributions in shares of its
common stock and exchanges of common stock of one class for common stock of
another class), (ii) the Company shall not make any payment or cause any
payment to be made that would result in and shall take such action as shall be
necessary to prevent, the payment of dividends on, any distribution with
respect to, any redemption, purchase or other acquisition of, or any
liquidation payment with respect to, any Comparable Equity Interest, and (iii)
the Company shall not make any guarantee payments with respect to the
foregoing.
SECTION 6.2 Ranking
This Trust Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right
of payment to all other liabilities of the Guarantor, including, without
limitation, the fees, charges, expenses and indemnities due to the Property
Trustee or the Delaware Trustee in respect of the Declaration of Trust, the
Trust Preferred Securities Guarantee and the Affiliate Debenture Guarantee
Agreement, (ii) pari passu with the most senior preferred or preference stock
now or hereafter issued by the Guarantor and with any guarantee now or
hereafter entered into by the Guarantor in respect of any preferred security of
any Affiliate of the Guarantor, and (iii) senior to the Guarantor's common
stock. Any similar guarantee given hereafter by the Company with respect to
Trust Preferred Securities that is silent as to seniority will rank pari passu
with this Trust Preferred Securities Agreement.
12
<PAGE> 16
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Trust Preferred Securities Guarantee shall terminate upon (i)
full payment of the Redemption Price of all Trust Preferred Securities, (ii)
upon the distribution of the Partnership Preferred Securities to the Holders of
all of the Trust Preferred Securities or (iii) upon full payment of the amounts
payable in accordance with the Declaration upon liquidation of the Issuer.
Notwithstanding the foregoing, this Trust Preferred Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder of Trust Preferred Securities must restore payment of any sums
paid under the Trust Preferred Securities or under this Trust Preferred
Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any
Covered Person for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Trust
Preferred Securities Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this
Trust Preferred Securities Guarantee or by law, except that an
Indemnified Person shall be liable for any such loss, damage
or claim incurred by reason of such Indemnified Person's gross
negligence or willful misconduct with respect to such acts or
omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such
information, opinions, reports or statements presented to the
Guarantor by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's
professional or expert competence and who has been selected
with reasonable care by or on behalf of the Guarantor,
including information, opinions, reports or statements as to
the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Trust
Preferred Securities might properly be paid.
SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense incurred without gross negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 8.2 shall survive the termination of
this Trust Preferred Securities Guarantee or the earlier resignation or removal
of the Trust Preferred Guarantee Trustee.
13
<PAGE> 17
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Trust Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees
and representatives of the Guarantor and shall inure to the benefit of the
Holders of the Trust Preferred Securities then outstanding.
SECTION 9.2 Amendments
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Trust Preferred Securities Guarantee may only be amended with the prior
approval of the Holders of at least a Majority in liquidation amount (including
the stated amount that would be paid on redemption, liquidation or otherwise,
plus accrued and unpaid Distributions to the date upon which the voting
percentages are determined) of all the outstanding Trust Preferred Securities.
The provisions of Section 13.2 of the Declaration with respect to meetings of
Holders of the Securities apply to the giving of such approval.
SECTION 9.3 Merger of the Guarantor
The Guarantor covenants that it will not merge or consolidate with any
other corporation or other entity or sell or convey all or substantially all of
its assets to any person (other than such a sale or conveyance to a Subsidiary
or any successor thereto (such a sale or conveyance being called an "Asset
Drop-Down")), unless (i) either the Guarantor shall be the continuing
corporation or the successor corporation or other entity or the person which
acquires by sale or conveyance substantially all the assets of the Guarantor
shall expressly assume the obligations of the Guarantor hereunder, according to
their tenor, and the due and punctual performance and observance of all of the
covenants hereof to be performed or observed by the Guarantor, by instrument in
form satisfactory to the Trust Preferred Securities Guarantee Trustee, executed
and delivered to the Trust Preferred Securities Guarantee Trustee by such
corporation or other entity, and (ii) the Guarantor or such successor
corporation or other entity, as the case may be, shall not, immediately after
such merger or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition. In the event of any Asset
Drop-Down after the date hereof, any subsequent sale or conveyance of assets by
a Subsidiary to which assets were transferred in such Asset Drop-Down will be
deemed to be a sale or conveyance of assets by the Company for purposes of this
provision.
SECTION 9.4 Notices
All notices provided for in this Trust Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Trust Preferred Guarantee Trustee, at the
Trust Preferred Guarantee Trustee's mailing address set forth
below:
The Chase Manhattan Bank
450 West 33rd Street - 15th Floor
New York, New York 10001
Attention: Global Trust Services
Telecopy: (212) 946-8158
(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may
give notice of to the Holders of the Trust Preferred
Securities):
14
<PAGE> 18
Enron Corp.
1400 Smith Street
Houston, Texas 77002
Attention: Treasury Department
Telecopy: (713) 646-3422
(c) If given to any Holder of Trust Preferred Securities, at the
address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 9.5 Benefit
This Trust Preferred Securities Guarantee is solely for the benefit of
the Holders of the Trust Preferred Securities and, subject to Section 3.1(a),
is not separately transferable from the Trust Preferred Securities.
SECTION 9.6 Governing Law
THIS TRUST PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
15
<PAGE> 19
THIS TRUST PREFERRED SECURITIES GUARANTEE is executed as of the day
and year first above written.
ENRON CORP.,
as Guarantor
By: /s/ William D. Gathmann
-------------------------
William D. Gathmann
Vice President and Treasurer
THE CHASE MANHATTAN BANK,
as Trust Preferred Guarantee Trustee
By: /s/ Ronald Halleran
---------------------
Ronald Halleran
Second Vice President
16
<PAGE> 1
EXHIBIT 4.5
================================================================================
PARTNERSHIP GUARANTEE AGREEMENT
ENRON PREFERRED FUNDING, L.P.
DATED AS OF NOVEMBER 21, 1996
================================================================================
<PAGE> 2
PARTNERSHIP GUARANTEE AGREEMENT
This PARTNERSHIP GUARANTEE AGREEMENT, dated as of November 21, 1996,
is executed and delivered by Enron Corp., a Delaware corporation (the "Company"
or the "Guarantor"), for the benefit of the holders from time to time of the
Partnership Preferred Securities (as defined below).
WHEREAS, pursuant to an Amended and Restated Agreement of Limited
Partnership (the "Partnership Agreement"), dated as of the date hereof, of
Enron Preferred Funding, L.P., a Delaware limited partnership (the "Issuer"),
the Issuer may issue a single series of limited partner interests in the Issuer
(the "Partnership Preferred Securities");
WHEREAS, pursuant to the Partnership Agreement, the proceeds received
by the Issuer from the issuance and sale of the Partnership Preferred
Securities will be invested by the Issuer in the Affiliate Investment
Instruments and Eligible Debt Securities (each as defined in the Partnership
Agreement); and
WHEREAS, the Guarantor, as incentive for the Holders (as defined
herein) to purchase Partnership Preferred Securities, desires hereby
irrevocably and unconditionally to agree, to the extent set forth herein, to
pay to the Holders the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Partnership Preferred Securities, which purchase the Guarantor hereby agrees
shall directly or indirectly provide material benefits to the Guarantor, the
Guarantor executes and delivers this Guarantee Agreement for the benefit of the
Holders.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions
As used in this Partnership Guarantee Agreement, the terms set forth
below shall, unless the context otherwise requires, have the following
meanings. Capitalized terms used but not otherwise defined herein shall have
the meanings assigned to such terms in the Partnership Agreement.
"Affiliate" means, with respect to any specified person, any other
person that directly or indirectly controls or is controlled by, or is under
common control with, such specified person.
"Affiliate Investment Instrument" shall have the meaning set forth in
the Partnership Agreement.
"Comparable Equity Interest" shall mean the 8% Cumulative Guaranteed
Monthly Income Preferred Shares of Enron Capital LLC, the 9% Cumulative
Guaranteed Preferred Securities, Series A of Enron Capital Resources, L.P. and
any preferred security hereafter issued by any finance subsidiary of which the
Company is the parent company and the principal purpose of which is to lend the
proceeds of the sale thereof to the Company or to eligible affiliates of the
Company.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Partnership Preferred
Securities, to the extent not paid or made by the Issuer: (i) any accrued and
unpaid distributions that have theretofore been declared on the Partnership
Preferred Securities out of funds legally available therefor, (ii) the
redemption price, including all accrued and unpaid Distributions to the date of
redemption (the "Redemption Price"), payable out of funds legally available
therefor, with respect to any Partnership Preferred Securities called for
redemption by the Issuer, and (iii) upon a voluntary or involuntary
dissolution,
<PAGE> 3
winding-up or termination of the Issuer, the lesser of (a) the aggregate of the
liquidation preference and all accrued and unpaid distributions on the
Partnership Preferred Securities to the date of payment and (b) the amount of
assets of the Issuer after satisfaction of all liabilities remaining available
for distribution to Holders in liquidation of the Issuer (in either case, the
"Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Partnership Preferred Securities; provided, however, that
in determining whether the holders of the requisite percentage of Partnership
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any entity owned more
than 50% by the Guarantor, either directly or indirectly.
"Investment Affiliate" means the Company or any corporation,
partnership, limited liability company or other entity (other than the
Partnership or the Trust) that is controlled by the Company and is not an
investment company by reason of Section 3(a) or 3(b) of the 1940 Act.
"Investment Event of Default" means an event of default under an
Affiliate Investment Instrument.
ARTICLE II
GUARANTEE
SECTION 2.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments, as and when due (without duplication of
amounts theretofore paid by the Issuer), regardless of any defense, right of
setoff or counterclaim which the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Guarantor to the Holders or by causing the Issuer
to pay such amounts to the Holders.
SECTION 2.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Partnership
Guarantee Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the Issuer, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
SECTION 2.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Partnership Guarantee Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the
Partnership Preferred Securities to be performed or observed by the
Issuer;
(b) the extension of time for the payment by the Issuer of
all or any portion of the distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the
Partnership Preferred Securities or the extension of time for the
performance of any other obligation under, arising out of, or in
connection with, the Partnership Preferred Securities; provided that
nothing in this Partnership Guarantee Agreement shall affect or impair
any valid extension;
2
<PAGE> 4
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Partnership Preferred Securities, or any action on the
part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Partnership Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 2.3 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 2.4 Rights of Holders
The Guarantor expressly acknowledges that (i) this Partnership
Guarantee Agreement will be deposited with the General Partner to be held for
the benefit of the Holders; (ii) in the event of the appointment of a Special
Representative to, among other things, enforce this Partnership Guarantee
Agreement, the Special Representative may take possession of this Partnership
Guarantee Agreement for such purpose; (iii) if no Special Representative has
been appointed, the General Partner has the right to enforce this Partnership
Guarantee Agreement on behalf of the Holders; (iv) the Holders of not less than
a majority in aggregate liquidation preference of the Partnership Preferred
Securities have the right to direct the time, method and place of conducting
any proceeding for any remedy available in respect of this Partnership
Guarantee Agreement including the giving of directions to the General Partner
or the Special Representative, as the case may be; and (v) if the General
Partner or Special Representative fails to enforce this Partnership Guarantee
Agreement as above provided, any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Partnership
Guarantee Agreement, without first instituting a legal proceeding against the
Issuer or any other person or entity. Notwithstanding the foregoing, if the
Guarantor has failed to make a guarantee payment, a Holder may directly
institute a proceeding against the Guarantor to enforce such payment under this
Partnership Guarantee Agreement.
SECTION 2.5 Guarantee of Payment
This Partnership Guarantee Agreement will constitute a guarantee of
payment and not of collection.
SECTION 2.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the
Holders against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Partnership Guarantee Agreement provided, however, that
the Guarantor shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any rights which it may acquire by
way of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Partnership Guarantee Agreement, if, at
the time of any such payment, any amounts are due and unpaid under this
Partnership Guarantee Agreement. If any amount shall be
3
<PAGE> 5
paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 2.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Partnership
Preferred Securities and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this
Partnership Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 2.3 hereof.
ARTICLE III
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 3.1 Limitation of Transactions
So long as any Partnership Preferred Securities remain outstanding, if
for any distribution period, (a) full distributions on a cumulative basis on
any Partnership Preferred Securities have not been paid or declared and set
apart for payment (b) an Investment Event of Default by any Investment
Affiliate in respect of any Affiliate Investment Instrument has occurred and is
continuing or (c) the Guarantor shall be in default with respect to its payment
obligations under this Partnership Guarantee Agreement, the Trust Preferred
Securities Guarantee, the Trust Common Securities Guarantee or any Investment
Guarantee then, during such period (i) 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
(except for dividends or distributions in shares of its common stock and
exchanges of common stock of one class for common stock of another class, (ii)
the Company shall not make any payment or cause any payment to be made that
would result in and shall take such action as shall be necessary to prevent,
the payment of dividends on, any distribution with respect to, any redemption,
purchase or other acquisition of, or any liquidation payment with respect to,
any Comparable Equity Interest, and (iii) the Company shall not make any
guarantee payments with respect to the foregoing.
SECTION 3.2 Ranking
This Partnership Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right
of payment to all other liabilities of the Guarantor, (ii) pari passu with the
most senior preferred or preference stock now or hereafter issued from time to
time by the Guarantor and with any guarantee now or hereafter entered into by
the Guarantor in respect of any preferred security of any Affiliate of the
Guarantor, and (iii) senior to the Guarantor's common stock. Any similar
guarantee given hereafter by the Company with respect to Partnership Preferred
Securities that is silent as to seniority will rank pari passu with this
Partnership Guarantee Agreement.
ARTICLE IV
TERMINATION
SECTION 4.1 Termination
This Partnership Guarantee Agreement shall terminate and be of no
further force and effect, as to the Partnership Preferred Securities, upon full
payment of the Redemption Price of all Partnership Preferred Securities, and
will terminate completely upon full payment of the amounts payable in
accordance with the Partnership Agreement upon liquidation of the Issuer. This
Partnership Guarantee Agreement will continue to be effective or will
4
<PAGE> 6
be reinstated, as the case may be, if at any time any Holder must, in
accordance with Delaware Revised Uniform Limited Partnership Act, restore
payment of any sums paid under any Partnership Preferred Securities or this
Partnership Guarantee Agreement.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Successors and Assigns
All guarantees and agreements contained in this Partnership Guarantee
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Partnership Preferred Securities then outstanding.
SECTION 5.2 Amendments
Except with respect to any changes which do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Partnership Guarantee Agreement may only be amended with the prior approval of
the Holders of not less than a Majority in liquidation preference of all the
outstanding Partnership Preferred Securities.
SECTION 5.3 Merger of Guarantor
The Guarantor covenants that it will not merge or consolidate with any
other corporation or other entity or sell or convey all or substantially all of
its assets to any person (other than such a sale or conveyance to a Subsidiary
or any successor thereto (such a sale or conveyance being called an "Asset
Drop-Down")), unless (i) either the Guarantor shall be the continuing
corporation or the successor corporation or other entity or the person which
acquires by sale or conveyance substantially all the assets of the Guarantor
shall expressly assume the obligations of the Guarantor hereunder, according to
their tenor, and the due and punctual performance and observance of all of the
covenants hereof to be performed or observed by the Guarantor, by instrument in
form satisfactory to the General Partner, executed and delivered to the General
Partner by such corporation or other entity, and (ii) the Guarantor or such
successor corporation or other entity, as the case may be, shall not,
immediately after such merger or consolidation, or such sale or conveyance, be
in default in the performance of any such covenant or condition. In the event
of any Asset Drop-Down after the date hereof, any subsequent sale or conveyance
of assets by a Subsidiary to which assets were transferred in such Asset
Drop-Down will be deemed to be a sale or conveyance of assets by the Company
for purposes of this provision.
SECTION 5.4 Notices
Any notice, request or other communication required or permitted to be
given hereunder to the Guarantor shall be given in writing by delivering the
same against receipt therefor by facsimile transmission (confirmed by mail),
addressed to the Guarantor, as follows (and if so given, shall be deemed given
when mailed):
Enron Corp.
1400 Smith Street
Houston, Texas 77002
Attention: Treasury Department
Facsimile No: (713) 646-3422
5
<PAGE> 7
Any notice, request or other communication required or permitted to be
given hereunder to the Holders shall be given by the Guarantor in the same
manner as notices sent by the Issuer to the Holders.
SECTION 5.5 Gender
The masculine, feminine and neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 5.6 Benefit
This Partnership Guarantee Agreement is solely for the benefit of the
Holders and is not separately transferable from the Partnership Preferred
Securities.
SECTION 5.7 Governing Law
THIS PARTNERSHIP GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
6
<PAGE> 8
THIS PARTNERSHIP GUARANTEE AGREEMENT is executed as of the day and
year first above written.
ENRON CORP.
By: /s/ William D. Gathmann
-------------------------
William D. Gathmann
Vice President and Treasurer
7
<PAGE> 1
EXHIBIT 4.6
ENRON CORP.,
ISSUER,
AND
THE CHASE MANHATTAN BANK, TRUSTEE
______________________
INDENTURE
DATED AS OF NOVEMBER 21, 1996
________________________
7.75% SUBORDINATED DEBENTURES
DUE 2016
<PAGE> 2
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- ----------- -------
<S> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 1004
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104(c)
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
___________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
-----
<S> <C> <C>
ARTICLE ONE
Definitions and other Provisions
of General Application
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 104. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 105. Notices, Etc., to Trustee and the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 202. Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 203. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 204. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE THREE
The Securities
SECTION 301. Title and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . 18
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE FIVE
Remedies
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . 24
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 505. Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . . . . . 25
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest . . . . . . . . . . . . . . . 27
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . 30
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
</TABLE>
ii
<PAGE> 5
<TABLE>
<S> <C> <C>
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . 33
SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE SEVEN
Holders' Lists and Reports by Trustee
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . 34
SECTION 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . . . 34
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . 35
SECTION 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE TEN
Covenants; Representations and Warranties
SECTION 1001. Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 1003. Money for Security Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 1004. Reports by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 1005. Negative Pledge and Exceptions Thereto . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 1006. Statement as to Compliance; Notice of Certain Events of Default . . . . . . . . . . . . . . . 42
</TABLE>
iii
<PAGE> 6
<TABLE>
<S> <C> <C>
ARTICLE ELEVEN
Subordination of Securities
SECTION 1101. Securities Subordinate to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 1102. Payment Over of Proceeds upon Dissolution, etc. . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 1103. No Payment When Senior Indebtedness in Default . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 1104. Payment Permitted If No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 1105. Subrogation to Rights of Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . . . 45
SECTION 1106. Provisions Solely to Define Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 1107. Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1108. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1109. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1110. Reliance on Judicial Order or Certificate of Liquidating Agent . . . . . . . . . . . . . . . 47
SECTION 1111. Rights of Trustee as a Holder of Senior Indebtedness; Preservation of
Trustee's Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 1112. Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 1202. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 1203. Authorization for Redemption; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 1204. Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 1205. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 1206. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 1207. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 1208. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
</TABLE>
iv
<PAGE> 7
INDENTURE, dated as of November 21, 1996, by and between Enron Corp.,
a corporation duly organized and validly existing under the laws of the State
of Delaware (the "Company"), and The Chase Manhattan Bank, a New York banking
corporation (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its 7.75% Subordinated Debentures due
2016 (the "Securities") as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE ONE
Definitions and other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Interest" means interest that shall accrue on any interest
on the Securities that is in arrears for more than one quarter or not paid
during an Extension Period, which in either case shall accrue at the rate of
7.75% per annum compounded quarterly.
<PAGE> 8
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
certification, and delivered to the Trustee.
"Business Day" means a day other than a day on which banking
institutions in the City of New York are authorized or required by law to
close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
or, if at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, a Vice Chairman, its
President or a Vice President and delivered to the Trustee.
"Consolidated Net Tangible Assets" means total assets less (a) total
current liabilities (excluding indebtedness due within 12 months) and (b)
goodwill, patents and trademarks, all as reflected in the Company's audited
consolidated balance sheet preceding the date of a determination under the last
paragraph of Section 1005.
"Corporate Trust Office" means the principal office of the Trustee in
New York, New York, at which at any particular time its corporate trust
business shall be administered and which at the date of this Indenture is 450
West 33rd Street - 15th Floor, New York, New York 10001.
"Defaulted Interest" has the meaning specified in Section 307.
"Event of Default" has the meaning specified in Section 501.
"Extension Period" has the meaning specified in Section 301.
2
<PAGE> 9
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"Funded Debt" as applied to any corporation means all indebtedness
incurred, created, assumed or guaranteed by such corporation, or upon which it
customarily pays interest charges, which matures, or is renewable by such
corporation to a date, more than one year after the date as of which Funded
Debt is being determined; provided, however, that the term "Funded Debt" shall
not include (i) indebtedness incurred in the ordinary course of business
representing borrowings, regardless of when payable, of such corporation from
time to time against, but not in excess of the face amount of, its installment
accounts receivable for the sale of appliances and equipment sold in the
regular course of business or (ii) advances for construction and security
deposits received by such corporation in the ordinary course of business
"General Partner" means the Company, in its capacity as general
partner of the Partnership. "Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date," when used with respect to any installment of
interest on a Security, means the date specified in such Security as the fixed
date on which an installment of interest with respect to the Securities is due
and payable.
"Limited Partnership Agreement" means the Amended and Restated
Agreement of Limited Partnership, dated as of November 21, 1996, of the
Partnership, as amended, modified or otherwise supplemented from time to time.
"Maturity," when used with respect to any Security, means the date on
which the original of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by (i) the
Chairman, a Vice Chairman, the President, a Vice President, or the Treasurer of
the Company and (ii) the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee; provided, however, that such certificate may be
signed by two of the officers or directors listed in clause (i) above in lieu
of being signed by one of such officers or directors listed in such clause (i)
and one of the officers listed in clause (ii) above. One of the officers
signing an Officer's Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
3
<PAGE> 10
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with;
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with; and
(e) a statement that one of the officers signing such Officers'
Certificate is the principal executive, financial or accounting officer of the
Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except: (i) Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation; (ii) Securities for whose
payment or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the Company shall
act as its own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and (iii) Securities which have been paid pursuant to
Section 401, or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company.
"Partnership" means Enron Preferred Funding, L.P., a Delaware limited
partnership, and any successor thereto.
"Partnership Investment Company Event" means that the General Partner
shall have requested and received an opinion of nationally recognized
independent legal counsel experienced in such matters to the effect that as a
result of the occurrence on or after the date hereof of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority, the
Partnership is or will be considered an "investment company" which is required
to be registered under the Investment Company Act of 1940.
"Partnership Preferred Securities" means the limited partner interests
issued pursuant to the Limited Partnership Agreement.
4
<PAGE> 11
"Partnership Special Event" means either a Partnership Investment
Company Event or a Partnership Tax Event.
"Partnership Tax Event" means that the Company, as the general partner
of the Partnership, shall have requested and received an opinion of nationally
recognized independent tax counsel experienced in such matters to the effect
that there has been a Tax Action resulting in there being more than an
insubstantial risk that (i) the Partnership is, or will be subject to United
States federal income tax with respect to income accrued or received on the
Affiliate Investment Instruments or the Eligible Debt Securities (each as
defined in the Limited Partnership Agreement), (ii) the Partnership is, or will
be subject to more than a de minimis amount of other taxes, duties or other
governmental charges or (iii) interest payable by one or more of the obligors
with respect to the Affiliate Investment Instruments to the Partnership is not,
or will not be, deductible by the Company for United States federal income tax
purposes.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company, which
shall initially be The Chase Manhattan Bank.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Securities" means the Partnership Preferred Securities and
the Trust Preferred Securities.
"Principal Property" means any oil or gas pipeline, gas processing
plant or chemical plant located in the United States, except any such property,
pipeline or plant that in the opinion of the Board of Directors is not of
material importance to the total business conducted by the Company and its
Subsidiaries. "Principal Property" shall not include any oil or gas property or
the production or any proceeds of production from an oil or gas producing
property or the production or any proceeds of production of gas processing
plants or oil or gas or petroleum products in any pipeline.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
5
<PAGE> 12
"Regular Record Date" for the interest payable on any Interest Payment
Date means the Business Day next preceding such Interest Payment Date.
"Representative" means an indenture trustee or other trustee, agent or
representative for an issue of Senior Indebtedness.
"Responsible Officer," when used with respect to the Trustee, means
any officer within the Corporate Trust Office including any Vice President,
Assistant Vice President, Secretary, Assistant Secretary or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's knowledge and familiarity with the particular subject.
"Securities" has the meaning specified in the Recitals to this
instrument.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of, premium, if any,
interest on and any other payment due pursuant to any of the following, whether
outstanding at the date hereof or hereafter incurred, created or assumed: (i)
all indebtedness of the Company (other than any obligations to trade creditors)
evidenced by notes, debentures, bonds or other securities sold by the Company
for money borrowed and capitalized lease obligations; (ii) all indebtedness of
others of the kinds described in the preceding clause (i) assumed or guaranteed
in any manner by the Company or in effect guaranteed by the Company; and (iii)
all renewals, extensions or refundings of indebtedness of the kinds described
in either of the preceding clauses (i) or (ii), unless, in the case of any
particular indebtedness, capitalized lease obligation, guarantee, renewal,
extension or refunding, the instrument creating or evidencing the same or the
assumption or guarantee of the same expressly provides that such indebtedness,
renewal, extension or refunding is subordinated to or is pari passu with the
Securities.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal, together with any accrued and unpaid
interest (including Additional Interest), of such Security or such installment
of interest is due and payable.
"Subsidiary" means any Person a majority of the equity ownership or
the Voting Stock of which is at the time owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
6
<PAGE> 13
"Tax Action" means that there has been (a) an 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, (b) a judicial decision interpreting, applying, or clarifying such
laws or regulations, (c) an administrative pronouncement or action that
represents an official position (including a clarification of an official
position) of the governmental authority or regulatory body making such
administrative pronouncement or taking such action, or (d) a threatened
challenge asserted in connection with an audit of the Company or any of its
Subsidiaries, the Partnership, or the Trust, or a threatened challenge asserted
in writing in connection with any other taxpayer that has raised capital
through the issuance of securities that are substantially similar to the
Securities, the Partnership Preferred Securities, or the Trust Preferred
Securities, which amendment or change is adopted or which decision or
pronouncement is announced or which action, clarification or challenge occurs
on or after the date of this Indenture.
"Trust" means Enron Capital Trust I, a Delaware business trust, and
any successor thereto.
"Trust Agreement" means the Amended and Restated Declaration of Trust
of the Trust dated November 18, 1996 among Enron Corp., as Sponsor, and the
trustees named therein.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trust Preferred Securities" means the 8.30% Trust Originated
Preferred Securities, liquidation amount $25 per Trust Preferred Security,
issued pursuant to the Trust Agreement.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
7
<PAGE> 14
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form any instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
8
<PAGE> 15
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 601) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining
the Holders entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders. If not set by the
Company prior to the first solicitation of a Holder made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date, only the Holders on such date (or
their duly designated proxies) shall be entitled to give or take, or vote on,
the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 105. Notices, Etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Global Trust
Services, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage
9
<PAGE> 16
prepaid, to the Company addressed to it at the address of its principal office
specified below or at any other address previously furnished in writing to the
Trustee by the Company.
If to the Company to:
Enron Corp.
1400 Smith Street
Houston, Texas 77002
Attention: Treasurer
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in a
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
The Company will have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect wholly-owned
Subsidiary, provided that, in the event of any such
10
<PAGE> 17
assignment, the Company will remain liable for all such obligations. Subject
to the foregoing, this Indenture is binding upon and inures to the benefit of
the parties hereto and their respective successors and assigns. This Indenture
may not otherwise be assigned by the parties hereto.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness, the holders of Preferred
Securities (to the extent provided herein) and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal of the Securities shall 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 of interest or principal of the Securities, as the case may
be, shall be made on the immediately preceding Business Day (and without any
reduction in interest or principal in respect of such early payment).
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
11
<PAGE> 18
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these or other methods, all as determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 202. Form of Face of Security.
ENRON CORP.
7.75% Subordinated Debenture,
Due 2016
No. _____________ $________
Enron Corp., a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ________________, or registered assigns,
the principal sum of ________ DOLLARS ($________) on September 30, 2016 and to
pay interest on said principal sum from November 21, 1996 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, 1996, at the rate of 7.75%
per annum plus Additional Interest, if any, until the principal hereof shall
have become due and payable, and on any overdue principal. The amount of
interest payable for any period will be computed on the basis of twelve 30-day
months and a 360-day year. In the event that any date on which interest is
payable on this Security is not a Business Day, then a payment of the 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 the date the payment was
originally payable. A "Business Day" shall mean any day other than a day on
which banking institutions in the City of New York are authorized or required
by law to remain closed. 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 Security (or one or
more Predecessor Securities, as defined in the 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. Any such interest installment not so punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice of which shall be given to Holders of
Securities not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements
of any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture.
12
<PAGE> 19
The Company shall have the right at any time during the term of this
Security, from time to time, to extend the interest payment period of such
Security for up to six consecutive quarters (an "Extension Period"), during
which periods interest will compound quarterly and the Company shall have the
right to make partial payments of interest on any Interest Payment Date, and at
the end of which Extension Period the Company shall pay all interest then
accrued and unpaid (together with Additional Interest thereon to the extent
that payment of such interest is permitted by applicable law). Prior to the
termination of any such Extension Period, the Company may further extend the
interest payment period, provided that such Extension Period together with all
such previous and further extensions thereof shall not exceed six consecutive
quarters or extend beyond the Maturity of this Security. Upon the termination
of any such Extension Period and upon the payment of all accrued and unpaid
interest and any Additional Interest then due, the Company may select a new
Extension Period, subject to the foregoing requirements. No interest shall be
due and payable during an Extension Period except at the end thereof. The
Company shall give the Holder of this Security and the Trustee written notice
of its selection of an Extension Period at least one Business Day prior to the
earlier of (i) the Interest Payment Date or (ii) the date Enron Capital Trust I
is required to give notice to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Trust Preferred Securities of
the record date or the date such distributions are payable, but in any event
not less than one Business Day prior to such record date.
Payment of the principal of and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in New York,
New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made (i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or (ii) by wire transfer in
immediately available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Security
Register.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, waives all notice of
the acceptance of the subordination provisions contained herein and in the
Indenture of each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
Reference is hereby made to the further provisions of the Indenture
summarized on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth herein.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
13
<PAGE> 20
IN WITNESS WHEREOF, Enron Corp. has caused this instrument to be duly
executed under its corporate seal.
Dated: ________, 1996
ENRON CORP.
By:
-----------------------------------
Name:
Title:
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company, designated as its 7.75% Subordinated Debentures Due 2016 (herein
called the "Securities"), limited in aggregate principal amount to $181,926,000
issued under an Indenture, dated as of November 21,1996 (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank, as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Trustee, the Company and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
At any time on or after December 31, 2001, the Company shall have the
right, subject to the terms and conditions of Article Twelve of the Indenture,
to redeem this Security at the option of the Company, without premium or
penalty, in whole or in part, at a Redemption Price equal to 100% of the
principal amount to be redeemed plus accrued but unpaid interest, including any
Additional Interest, if any, to the Redemption Date. If a Partnership Special
Event shall occur and be continuing, the Company shall have the right, subject
to the terms and conditions of Article Twelve of the Indenture, to redeem this
Security, without premium or penalty, in whole but not in part, at a Redemption
Price equal to 100% of the principal amount thereof plus accrued but unpaid
interest, including any Additional Interest, if any, to the Redemption Date.
Any redemption pursuant to this paragraph will be made upon not less than 30
nor more than 60 days' notice, at the Redemption Price. If the Securities are
only partially redeemed by the Company, the Securities will be redeemed pro
rata, by lot or in such other manner as the Trustee shall deem appropriate and
fair in its discretion and that may provide for the selection of a portion or
portions (equal to twenty-five U.S. dollars ($25) or any integral multiple
thereof) of the principal amount of any Security.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
14
<PAGE> 21
If an Event of Default with respect to the Securities shall occur and
be continuing, the principal of the Securities may be declared due and payable
in the manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions for satisfaction and discharge at
any time of the entire indebtedness of this Security upon compliance by the
Company with certain conditions set forth in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of Holders of not less than a majority in principal
amount of the Outstanding Securities, to modify the Indenture in a manner
affecting the rights of the Holders of the Securities; provided that no such
modification may, without the consent of the Holder of each Outstanding
Security, (i) extend the fixed maturity of the Securities, or 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, or
(ii) reduce the percentage of principal amount of the Securities, the Holders
of which are required to consent to any such modification of the Indenture.
The Indenture also contains provisions permitting Holders of specified
percentages in principal amount of the Securities at the time Outstanding, on
behalf of the Holders of all Securities, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in New York, New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees. No service charge shall
be made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment of this security for registration of
transfer, the Company, the Trustee and any of their respective agents may treat
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security shall be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
15
<PAGE> 22
The Securities 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 therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned
Indenture.
[NAME OF TRUSTEE], as Trustee
By:
-----------------------------------
Authorized Signatory
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $181,926,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other securities pursuant to Section
303, 304, 305, 306 or 1208.
The Securities shall be known and designated as the "7.75%
Subordinated Debentures Due 2016" of the Company. Their Stated Maturity shall
be September 30, 2016, and they shall bear interest at the rate of 7.75% per
annum, from November 21, 1996 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, as the case may be, payable
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,
1996 until the principal thereof is paid or made available for payment.
Interest will compound quarterly and will accrue at the rate of 7.75% per annum
on any interest installment in arrears for more than one quarter or during an
extension of an interest payment period as set forth below in this Section 301.
In the event that any date on which interest is payable on the Securities is
not a Business Day, then a payment of the interest payable on such date will be
made on the next succeeding day which is a Business Day (except that, if such
Business Day is in the next succeeding calendar year, such Interest Payment
Date shall be the immediately preceding Business Day) (and without any interest
or other payment in respect of any such delay).
16
<PAGE> 23
The Company shall have the right, at any time during the term of the
Securities, from time to time to extend the interest payment period for up to
six consecutive quarters (the "Extension Period") during which period interest
will compound quarterly and the Company shall have the right to make partial
payments of interest on any Interest Payment Date, and at the end of which
Extension Period the Company shall pay all interest then accrued and unpaid
thereon (together with Additional Interest at the rate specified for the
Securities to the extent permitted by applicable law). Prior to the
termination of any such Extension Period, the Company may further extend the
interest payment period, provided that such Extension Period together with all
such previous and further extensions thereof shall not exceed six consecutive
quarters or extend beyond the Maturity of the Securities. Upon the termination
of any Extension Period and upon the payment of all accrued and unpaid interest
and any Additional Interest then due, the Company may select a new Extension
Period, subject to the foregoing requirements. No interest shall be due and
payable during an Extension Period, except at the end thereof. The Company
shall give the Trust, the Partnership and the Trustee notice of its selection
of such Extension Period subject to the above requirements at least one
Business Day prior to the earlier of (i) the Interest Payment Date or (ii) the
date the Trust is required to give notice to the New York Stock Exchange or
other applicable self-regulatory organization or to holders of the Trust
Preferred Securities of the record date or the date such distributions are
payable, but in any event not less than one Business Day prior to such record
date.
The principal of and interest on the Securities shall be payable at
the office or agency of the Company in the United States maintained for such
purpose and at any other office or agency maintained by the Company for such
purpose in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made (i)
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or (ii) by wire transfer in immediately
available funds at such place and to such account as may be designated by the
Person entitled thereto as specified in the Security Register.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Eleven.
The Securities shall be redeemable as provided in Article Twelve.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form, without
coupons, and only in denominations of $25 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman, one of its Vice Chairman, its President or one of its Vice
Presidents. The signature of any of these officers on the securities may be
manual or facsimile.
17
<PAGE> 24
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
of authorized denominations. Until so exchanged the temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
18
<PAGE> 25
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or excess of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304 or 1208 not involving any transfer.
If the Securities are to be redeemed in part, the Company will not be
required to issue, register the transfer of or exchange any Securities during a
period beginning at the opening of business 15 days before the day of mailing
of a notice of redemption of any such Securities that may be selected for
redemption and ending at the close of business on the day of such mailing,
except the unredeemed portion of any such Securities being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
security and (ii) such security or indemnity as may be required by them to save
each of them and any of the officers, directors, employees or agents of either
of them harmless, then, in the absence of notice to the Company or the Trustee
that such Security has been acquired by a bona fide purchaser, the Company
shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
19
<PAGE> 26
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) the Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the date
of the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of
20
<PAGE> 27
such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to each
Holder at his address as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and, if so listed, upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue (including in each such case Additional Interest),
which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of any of them shall treat the Person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of and (subject to Section 307)
interest (including Additional Interest) on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of them shall be affected by notice to the
contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of as directed by a
Company Order.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
21
<PAGE> 28
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for and any amounts owed to the Trustee hereunder), and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose and amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal and interest (including
Additional Interest) to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with. Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607 and,
if money shall have been deposited with the Trustee pursuant to subclause (B)
of Clause (1) of this Section,
22
<PAGE> 29
the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive. SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with the Trustee. The Trustee
shall not invest money deposited with it pending distribution of such amounts.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events that has occurred and is continuing (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) failure for 90 days to pay any interest on the Securities,
including any Additional Interest in respect thereof, when due (subject to the
deferral of any due date in the case of an Extension Period); or
(2) failure to pay any principal on the Securities when due whether at
Stated Maturity, upon redemption or otherwise; or
(3) failure to observe or perform in any material respect any other
covenant herein for 90 days after written notice of such failure (specified as
a "Notice of Default"), requiring the Company to remedy the same shall have
been given to the Company by the Trustee or the holders of at least 25% in
principal amount of the Outstanding Securities; or
(4) a court or governmental agency having jurisdiction shall enter a
decree or order for relief in respect of the Company in an involuntary case
under any applicable federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or for
all or substantially all of its property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain unstayed and
in effect for a period of 90 consecutive days; or
(5) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under any
such law, or consent to the appointment or taking possession
23
<PAGE> 30
by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Company or for all or substantially all of its
property or make any general assignment for the benefit of creditors; or the
Company shall admit in writing its inability to pay its debts generally as they
become due.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities shall have the right to declare
the principal of and the interest on all the Securities (including any
Additional Interest) and any other amounts payable hereunder to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders) and to enforce any and all other rights of Holders of
Securities as creditors with respect to the Securities. Upon any such
declaration such principal and all accrued interest shall become immediately
due and payable.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay,
(A) all overdue interest (including any Additional Interest)
on all Securities,
(B) the principal of any Securities which have became due
otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default, other than the non-payment of the principal
of Securities which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest (including any
Additional Interest) on any Security when such interest becomes due and payable
and such default continues for a period of 90 days (subject to the deferral of
any due and payable interest in the case of an Extension Period), or
24
<PAGE> 31
(2) default is made in the payment of the principal of any Security at
the Maturity thereof, the Company will, upon demand of the Trustee, pay to it,
for the benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal and interest (including any
Additional Interest), at the rate borne by the Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company, its
property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
25
<PAGE> 32
SECTION 506. Application of Money Collected.
Subject to Article Eleven, any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal or interest (including any Additional Interest), upon presentation
of the Securities and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest (including any Additional Interest) on the Securities
in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal and interest (including any
Additional Interest), respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee such indemnity
as is satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities; it being understood and
intended that no one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holders, or to obtain or
to seek to obtain priority or preference over any other Holders or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all the Holders.
26
<PAGE> 33
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and (subject to Section 307) interest
(including any Additional Interest) on such Security on the respective Stated
Maturities (subject to the deferral of any due date in the case of an Extension
Period) expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities 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
(1) such direction shall not be in conflict with any rule of law or
with this Indenture; and
27
<PAGE> 34
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
Subject to Section 902, the Holders of not less than a majority in
principal amount of the Outstanding Securities may on behalf of the Holders of
all the Securities waive any past default hereunder and its consequences,
except a default
(1) in the payment of the principal of or interest (including any
Additional Interest) on any Security (unless such default has been cured and a
sum sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration have been deposited with the Trustee); or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
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, suffered or
omitted by it as Trustee, a court may require any party litigant in such court
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or the Trustee or in any suit for the enforcement of the right to receive the
principal of and interest (including any Additional Interest) on any Security.
SECTION 515. Acknowledgment.
The Company acknowledges that so long as the Partnership is a Holder,
a holder of record of Preferred Securities may to the fullest extent permitted
by law on behalf of the Partnership, when and as provided in the Limited
Partnership Agreement, directly institute a legal proceeding against the
Company under this Indenture, without first instituting any legal proceeding
against the Property Trustee (as such term is defined in the Limited
Partnership Agreement) or any other party.
28
<PAGE> 35
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default hereunder
actually known to a Responsible Officer of the Trustee as and to the extent
provided by the Trust Indenture Act; provided, however, that in the case of any
default of the character specified in Section 501(3), no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, conclusively rely upon an Officers' Certificate;
(d) the Trustee may, at the Company's expense, consult with counsel of
its choice, and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and
29
<PAGE> 36
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
(i) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur 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 to believe that
repayments of such funds or indemnity satisfactory to it against any loss,
liability or expense is not reasonably assured to it;
(j) the Trustee shall have no duty to monitor the performance of the
Company or its compliance with the covenants contained herein, nor shall it
have any liability in connection with the malfeasance or nonfeasance by the
Company; and
(k) any Paying Agent, Authenticating Agent or Security Registrar
appointed hereunder shall be entitled to all the rights, protections,
immunities and indemnities afforded to the Trustee hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or
30
<PAGE> 37
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar, or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar, or such other agent. Money held
by the Trustee in trust hereunder shall not be invested by the Trustee pending
distribution thereof to the holders of the Securities.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable fees, charges, expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture or arising out of or in connection with the
acceptance or administration of this Trust (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee and its officers, directors, employees
and agents for, and to hold them harmless against, any and all loss, damage,
claim, liability or expense, including taxes (other than taxes based on the
income of the Trustee) incurred without negligence or bad faith on their part,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The provisions of this Section shall survive the termination of this
Indenture or the resignation or removal of the Trustee.
31
<PAGE> 38
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and has its
Corporate Trust Office in New York, New York, if such Person publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation
or liquidation,
32
<PAGE> 39
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders in
the manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
(g) No retiring Trustee hereunder shall be liable for the acts or
omissions of any successor Trustee.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; provided that, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its fees, charges and expenses, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder. Upon request
of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which
33
<PAGE> 40
the Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company,
the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any such other
obligor).
SECTION 614. Character of Expenses.
When the Trustee incurs expenses or renders services in connection
with an Event of Default, or any bankruptcy or insolvency in respect of the
Company, such expenses (including the fees and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of
administration under any bankruptcy law or law relating to creditors' rights
generally.
ARTICLE SEVEN
Holders' Lists and Reports by Trustee
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not later than the last day of June and December in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of all Holders as of a date not more than 15 days prior to
the delivery thereof who were not Holders at the date of the Company had
previously provided such list (or, in the case of the initial provision of such
list, at the date of issuance of the Securities), and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished, excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in
34
<PAGE> 41
Section 701 and the names and addresses of Holders received by the Trustee in
its capacity as Security Registrar. The Trustee may destroy any list furnished
to it as provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of any of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, and with the Company. The Company will notify the
Trustee when the Securities are listed on any stock exchange.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company covenants that it will not merge or consolidate with any
other corporation or other entity or sell or convey all or substantially all of
its assets to any person (other than such a sale or conveyance to a Subsidiary
or any successor thereto (such a sale or conveyance being called an "Asset
Drop-Down")), unless (i) either the Company shall be the continuing corporation
or the successor corporation or other entity or the person which acquires by
sale or conveyance substantially all the assets of the Company shall expressly
assume the due and punctual payment of the principal of, premium, if any, and
interest, if any, on all the Securities, according to their tenor, and the due
and punctual performance and observance of all of the covenants and conditions
of this Indenture to be performed or observed by the Company, by supplemental
indenture in form satisfactory to the Trustee, executed and delivered to the
Trustee by such corporation or other entity, and (ii) the Company or such
successor corporation or other entity, as the case may be, shall not,
immediately after such merger or consolidation, or such sale or conveyance, be
in default in the performance of any such covenant or condition. In the event
of any Asset Drop-Down after the date of this Indenture, any subsequent sale or
conveyance of assets by a Subsidiary to which assets were transferred in such
Asset Drop-Down (a "Drop-Down Subsidiary") will be deemed to be a sale or
conveyance of assets by the Company for purposes of this Section 801.
35
<PAGE> 42
SECTION 802. Successor Substituted.
In case of any such consolidation, merger, sale or conveyance, and
following such an assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein. Such successor corporation may cause to
be signed, and may issue either in its own name or in the name of the Company
prior to such succession any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation instead of the
Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All of the Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Securities theretofore or thereafter issued in accordance with the terms
of this Indenture as though all of such Securities had been issued at the date
of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance
by way of lease) the Company or any successor corporation which shall
theretofore have become such in the manner described in this Article shall be
released and discharged from all obligations and covenants under this
Indenture.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein and
in the Securities;
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein or in the Securities
conferred upon the Company;
(3) to cure any ambiguity or to correct any provision herein which may
be defective or inconsistent with any other provision herein;
36
<PAGE> 43
(4) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 905 or otherwise;
(5) to evidence and provide the acceptance of the appointment of a
successor Trustee hereunder; or
(6) to make any other change that does not adversely affect the rights
of any Holder.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of interest (including any Additional Interest) on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, or change the place
of payment where, or the coin or currency in which, any Security or interest
thereon is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or modify the provisions of this
Indenture with respect to the subordination of the Securities in a manner
adverse to the Holders,
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders in required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying
37
<PAGE> 44
upon an Officer's Certificate stating that all conditions precedent to the
execution of such supplemental indenture have been fulfilled and an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
ARTICLE TEN
Covenants; Representations and Warranties
SECTION 1001. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and interest
on the Securities in accordance with the terms of the Securities and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in New York, New York, an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies in the United States where the Securities may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in New York, New York for such purposes. The Company will give
prompt written
38
<PAGE> 45
notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will,
on or at the option of the Company before each due date of the principal of or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on
or prior to each due date of the principal of or interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or interest on any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the Company on a Company Request,
or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.
SECTION 1004. Reports by the Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission. Delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 1005. Negative Pledge and Exceptions Thereto.
So long as any of the Securities are outstanding, the Company will not
pledge, mortgage or hypothecate, or permit to exist, and will not cause, suffer
or permit any Subsidiary to pledge, mortgage or hypothecate, or permit to
exist, except in favor of the Company or any Subsidiary, any mortgage, pledge
or other lien upon, any Principal Property at any time owned by it, to secure
39
<PAGE> 46
any indebtedness, without making effective provisions whereby the Securities
shall be equally and ratably secured with any and all such indebtedness and
with any other indebtedness similarly entitled to be equally and ratably
secured; provided, however, that this restriction shall not apply to or prevent
the creation or existence of:
(a) undetermined or inchoate liens and charges incidental
to construction, maintenance, development or operation;
(b) the lien of taxes and assessments for the then
current year;
(c) the lien of taxes and assessments not at the time
delinquent;
(d) the lien of specified taxes and assessments which are
delinquent but the validity of which is being contested at the time by
the Company or such Subsidiary in good faith;
(e) the lien reserved in leases for rent and for
compliance with the terms of the lease in the case of leasehold
estates;
(f) any obligations or duties, affecting the property of
the Company or such Subsidiary, to any municipality or public
authority with respect to any franchise, grant, license, permit or
similar arrangement;
(g) the liens of any judgments or attachments in an
aggregate amount not in excess of $10,000,000, or the lien of any
judgment or attachment the execution or enforcement of which has been
stayed or which has been appealed and secured, if necessary, by the
filing of an appeal bond;
(h) any mortgage, pledge, lien or encumbrance on any
property held or used by the Company or a Subsidiary in connection
with the exploration for, development of or production of oil, gas,
natural gas (including liquified gas or storage gas), other
hydrocarbons, helium, coal, metals, minerals, steam, timber,
geothermal or other natural resources or synthetic fuels, such
properties to include, but not be limited to, the Company's or a
Subsidiary's interest in any mineral fee interests, oil, gas or other
mineral leases, royalty, overriding royalty or net profits interests,
production payments and other similar interests, wellhead production
equipment, tanks, field gathering lines, leasehold or field separation
and processing facilities, compression facilities and other similar
personal property and fixtures;
(i) any mortgage, pledge, lien or encumbrance on oil,
gas, natural gas (including liquified gas and storage gas), and other
hydrocarbons, helium, coal, metals, minerals, steam, timber,
geothermal or other natural resources or synthetic fuels produced or
recovered from any property, an interest in which is owned or leased
by the Company or a Subsidiary;
40
<PAGE> 47
(j) mortgages, pledges, liens or encumbrances upon any
property heretofore or hereafter acquired, created at the time of
acquisition or within one year thereafter to secure all or a portion
of the purchase price thereof, or existing thereon at the date of
acquisition, whether or not assumed by the Company or a Subsidiary,
provided that every such mortgage, pledge, lien or encumbrance shall
apply only to the property so acquired and fixed improvements thereon;
(k) any extension, renewal or refunding, in whole or in
part, of any mortgage, pledge, lien or encumbrance permitted by
subparagraph (j) above, if limited to the same property or any portion
thereof subject to, and securing not more than the amount secured by,
the mortgage, pledge, lien or encumbrance extended, renewed or
refunded;
(l) mortgages, pledges, liens or encumbrances upon any
property heretofore or hereafter acquired by any corporation that is
or becomes a Subsidiary after the date hereof ("Acquired Entity"),
provided that every such mortgage, pledge, lien or encumbrance (1)
shall either (A) exist prior to the time the Acquired Entity becomes a
Subsidiary or (B) be created at the time the Acquired Entity becomes a
Subsidiary or within one year thereafter to secure all or a portion of
the acquisition price thereof and (2) shall only apply to those
properties owned by the Acquired Entity at the time it becomes a
Subsidiary or thereafter acquired by it from sources other than the
Company or any other Subsidiary;
(m) the pledge of current assets, in the ordinary course
of business, to secure current liabilities;
(n) mechanics' or materialmen's liens, any liens or
charges arising by reason of pledges or deposits to secure payment of
workmen's compensation or other insurance, good faith deposits in
connection with tenders, leases of real estate, bids or contracts
(other than contracts for the payment of money), deposits to secure
duties or public or statutory obligations, deposits to secure, or in
lieu of, surety, stay or appeal bonds, and deposits as security for
the payment of taxes or assessments or similar charges;
(o) any lien arising by reason of deposits with, or the
giving of any form of security to, any governmental agency or any body
created or approved by law or governmental regulation for any purpose
at any time in connection with the financing of the acquisition or
construction of property to be used in the business of the Company or
a Subsidiary or as required by law or governmental regulation as a
condition to the transaction of any business or the exercise of any
privilege or license, or to enable the Company or a Subsidiary to
maintain self-insurance or to participate in any funds established to
cover any insurance risks or in connection with workmen's
compensation, unemployment insurance, old age pensions or other social
security, or to share in the privileges or benefits required for
companies participating in such arrangements;
(p) any lien to secure indebtedness other than Funded
Debt;
41
<PAGE> 48
(q) any mortgage, pledge, lien or encumbrance of or upon
any office equipment, data processing equipment (including, without
limitation, computer and computer peripheral equipment), or
transportation equipment (including, without limitation, motor
vehicles, tractors, trailers, marine vessels, barges, towboats,
rolling stock and aircraft);
(r) any mortgage, pledge, lien or encumbrance created or
assumed by the Company or a Subsidiary in connection with the issuance
of debt securities the interest on which is excludable from gross
income of the holder of such security pursuant to the Internal Revenue
Code of 1954, as amended, for the purpose of financing, in whole or in
part, the acquisition or construction of property to be used by the
Company or a Subsidiary; or
(s) the pledge or assignment of accounts receivable, or
the pledge or assignment of conditional sales contracts or chattel
mortgages and evidences of indebtedness secured thereby, received in
connection with the sale by the Company or such Subsidiary or others
of goods or merchandise to customers of the Company or such
Subsidiary.
In case the Company or any Subsidiary shall propose to pledge,
mortgage or hypothecate any Principal Property at any time owned by it to
secure any indebtedness, other than as permitted by subdivisions (a) to (s),
inclusive, of this Section 1005, the Company will prior thereto give written
notice thereof to the Trustee, and the Company will, or will cause such
Subsidiary to, prior to or simultaneously with such pledge, mortgage or
hypothecation, enter into a supplemental with the Trustee (or to the extent
legally necessary to another trustee or additional or separate trustee) that
secures all the Securities equally and ratably with such indebtedness.
Notwithstanding the foregoing provisions of this Section 1005, the
Company or a Subsidiary may issue, assume or guarantee indebtedness secured by
mortgage which would otherwise be subject to the foregoing restrictions in an
aggregate amount which, together with all other indebtedness of the Company or
a Subsidiary secured by a mortgage which (if originally issued, assumed or
guaranteed at such time) would otherwise be subject to the foregoing
restrictions (not including indebtedness permitted to be secured under clauses
(a) through (s) above), does not at the time exceed 10% of the Consolidated Net
Tangible Assets of the Company, as shown on the audited consolidated financial
statements of the Company as of the end of the fiscal year preceding the date
of determination.
SECTION 1006. Statement as to Compliance; Notice of Certain Events of Default.
The Company will, within 120 days after the close of each fiscal year,
commencing with the first fiscal year following the issuance of Securities
under this Indenture, file with the Trustee a certificate of the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company covering the period from the date of issuance of such
Securities to the end of the fiscal year in which such Securities were issued,
in the case of the first such certificate, andcovering the preceding fiscal
year in the case of each subsequent certificate, and stating whether or
42
<PAGE> 49
not, to the knowledge of the signer, the Company has complied with all
conditions and covenants on its part contained in this Indenture, and, if the
signer has obtained knowledge of any default by the Company in the performance,
observance or fulfillment of any such condition or covenant, specifying each
such default and the nature thereof. For the purpose of this Section 1007,
compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.
ARTICLE ELEVEN
Subordination of Securities
SECTION 1101. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, notwithstanding
anything to the contrary contained herein, to the extent and in the manner
hereinafter set forth in this Article, the indebtedness represented by the
Securities and the payment of the principal of and premium, if any, and
interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full in
cash or cash equivalents of all Senior Indebtedness (including any interest
accruing after the occurrence of an Event of Default under Section 501(4) or
(5)).
SECTION 1102. Payment Over of Proceeds upon Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshalling of assets and liabilities of the
Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full in cash or cash equivalents of all amounts due or to become due
on or in respect of all Senior Indebtedness, or provision shall be made for
such payment in cash or cash equivalents, before the Holders of the Securities
are entitled to receive any payment on account of principal of (or premium, if
any) or interest on the Securities; and
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, by set-off or otherwise,
to which the Holders or the Trustee would be entitled but for the provisions of
this Article Eleven, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of
the Company being subordinated to the payment of the Securities (except for any
such payment or distribution of securities which (i) are unsecured, (ii) have
an average life and final maturity no shorter than the average life and final
maturity of the Securities and (iii) are subordinated, to at least the same
extent as the Securities, to the payment of all Senior Indebtedness then
outstanding), shall be paid by the liquidating trustee or agent or other person
making such payment or distribution,
43
<PAGE> 50
whether a trustee in bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of Senior Indebtedness or their
Representative or Representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the principal of, and premium, if any, and
interest on, and other amounts due on or in connection with, the Senior
Indebtedness to the extent necessary to make payment in full in cash or cash
equivalents of all Senior Indebtedness remaining unpaid, after giving effect to
any concurrent payment or distribution to the holders of such Senior
Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received any
such payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of the
Securities, before all Senior Indebtedness is paid in full or payment thereof
provided for, then and in such event such payment or distribution shall be paid
over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in cash or cash equivalents, after giving effect to any
concurrent payment or distribution to or for the holders of Senior
Indebtedness.
The consolidation of the Company with, or the merger of the Company
into, another corporation or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another corporation upon the terms and
conditions set forth in Article Eight shall not be deemed a dissolution,
winding up, liquidation, reorganization, assignment for the benefit of
creditors or marshalling of assets and liabilities of the Company for the
purposes of this Section if the corporation formed by such consolidation or
into which the Company is merged or the corporation which acquires by
conveyance, transfer or lease such properties and assets substantially as an
entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance, transfer or lease, comply with the conditions set forth in Article
Eight.
SECTION 1103. No Payment When Senior Indebtedness in Default.
No payment of principal (including redemption payments), premium, if
any, or interest on the Securities may be made (i) if any Senior Indebtedness
is not paid when due, (ii) if any applicable grace period with respect to such
payment default on Senior Indebtedness has ended and such default has not been
cured or waived or ceased to exist, or (iii) if the maturity of any Senior
Indebtedness of the Company has been accelerated because of a default.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, then and in such event such payment shall
be received and held in trust for the holders of Senior Indebtedness and shall
be paid over or delivered to the Representative of Senior Indebtedness then
outstanding to the extent necessary to pay in full in cash or cash equivalents
all Senior Indebtedness.
44
<PAGE> 51
The provisions of this Section shall not apply to any payment with
respect to which Section 1102 would be applicable.
SECTION 1104. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent the Company, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 1102 or under the conditions
described in Section 1103, from making payments at any time of principal of
(and premium, if any) or interest on the Securities.
SECTION 1105. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities shall be subrogated (equally and ratably with the holders of
all indebtedness of the Company which by its express terms is subordinated to
Senior Indebtedness of the Company to the same extent as the Securities are
subordinated and which is entitled to like rights of subrogation) to the rights
of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to the holders of Senior
Indebtedness by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Indebtedness, and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
SECTION 1106. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest
on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other
than the holders of Senior Indebtedness; or (c) prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the express
limitations set forth in Article Five and to the rights, if any, under this
Article of the holders of Senior Indebtedness (1) in any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of
creditors or other marshalling of assets and liabilities of the Company
referred to in Section 1102, to receive, pursuant to and in accordance with
such Section, cash, property and securities otherwise
45
<PAGE> 52
payable or deliverable to the Trustee or such Holder, or (2) under the
conditions specified in Section 1103, to prevent any payment prohibited by such
Section.
SECTION 1107. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1108. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (a) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (b) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (c) release any Person liable in any manner for
the collection of Senior Indebtedness; and (d) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 1109. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payments to or by the Trustee in respect of the Securities,
unless and until the Trustee shall have received written notice thereof at the
Corporate Trust Office of the Trustee from the Company or a holder of Senior
Indebtedness or from any trustee, fiduciary or agent therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of Section 603, 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 1109 at least three 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 (and
premium, if any) or interest on any Security), 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 purpose for
46
<PAGE> 53
which such money was received and shall not be affected by any notice to the
contrary which may be received by it within three Business Days prior to such
date. Nothing in this Section 1109 shall limit the right of the holders of
Senior Indebtedness to recover payments as contemplated by Section 1102 and
1103.
Subject to the provisions of Section 603, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor). 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 Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of 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 this Article, 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.
SECTION 1110. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 603, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 1111. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
47
<PAGE> 54
SECTION 1112. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that (i) Section 1111 shall not apply to the Company or any Affiliate
of the Company if it or such Affiliate acts as Paying Agent and (ii) any notice
required by this Article Eleven to be given by the holders of, or a
Representative for, Senior Indebtedness need only be given to the Trustee and
not to any Paying Agent.
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. Optional Redemption.
(a) At any time on or after December 31, 2001, the Company shall have
the right to redeem the Securities, in whole or in part, from time to time, at
a Redemption Price equal to 100% of the principal amount of Securities to be
redeemed plus accrued but unpaid interest, including any Additional Interest,
if any, to the Redemption Date.
(b) If, at any time, a Partnership Tax Event or a Partnership
Investment Company Event (each a "Partnership Special Event") shall occur and
be continuing, the Company may, within 90 days following the occurrence of such
Partnership Special Event, elect to redeem the Securities in whole (but not in
part), upon not less than 30 or more than 60 days' notice at the Redemption
Price, provided that, if at the time there is available to the Company or the
Partnership the opportunity to eliminate, within such 90-day period, the
Partnership Special Event by taking some ministerial action, such as filing a
form or making an election, or pursuing some other similar reasonable such
measure that in the sole judgment of the Company has or will cause no adverse
effect on the Partnership, the Trust or the Company, the Company will pursue
such measure in lieu of redemption. SECTION 1202. Applicability of Article.
Redemption of Securities, at the election of the Company as permitted
by Section 1201, shall be made in accordance with such provision and this
Article.
SECTION 1203. Authorization for Redemption; Notice to Trustee.
The election of the Company to redeem Securities pursuant to Section
1201 shall be evidenced by a Board Resolution. In case of any redemption, the
Company shall, at least 30 days and no more than 60 days prior to the
Redemption Date fixed by the Company, notify the Trustee of such Redemption
Date and of the principal amount of Securities to be redeemed and provide a
copy of the notice of redemption given to Holders of Securities to be redeemed
pursuant to Section 1204.
48
<PAGE> 55
SECTION 1204. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed (unless such
redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Securities not previously called for
redemption, by such method (including pro rata or by lot) as the Trustee shall
deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to $25 or any integral multiple thereof) of the
principal amount of the Securities.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to
be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1205. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to be redeemed
and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that on the Redemption Date the Redemption Price will become due
and payable upon each such security to be redeemed and that interest thereon
will cease to accrue on and after said date, and
(4) the place or places where such securities are to be surrendered
for payment of the Redemption Price.
49
<PAGE> 56
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1206. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1207. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at the rate borne by the Security.
SECTION 1208. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a place of payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. The Company may not redeem fewer than all the
Outstanding Securities unless all accrued and unpaid interest (including
Additional Interest) has been paid on such Securities.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
50
<PAGE> 57
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
ENRON CORP., as Issuer
By: /s/ William D. Gathmann
------------------------
William D. Gathmann
Vice President and Treasurer
THE CHASE MANHATTAN BANK, as Trustee
By: /s/ Ronald Halleran
---------------------
Ronald Halleran
Second Vice President
51
<PAGE> 1
EXHIBIT 4.7
ENRON PIPELINE COMPANY,
ISSUER,
ENRON CORP.,
GUARANTOR,
AND
THE CHASE MANHATTAN BANK, TRUSTEE
______________________
INDENTURE
DATED AS OF NOVEMBER 21, 1996
________________________
7.75 DEBENTURES
DUE 2016
<PAGE> 2
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- ----------- -------
<S> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 1004
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104(c)
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
___________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
-----
<S> <C> <C>
ARTICLE ONE
Definitions and other Provisions
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 104. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 105. Notices, Etc., to Trustee, the Company and the Guarantor . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 202. Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 203. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 204. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE THREE
The Securities
SECTION 301. Title and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C> <C>
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE FIVE
Remedies
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . . . 25
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 505. Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . . . . . . . . 26
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest . . . . . . . . . . . . . . . . . . 27
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . . 35
SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 614. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
</TABLE>
ii
<PAGE> 5
<TABLE>
<S> <C> <C>
ARTICLE SEVEN
Holders' Lists and Reports by Trustee
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . 35
SECTION 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company or Guarantor May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE TEN
Covenants; Representations and Warranties
SECTION 1001. Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 1003. Money for Security Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 1004. Reports by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 1005. Negative Pledge and Exceptions Thereto . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 1006. Statement as to Compliance; Notice of Certain Events of Default . . . . . . . . . . . . . . . . . . 44
ARTICLE ELEVEN
Guarantee
SECTION 1101. Securities Entitled to Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
</TABLE>
iii
<PAGE> 6
<TABLE>
<S> <C> <C>
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 1202. Mandatory Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 1203. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 1204. Authorization for Redemption; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 1205. Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 1206. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1207. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1208. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1209. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
</TABLE>
iv
<PAGE> 7
INDENTURE, dated as of November 21, 1996, by and among Enron Pipeline
Company, a corporation duly organized and validly existing under the laws of
the State of Delaware (the "Company"), Enron Corp., a corporation duly
organized and validly existing under the laws of the State of Delaware (the
"Guarantor") to The Chase Manhattan Bank, a New York banking corporation (the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance of its 7.75% Debentures due 2016 (the "Securities")
as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
RECITALS OF THE GUARANTOR
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its Guarantee as herein provided.
All things necessary to make this Indenture a valid agreement of the
Guarantor, in accordance with its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed as follows for the
equal and ratable benefit of the Holders of the Securities:
ARTICLE ONE
Definitions and other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
<PAGE> 8
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
and
(4) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Interest" means interest that shall accrue on any interest on
the Securities that is in arrears for more than one quarter or not paid during
an Extension Period, which in either case shall accrue at the rate of 7.75% per
annum compounded quarterly.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant or Deputy Secretary of the Company or the Guarantor, as
applicable, to have been duly adopted by certification, and delivered to the
Trustee.
"Business Day" means a day other than a day on which banking institutions in
the City of New York are authorized or required by law to close.
"Change of Control" means the occurrence of any of the following events: (i)
a "Person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934 and other than the Guarantor) becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of voting securities having more than 50% of the voting power of the
total voting securities of the Company on a fully diluted basis; or (ii) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Subsidiaries taken as a
whole to any such "person" or "group" (other than to the Guarantor or a wholly
owned Subsidiary of the Guarantor).
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
2
<PAGE> 9
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order signed
in the name of the Company by its Chairman, a Vice Chairman, its President or a
Vice President and delivered to the Trustee.
"Consolidated Net Tangible Assets" means total assets less (a) total current
liabilities (excluding indebtedness due within 12 months) and (b) goodwill,
patents and trademarks, all as reflected in the Company's audited consolidated
balance sheet preceding the date of a determination under the last paragraph of
Section 1005.
"Corporate Trust Office" means the principal office of the Trustee in New
York, New York, at which at any particular time its corporate trust business
shall be administered and which at the date of this Indenture is 450 West 33rd
Street - 15th Floor, New York, New York 10001.
"Defaulted Interest" has the meaning specified in Section 307.
"Event of Default" has the meaning specified in Section 501.
"Extension Period" has the meaning specified in Section 301.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the United
States Code, as amended from time to time.
"Funded Debt" as applied to any corporation means all indebtedness incurred,
created, assumed or guaranteed by such corporation, or upon which it
customarily pays interest charges, which matures, or is renewable by such
corporation to a date, more than one year after the date as of which Funded
Debt is being determined; provided, however, that the term "Funded Debt" shall
not include (i) indebtedness incurred in the ordinary course of business
representing borrowings, regardless of when payable, of such corporation from
time to time against, but not in excess of the face amount of, its installment
accounts receivable for the sale of appliances and equipment sold in the
regular course of business or (ii) advances for construction and security
deposits received by such corporation in the ordinary course of business
"General Partner" means the Guarantor, in its capacity as general partner of
the Partnership.
"Guarantee" means the Affiliate Debenture Guarantee Agreement, dated as of
the date hereof, entered into by the Guarantor for the benefit of the Holders
of the Securities.
"Guarantor" means Enron Corp., and any successor thereto.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
3
<PAGE> 10
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including,
for all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and
govern this instrument and any such supplemental indenture, respectively.
"Interest Payment Date", when used with respect to any installment of
interest on a Security, means the date specified in such Security as the fixed
date on which an installment of interest with respect to the Securities is due
and payable.
"Limited Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership, dated as of November 21, 1996, of the Partnership, as
amended, modified or otherwise supplemented from time to time.
"Maturity", when used with respect to any Security, means the date on which
the original of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by (i) the Chairman, a
Vice Chairman, the President, a Managing Director, a Vice President, or the
Treasurer of the Company or the Guarantor and (ii) the Secretary or an
Assistant or Deputy Secretary of the Company or the Guarantor and delivered to
the Trustee; provided, however, that such certificate may be signed by two of
the officers or directors listed in clause (i) above in lieu of being signed by
one of such officers or directors listed in such clause (i) and one of the
officers listed in clause (ii) above. One of the officers signing an Officer's
Certificate given pursuant to Section 1004 shall be the principal executive,
financial or accounting officer of the Company. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Indenture shall include:
(a) a statement that each officer signing the Officers' Certificate has read
the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with;
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with; and
(e) a statement that one of the officers signing such Officers' Certificate
is the principal executive, financial or accounting officer of the Company.
4
<PAGE> 11
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company or the Guarantor.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except: (i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation; (ii) Securities for whose payment or
redemption money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made; and (iii) Securities which have been paid pursuant to Section
401, or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company.
"Partnership" means Enron Preferred Funding, L.P., a Delaware limited
partnership, and any successor thereto.
"Partnership Investment Company Event" means that the General Partner shall
have requested and received an opinion of nationally recognized independent
legal counsel experienced in such matters to the effect that as a result of the
occurrence on or after the date hereof of a change in law or regulation or a
change in interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority, the Partnership is or
will be considered an "investment company" which is required to be registered
under the Investment Company Act of 1940.
"Partnership Preferred Securities" means the limited partnership interests
issued pursuant to the Limited Partnership Agreement.
"Partnership Special Event" means either a Partnership Investment Company
Event or a Partnership Tax Event.
"Partnership Tax Event" means that the Guarantor, as the general partner of
the Partnership, shall have requested and received an opinion of nationally
recognized independent tax counsel experienced in such matters to the effect
that there has been a Tax Action which affects any of the events described in
(i) through (iii) below and that there is more than an insubstantial risk that
(i) the Partnership is, or will be subject to United States federal income tax
with respect to income accrued or received on the Affiliate Investment
Instruments or the Eligible Debt Securities (each as defined in the Limited
Partnership Agreement), (ii) the Partnership is, or will be subject to more
than a de minimis amount of other taxes, duties or other governmental charges
or (iii) interest payable by one or more of the obligors with respect to the
Affiliate Investment Instruments to the Partnership is not, or will not be,
deductible by the Company for United States federal income tax purposes.
5
<PAGE> 12
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company which shall
initially be The Chase Manhattan Bank.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Securities" means the Partnership Preferred Securities and the
Trust Preferred Securities.
"Principal Property" means any oil or gas pipeline, gas processing plant or
chemical plant located in the United States, except any such property, pipeline
or plant that in the opinion of the Board of Directors is not of material
importance to the total business conducted by the Company and its Subsidiaries.
"Principal Property" shall not include any oil or gas property or the
production or any proceeds of production from an oil or gas producing property
or the production or any proceeds of production of gas processing plants or oil
or gas or petroleum products in any pipeline.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
means the Business Day next preceding such Interest Payment Date.
"Representative" means an indenture trustee or other trustee, agent or
representative for an issue of Senior Indebtedness.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the Corporate Trust Office including any Vice President,
Assistant Vice President, Secretary, Assistant Secretary or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's knowledge and familiarity with the particular subject.
"Securities" has the meaning specified in the Recitals to this instrument.
6
<PAGE> 13
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any installment
of interest thereon, means the date specified in such Security as the fixed
date on which the principal, together with any accrued and unpaid interest
(including Additional Interest), of such Security or such installment of
interest is due and payable.
"Subsidiary" means any Person a majority of the equity ownership or the
Voting Stock of which is at the time owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"Tax Action" means that there has been (a) an 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, (b) a judicial decision interpreting, applying, or clarifying such
laws or regulations, (c) an administrative pronouncement or action that
represents an official position (including a clarification of an official
position) of the governmental authority or regulatory body making such
administrative pronouncement or taking such action, or (d) a threatened
challenge asserted in connection with an audit of the Guarantor or any of its
Subsidiaries, the Partnership, or the Trust, or a threatened challenge asserted
in writing in connection with any other taxpayer that has raised capital
through the issuance of securities that are substantially similar to the
Securities, the Partnership Preferred Securities, or the Trust Preferred
Securities, which amendment or change is adopted or which decision or
pronouncement is announced or which action, clarification or challenge occurs
on or after the date of this Indenture.
"Trust" means Enron Capital Trust I, a Delaware business trust, and any
successor thereto.
"Trust Agreement" has the meaning specified in the first paragraph of this
instrument.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
7
<PAGE> 14
"Trust Preferred Securities" means the 8.30% Trust Originated Preferred
Securities, liquidation amount $25 per Trust Preferred Security, issued
pursuant to the Trust Agreement.
"Vice President", when used with respect to the Company, the Guarantor or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or the Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company
or the Guarantor shall furnish the Trustee an Officers' Certificate stating
that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual
8
<PAGE> 15
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form any instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company and/or the
Guarantor. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 601) conclusive in favor
of the Trustee and the Company and the Guarantor, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
a certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust Indenture
Act, fix any day as the record date for the purpose of determining the Holders
entitled to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of
the most recent list of Holders required to be provided pursuant to Section
701) prior to such first solicitation or vote, as the case may be. With regard
to any record date, only the Holders on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security Register.
9
<PAGE> 16
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, Etc., to Trustee, the Company and the Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or the Guarantor shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Global Trust
Services, or
(2) the Company or the Guarantor by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
or the Guarantor addressed to it at the address of its principal office
specified below or at any other address previously furnished in writing to the
Trustee by the Company or the Guarantor, as the case may be.
If to the Company or the Guarantor to:
Enron Corp.
1400 Smith Street
Houston, Texas 77002
Attention: Treasurer
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in a
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
10
<PAGE> 17
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
The Company will have the right at all times to assign any of its rights or
obligations under this Indenture to a direct or indirect wholly-owned
Subsidiary, provided that, in the event of any such assignment, the Company
will remain liable for all such obligations. Subject to the foregoing, this
Indenture is binding upon and inures to the benefit of the parties hereto and
their respective successors and assigns. This Indenture may not otherwise be
assigned by the parties hereto.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness, the holders of Preferred
Securities (to the extent provided herein) and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
11
<PAGE> 18
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal of the Securities shall 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 of interest or principal of the Securities, as the case may
be, shall be made on the immediately preceding Business Day, in each case, with
the same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity and with no reduction in interest or principal
in respect of such early payment.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these or other methods, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 202. Form of Face of Security.
ENRON PIPELINE COMPANY
7.75% Debenture,
Due 2016
No. _____________ $________
Enron Pipeline Company, a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ________________, or registered
assigns, the principal sum of ________ DOLLARS ($________) on September 30,
2016 and to pay interest on said principal sum from November 21, 1996 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
12
<PAGE> 19
March 31, June 30, September 30 and December 31 of each year, commencing
December 31, 1996, at the rate of 7.75% per annum plus Additional Interest, if
any, until the principal hereof shall have become due and payable, and on any
overdue principal. The amount of interest payable for any period will be
computed on the basis of twelve 30-day months and a 360-day year. In the event
that any date on which interest is payable on this Security is not a Business
Day, then a payment of the 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 the date the payment was originally payable. A "Business Day"
shall mean any day other than a day on which banking institutions in the City
of New York are authorized or required by law to remain closed. 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 Security (or one or more Predecessor Securities, as defined
in the 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. Any such interest
installment not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
The Company shall have the right at any time during the term of this
Security, from time to time, to extend the interest payment period of such
Security for up to six consecutive quarters (an "Extension Period"), during
which periods interest will compound quarterly and the Company shall have the
right to make partial payments of interest on any Interest Payment Date, and at
the end of which Extension Period the Company shall pay all interest then
accrued and unpaid (together with Additional Interest thereon to the extent
that payment of such interest is permitted by applicable law). Prior to the
termination of any such Extension Period, the Company may further extend the
interest payment period, provided that such Extension Period together with all
such previous and further extensions thereof shall not exceed six consecutive
quarters or extend beyond the Maturity of this Security. Upon the termination
of any such Extension Period and upon the payment of all accrued and unpaid
interest and any Additional Interest then due, the Company may select a new
Extension Period, subject to the foregoing requirements. No interest shall be
due and payable during an Extension Period except at the end thereof. The
Company shall give the Holder of this Security and the Trustee written notice
of its selection of an Extension Period at least one Business Day prior to the
earlier of (i) the Interest Payment Date or (ii) the date Enron Capital Trust I
is required to give notice to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Trust Preferred Securities of
the record date or the date such distributions are payable, but in any event
not less than one Business Day prior to such record date.
13
<PAGE> 20
Payment of the principal of and interest on this Security will be made at
the office or agency of the Company maintained for that purpose in New York,
New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made (i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or (ii) by wire transfer in
immediately available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Security
Register.
Reference is hereby made to the further provisions of the Indenture
summarized on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, Enron Pipeline Company has caused this instrument to be
duly executed under its corporate seal.
Dated: ________, 1996
ENRON PIPELINE COMPANY
By:
-----------------------------------
Name:
Title:
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company, designated as its 7.75% Debentures Due 2016 (herein called the
"Securities"), limited in aggregate principal amount to $29,108,000 issued
under an Indenture, dated as of November 21, 1996 (herein called the
"Indenture"), among the Company, Enron Corp., as Guarantor (herein called the
"Guarantor, which term includes any successor corporation that shall become the
Guarantor under the Indenture) and The Chase Manhattan Bank, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Trustee, the Company, the
Guarantor and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
14
<PAGE> 21
At any time on or after December 31, 2001, the Company shall have the right,
subject to the terms and conditions of Article Twelve of the Indenture, to
redeem this Security at the option of the Company, without premium or penalty,
in whole or in part, at a Redemption Price equal to 100% of the principal
amount to be redeemed plus accrued but unpaid interest, including any
Additional Interest, if any, to the Redemption Date. If a Partnership Special
Event shall occur and be continuing, the Company shall have the right, subject
to the terms and conditions of Article Twelve of the Indenture, to redeem this
Security, without premium or penalty, in whole but not in part, at a Redemption
Price equal to 100% of the principal amount thereof plus accrued but unpaid
interest, including any Additional Interest, if any, to the Redemption Date.
Any redemption pursuant to this paragraph will be made upon not less than 30
nor more than 60 days' notice, at the Redemption Price. If the Securities are
only partially redeemed by the Company, the Securities will be redeemed pro
rata, by lot or in such other manner as the Trustee shall deem appropriate and
fair in its discretion and that may provide for the selection of a portion or
portions (equal to twenty-five U.S. dollars ($25) or any integral multiple
thereof) of the principal amount of any Security.
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
If an Event of Default with respect to the Securities shall occur and be
continuing, the principal of the Securities may be declared due and payable in
the manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions for satisfaction and discharge at any time
of the entire indebtedness of this Security upon compliance by the Company with
certain conditions set forth in the Indenture.
The Indenture contains provisions permitting the Company or the Guarantor
and the Trustee, with the consent of Holders of not less than a majority in
principal amount of the Outstanding Securities, to modify the Indenture in a
manner affecting the rights of the Holders of the Securities; provided that no
such modification may, without the consent of the Holder of each Outstanding
Security, (i) extend the fixed maturity of the Securities, or 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, or
(ii) reduce the percentage of principal amount of the Securities, the Holders
of which are required to consent to any such modification of the Indenture.
The Indenture also contains provisions permitting Holders of specified
percentages in principal amount of the Securities at the time Outstanding, on
behalf of the Holders of all Securities, to waive compliance by the Company or
the Guarantor with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the
15
<PAGE> 22
principal of and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in New York, New York, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees. No service charge shall be made for
any such registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this security for registration of transfer, the
Company, the Guarantor, the Trustee and any of their respective agents may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security shall be overdue, and neither
the Company, the Guarantor, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Securities 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 therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned Indenture.
[NAME OF TRUSTEE], as Trustee
By:
-----------------------------------
Authorized Signatory
16
<PAGE> 23
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is limited to $29,108,000, except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other securities pursuant to Section 303, 304, 305, 306,
906 or 1209.
The Securities shall be known and designated as the "7.75% Debentures Due
2016" of the Company. Their Stated Maturity shall be September 30, 2016, and
they shall bear interest at the rate of 7.75% per annum, from November 21, 1996
or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, as the case may be, payable 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, 1996 until the principal
thereof is paid or made available for payment. Interest will compound
quarterly and will accrue at the rate of 7.75% per annum on any interest
installment in arrears for more than one quarter or during an extension of an
interest payment period as set forth below in this Section 301. In the event
that any date on which interest is payable on the Securities is not a Business
Day, then a payment of the interest payable on such date will be made on the
next succeeding day which is a Business Day (except that, if such Business Day
is in the next succeeding calendar year, such Interest Payment Date shall be
the immediately preceding Business Day) (and without any interest or other
payment in respect of any such delay).
The Company shall have the right, at any time during the term of the
Securities, from time to time to extend the interest payment period for up to
six consecutive quarters (the "Extension Period") during which period interest
will compound quarterly and the Company shall have the right to make partial
payments of interest on any Interest Payment Date, and at the end of which
Extension Period the Company shall pay all interest then accrued and unpaid
thereon (together with Additional Interest at the rate specified for the
Securities to the extent permitted by applicable law). Prior to the
termination of any such Extension Period, the Company may further extend the
interest payment period, provided that such Extension Period together with all
such previous and further extensions thereof shall not exceed six consecutive
quarters or extend beyond the Maturity of the Securities. Upon the termination
of any Extension Period and upon the payment of all accrued and unpaid interest
and any Additional Interest then due, the Company may select a new Extension
Period, subject to the foregoing requirements. No interest shall be due and
payable during an Extension Period, except at the end thereof. The Company
shall give the Trust, the Partnership and the Trustee notice of its selection
of such Extension Period subject to the above requirements at least one
Business Day prior to the earlier of (i) the Interest Payment Date or (ii) the
date the Trust is required to give notice to the New York Stock Exchange or
other applicable self-regulatory organization or to holders of the Trust
Preferred Securities of the record date or the date such distributions are
payable, but in any event not less than one Business Day prior to such record
date.
17
<PAGE> 24
The principal of and interest on the Securities shall be payable at the
office or agency of the Company in the United States maintained for such
purpose and at any other office or agency maintained by the Company for such
purpose in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made (i)
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or (ii) by wire transfer in immediately
available funds at such place and to such account as may be designated by the
Person entitled thereto as specified in the Security Register.
The Securities shall be guaranteed by the Guarantor as provided in Article
Eleven.
The Securities shall be redeemable as provided in Article Twelve.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form, without coupons,
and only in denominations of $25 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman,
one of its Vice Chairman, its President, one of its Managing Directors or one
of its Vice Presidents. The signature of any of these officers on the
securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.
18
<PAGE> 25
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
of authorized denominations. Until so exchanged the temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an office or
agency of the Company designated pursuant to Section 1002 for such purpose, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
any authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or excess of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written
19
<PAGE> 26
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906 or 1209 not involving any transfer.
If the Securities are to be redeemed in part, the Company will not be
required to issue, register the transfer of or exchange any Securities during a
period beginning at the opening of business 15 days before the day of mailing
of a notice of redemption of any such Securities that may be selected for
redemption and ending at the close of business on the day of such mailing,
except the unredeemed portion of any such Securities being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any security and (ii)
such security or indemnity as may be required by them to save each of them and
any of their officers, directors, employees or agents of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities duly issued hereunder.
20
<PAGE> 27
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) the Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the date
of the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause
(2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and, if so listed, upon such notice as
may be required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
21
<PAGE> 28
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue (including in each such case Additional Interest), which
were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of any of them shall treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 307) interest (including Additional Interest) on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Guarantor, the Trustee nor any agent of them shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer
or exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Company or
the Guarantor may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
or the Guarantor may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. No Securities shall
be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of as directed by a
Company Order.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day year
of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for and any amounts owed to the Trustee hereunder), and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
22
<PAGE> 29
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for thegiving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust
for the purpose and amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest (including Additional Interest) to
the date of such deposit (in the case of Securities which have become due
and payable) or to the StatedMaturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with. Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607 and,
if money shall have been deposited with the Trustee pursuant to subclause (B)
of Clause (1) of this Section, the obligations of the Trustee under Section 402
and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with the Trustee. The Trustee
shall not invest money deposited with it pending distribution of such amounts.
23
<PAGE> 30
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the following
events that has occurred and is continuing (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) failure for 90 days to pay any interest on the Securities, including any
Additional Interest in respect thereof, when due (subject to the deferral of
any due date in the case of an Extension Period); or
(2) failure to pay any principal on the Securities when due whether at
Stated Maturity, upon redemption by declaration or otherwise; or
(3) failure to observe or perform in any material respect any other covenant
herein for 90 days after written notice of such failure (specified as a "Notice
of Default"), requiring the Company to remedy the same shall have been given to
the Company and the Guarantor by the Trustee or the holders of at least 25% in
principal amount of the Outstanding Securities; or
(4) a court or governmental agency having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Company or the Guarantor
in an involuntary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or the Guarantor or for all or substantially all of
its property or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(5) the Company or the Guarantor shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or the Guarantor or for all or substantially all of
its property or make any general assignment for the benefit of creditors; or
the Company or the Guarantor shall admit in writing its inability to pay its
debts generally as they become due.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in aggregate principal amount
of the Outstanding Securities shall have the right to declare the principal of
and the interest on all the Securities (including any Additional Interest) and
any other amounts payable hereunder to be due and payable immediately,
24
<PAGE> 31
by a notice in writing to the Company and the Guarantor (and to the Trustee if
given by Holders) and to enforce any and all other rights of Holders of
Securities as creditors with respect to the Securities. Upon any such
declaration such principal and all accrued interest shall become immediately
due and payable.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Company and the Guarantor and the Trustee, may rescind and annul such
declaration and its consequences if:
(1) the Company or the Guarantor has paid or deposited with the Trustee a
sum sufficient to pay,
(A) all overdue interest (including any Additional Interest) on all
Securities,
(B) the principal of any Securities which have became due otherwise
than by such declaration of acceleration and interest thereon at the rate borne
by the Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the principal of
Securities which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon. SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest (including any Additional
Interest) on any Security when such interest becomes due and payable and such
default continues for a period of 90 days (subject to the deferral of any due
and payable interest in the case of an Extension Period), or
(2) default is made in the payment of the principal of any Security at the
Maturity thereof, the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and interest (including any Additional
Interest), at the rate borne by the Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the
25
<PAGE> 32
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company or the Guarantor,
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Eleven, any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal or interest (including any Additional Interest), upon presentation
of the Securities and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
26
<PAGE> 33
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of
and interest (including any Additional Interest) on the Securities in respect
of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and interest (including any Additional
Interest), respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee such indemnity as is
satisfactory to it against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities; it being understood and intended that no
one or more Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and (subject to Section 307) interest (including
any Additional Interest) on such Security on the respective Stated Maturities
(subject to the deferral of any due date in the case of an Extension Period)
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the
27
<PAGE> 34
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Guarantor, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy. SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
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
(1) such direction shall not be in conflict with any rule of law or with
this Indenture; and
(2) the Trustee may take any other action deemed proper by the Trustee which
is not inconsistent with such direction.
28
<PAGE> 35
SECTION 513. Waiver of Past Defaults.
Subject to Section 902, the Holders of not less than a majority in principal
amount of the Outstanding Securities may on behalf of the Holders of all the
Securities waive any past default hereunder and its consequences, except a
default
(1) in the payment of the principal of or interest (including any Additional
Interest) on any Security (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration have been deposited with the Trustee); or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
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, suffered or omitted by
it as Trustee, a court may require any party litigant in such court to file an
undertaking to pay the costs of such suit, and may assess costs against any
such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to
make such an assessment in any suit instituted by the Company or the Trustee or
in any suit for the enforcement of the right to receive the principal of and
interest (including any Additional Interest) on any Security.
SECTION 515. Acknowledgement.
The Company and the Guarantor acknowledge that so long as the Partnership is
a Holder, a holder of record of Preferred Securities may to the fullest extent
permitted by law on behalf of the Partnership, when and as provided in the
Limited Partnership Agreement, directly institute a legal proceeding against
the Company under this Indenture or against the Guarantor under the Guarantee,
without first instituting any legal proceeding against the Property Trustee (as
such term is defined in the Limited Partnership Agreement) or any other party.
29
<PAGE> 36
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default actually known to a
Responsible Officer of the Trustee hereunder as and to the extent provided by
the Trust Indenture Act; provided, however, that in the case of any default of
the character specified in Section 501(3), no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be fully protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice at the Company's and
the Guarantor's expense and the advice of such counsel or any Opinion of
Counsel shall be full and complete
30
<PAGE> 37
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
(i) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur 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 to believe that repayments of such funds or
indemnity satisfactory to it against any loss, liability or expense is not
reasonably assured to it.
(j) The Trustee shall have no duty to monitor the performance of the
Company or the Guarantor or their compliance with the covenants contained
herein, nor shall it have any liability in connection with the malfeasance or
nonfeasance by such parties.
(k) Any Paying Agent, Authenticating Agent or Security Registrar appointed
hereunder, shall be entitled to all the rights, protections, immunities and
indemnities afforded to the Trustee hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or
31
<PAGE> 38
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar, or any other agent of
the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar, or such other agent. Money held by the
Trustee in trust hereunder shall not be invested by the Trustee pending
distribution thereof to the holders of the Securities.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 607. Compensation and Reimbursement.
The Company and the Guarantor agree
(1) to pay to the Trustee from time to time such reasonable compensation as
the Company, the Guarantor and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable fees, charges, expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture or arising out of or in conection with the acceptance or
administrating of this Trust (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee and its officers, directors, employees and
agents for, and to hold them harmless against, any and all loss, damage, claim,
liability or expense, including taxes (other than taxes based on the income of
the Trustee) incurred without negligence or bad faith on their part, arising
out of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder.
The provisions of this Section shall survive the termination of this
Indenture or the resignation or removal of the Trustee.
32
<PAGE> 39
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person that
is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 and has its Corporate
Trust Office in New York, New York, if such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request
therefor by the Company, by the Guarantor or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail
to resign after written request therefor by the Company or by any such Holder,
or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
33
<PAGE> 40
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
(g) No retiring Trustee hereunder shall be liable for the acts or omissions
of any successor Trustee.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company, to the Guarantor and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; provided that, on
request of the Company, the Guarantor or the successor Trustee, such retiring
Trustee shall, upon payment of its fees, charges and expenses, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company and
the Guarantor shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
34
<PAGE> 41
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company, or the
Guarantor, the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Company (or any
such other obligor).
SECTION 614. Expenses.
When the Trustee incurs expenses or renders services in connection with an
Event of Default, or any bankruptcy or insolvency in respect of the Company or
the Guarantor such expenses (including the fees and expenses of its counsel)
and the compensation for such services are intended to constitute expenses of
administration under any bankruptcy law or law relating to creditors' rights
generally.
ARTICLE SEVEN
Holders' Lists and Reports by Trustee
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not later than the last day of June and December in each
year, a list, in such form as the Trustee may reasonably require, of the names
and addresses of all Holders as of a date not more than 15 days prior to the
delivery thereof who were not Holders at the date of the Company had previously
provided such list (or, in the case of the initial provision of such list, at
the date of issuance of the Securities), and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished; excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
35
<PAGE> 42
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company, the Guarantor and the Trustee that neither the Company, the
Guarantor nor the Trustee nor any agent of any of them shall be held
accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, and with the Company and the Guarantor. The Company
will notify the Trustee when the Securities are listed on any stock exchange.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company or Guarantor May Consolidate, Etc., Only on Certain
Terms.
Each of the Company and the Guarantor covenants that it will not merge or
consolidate with any other corporation or other entity or sell or convey all or
substantially all of its assets to any person (other than such a sale or
conveyance to a Subsidiary or any successor thereto (such a sale or conveyance
being called an "Asset Drop-Down")), unless (i) either the Company or the
Guarantor shall be the continuing corporation or the successor corporation or
other entity or the person which acquires by sale or conveyance substantially
all the assets of the Company or the Guarantor shall expressly assume the due
and punctual payment of the principal of, premium, if any, and interest, if
any, on all the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Company or the Guarantor, by
supplemental indenture in form satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation or other entity, and (ii) the
Company, the
36
<PAGE> 43
Guarantor or such successor corporation or other entity, as the case may be,
shall not, immediately after such merger or consolidation, or such sale or
conveyance, be in default in the performance of any such covenant or condition.
In the event of any Asset Drop-Down after the date of this Indenture, any
subsequent sale or conveyance of assets by a Subsidiary to which assets were
transferred in such Asset Drop-Down (a "Drop-Down Subsidiary") will be deemed
to be a sale or conveyance of assets by the Company or the Guarantor for
purposes of this Section 801.
SECTION 802. Successor Substituted.
In case of any such consolidation, merger, sale or conveyance, and following
such an assumption by the successor corporation, such successor corporation
shall succeed to and be substituted for the Company or the Guarantor, with the
same effect as if it had been named herein. Such successor corporation may
cause to be signed, and may issue either in its own name or in the name of the
Company or the Guarantor prior to such succession any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Company
and guaranteed by the Guarantor and delivered to the Trustee; and, upon the
order of such successor corporation instead of the Company or the Guarantor and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
which previously shall have been signed and delivered by the officers of the
Company and the Guarantor to the Trustee for authentication, and any
Securities which such successor corporation thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All of the Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Securities theretofore or thereafter issued in accordance with the terms
of this Indenture as though all of such Securities had been issued at the date
of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by way
of lease) the Company, the Guarantor or any successor corporation which shall
theretofore have become such in the manner described in this Article shall be
released and discharged from all obligations and covenants under this
Indenture.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Guarantor, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
37
<PAGE> 44
(1) to evidence the succession of another Person to the Company or the
Guarantor and the assumption by any such successor of the covenants of the
Company or the Guarantor herein and in the Securities;
(2) to add to the covenants of the Company or the Guarantor for the benefit
of the Holders, or to surrender any right or power herein or in the Securities
conferred upon the Company or the Guarantor;
(3) to cure any ambiguity or to correct any provision herein which may be
defective or inconsistent with any other provision herein;
(4) to comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act, as
contemplated by Section 905 or otherwise;
(5) to evidence and provide the acceptance of the appointment of a successor
Trustee hereunder; or
(6) to make any other change that does not adversely affect the rights of
any Holder.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities, by Act of said Holders delivered to the
Company, the Guarantor and the Trustee, the Company, and the Guarantor, when
authorized by a Board Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any installment of
interest (including any Additional Interest) on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, or change the place
of payment where, or the coin or currency in which, any Security or interest
thereon is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or modify the provisions of this
Indenture with respect to the subordination of the Securities in a manner
adverse to the Holders,
(2) reduce the percentage in principal amount of the Outstanding Securities,
the consent of whose Holders is required for any such supplemental indenture,
or the consent of whose Holders in required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
38
<PAGE> 45
(3) modify any of the provisions of this Section or Section 513, except to
increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder
of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an officer's stating that Certificate precedent to the execution of such
supplemented indenture have been fulfilled and an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act.
ARTICLE TEN
Covenants; Representations and Warranties
SECTION 1001. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and interest on
the Securities in accordance with the terms of the Securities and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the United States an office or agency where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange, where Securities may be
surrendered for conversion and where notices and demands to or upon the Company
in respect of the Securities and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and
39
<PAGE> 46
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies (in the United States) where the Securities may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in the United States for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will, on or
at the option of the Company before each due date of the principal of or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on or
prior to each due date of the principal of or interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or interest on any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.
SECTION 1004. Reports by the Company.
The Guarantor shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within
40
<PAGE> 47
15 days after the same is so required to be filed with the Commission.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's or the
Guarantor's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 1005. Negative Pledge and Exceptions Thereto.
So long as any of the Securities are outstanding, the Company will not
pledge, mortgage or hypothecate, or permit to exist, and will not cause, suffer
or permit any Subsidiary to pledge, mortgage or hypothecate, or permit to
exist, except in favor of the Company or any Subsidiary, any mortgage, pledge
or other lien upon, any Principal Property at any time owned by it, to secure
any indebtedness, without making effective provisions whereby the Securities
shall be equally and ratably secured with any and all such indebtedness and
with any other indebtedness similarly entitled to be equally and ratably
secured; provided, however, that this restriction shall not apply to or prevent
the creation or existence of:
(a) undetermined or inchoate liens and charges incidental to
construction, maintenance, development or operation;
(b) the lien of taxes and assessments for the then current year;
(c) the lien of taxes and assessments not at the time delinquent;
(d) the lien of specified taxes and assessments which are
delinquent but the validity of which is being contested at the time by the
Company or such Subsidiary in good faith;
(e) the lien reserved in leases for rent and for compliance with
the terms of the lease in the case of leasehold estates;
(f) any obligations or duties, affecting the property of the
Company or such Subsidiary, to any municipality or public authority with
respect to any franchise, grant, license, permit or similar arrangement;
(g) the liens of any judgments or attachments in an aggregate
amount not in excess of $10,000,000, or the lien of any judgment or
attachment the execution or enforcement of which has been stayed or which
has been appealed and secured, if necessary, by the filing of an appeal
bond;
(h) any mortgage, pledge, lien or encumbrance on any property held
or used by the Company or a Subsidiary in connection with the exploration
for, development of or production of oil, gas, natural gas (including
liquified gas or storage gas), other hydrocarbons, helium, coal, metals,
minerals, steam, timber, geothermal or other natural
41
<PAGE> 48
resources or synthetic fuels, such properties to include, but not be limited
to, the Company's or a Subsidiary's interest in any mineral fee interests,
oil, gas or other mineral leases, royalty, overriding royalty or net profits
interests, production payments and other similar interests, wellhead
production equipment, tanks, field gathering lines, leasehold or field
separation and processing facilities, compression facilities and other
similar personal property and fixtures;
(i) any mortgage, pledge, lien or encumbrance on oil, gas, natural
gas (including liquified gas and storage gas), and other hydrocarbons,
helium, coal, metals, minerals, steam, timber, geothermal or other natural
resources or synthetic fuels produced or recovered from any property, an
interest in which is owned or leased by the Company or a Subsidiary;
(j) mortgages, pledges, liens or encumbrances upon any property
heretofore or hereafter acquired, created at the time of acquisition or
within one year thereafter to secure all or a portion of the purchase price
thereof, or existing thereon at the date of acquisition, whether or not
assumed by the Company or a Subsidiary, provided that every such mortgage,
pledge, lien or encumbrance shall apply only to the property so acquired and
fixed improvements thereon;
(k) any extension, renewal or refunding, in whole or in part, of
any mortgage, pledge, lien or encumbrance permitted by subparagraph (j)
above, if limited to the same property or any portion thereof subject to,
and securing not more than the amount secured by, the mortgage, pledge, lien
or encumbrance extended, renewed or refunded;
(l) mortgages, pledges, liens or encumbrances upon any property
heretofore or hereafter acquired by any corporation that is or becomes a
Subsidiary after the date hereof ("Acquired Entity"), provided that every
such mortgage, pledge, lien or encumbrance (1) shall either (A) exist prior
to the time the Acquired Entity becomes a Subsidiary or (B) be created at
the time the Acquired Entity becomes a Subsidiary or within one year
thereafter to secure all or a portion of the acquisition price thereof and
(2) shall only apply to those properties owned by the Acquired Entity at the
time it becomes a Subsidiary or thereafter acquired by it from sources other
than the Company or any other Subsidiary;
(m) the pledge of current assets, in the ordinary course of
business, to secure current liabilities;
(n) mechanics' or materialmen's liens, any liens or charges
arising by reason of pledges or deposits to secure payment of workmen's
compensation or other insurance, good faith deposits in connection with
tenders, leases of real estate, bids or contracts (other than contracts for
the payment of money), deposits to secure duties or public or statutory
obligations, deposits to secure, or in lieu of, surety, stay or appeal
bonds, and deposits as security for the payment of taxes or assessments or
similar charges;
(o) any lien arising by reason of deposits with, or the giving of
any form of security to, any governmental agency or any body created or
approved by law or governmental regulation for any purpose at any time in
connection with the financing of the
42
<PAGE> 49
acquisition or construction of property to be used in the business of the
Company or a Subsidiary or as required by law or governmental regulation as
a condition to the transaction of any business or the exercise of any
privilege or license, or to enable the Company or a Subsidiary to maintain
self-insurance or to participate in any funds established to cover any
insurance risks or in connection with workmen's compensation, unemployment
insurance, old age pensions or other social security, or to share in the
privileges or benefits required for companies participating in such
arrangements;
(p) any lien to secure indebtedness other than Funded Debt;
(q) any mortgage, pledge, lien or encumbrance of or upon any
office equipment, data processing equipment (including, without limitation,
computer and computer peripheral equipment), or transportation equipment
(including, without limitation, motor vehicles, tractors, trailers, marine
vessels, barges, towboats, rolling stock and aircraft);
(r) any mortgage, pledge, lien or encumbrance created or assumed
by the Company or a Subsidiary in connection with the issuance of debt
securities the interest on which is excludable from gross income of the
holder of such security pursuant to the Internal Revenue Code of 1954, as
amended, for the purpose of financing, in whole or in part, the acquisition
or construction of property to be used by the Company or a Subsidiary; or
(s) the pledge or assignment of accounts receivable, or the pledge
or assignment of conditional sales contracts or chattel mortgages and
evidences of indebtedness secured thereby, received in connection with the
sale by the Company or such Subsidiary or others of goods or merchandise to
customers of the Company or such Subsidiary.
In case the Company or any Subsidiary shall propose to pledge, mortgage or
hypothecate any Principal Property at any time owned by it to secure any
indebtedness, other than as permitted by subdivisions (a) to (s), inclusive, of
this Section 1005, the Company (i) will prior thereto give written notice
thereof to the Trustee, and (ii) will, or will cause such Subsidiary to, prior
to or simultaneously with such pledge, mortgage or hypothecation, enter into a
supplemental indenture with the Trustee (or to the extent legally necessary to
another trustee or additional or separate trustee) that secures all the
Securities equally and ratably with such indebtedness.
Notwithstanding the foregoing provisions of this Section 1005, the Company
or a Subsidiary may issue, assume or guarantee indebtedness secured by mortgage
which would otherwise be subject to the foregoing restrictions in an aggregate
amount which, together with all other indebtedness of the Company or a
Subsidiary secured by a mortgage which (if originally issued, assumed or
guaranteed at such time) would otherwise be subject to the foregoing
restrictions (not including indebtedness permitted to be secured under clauses
(a) through (s) above), does not at the time exceed 10% of the Consolidated Net
Tangible Assets of the Company, as shown on the audited consolidated financial
statements of the Company as of the end of the fiscal year preceding the date
of determination.
43
<PAGE> 50
SECTION 1006. Statement as to Compliance; Notice of Certain Events of Default.
Each of the Company and the Guarantor will, within 120 days after the close
of each fiscal year, commencing with the first fiscal year following the
issuance of Securities under this Indenture, file with the Trustee a
certificate of the principal executive officer, the principal financial officer
or the principal accounting officer of the Company and the Guarantor covering
the period from the date of issuance of such Securities to the end of the
fiscal year in which such Securities were issued, in the case of the first such
certificate, and covering the preceding fiscal year in the case of each
subsequent certificate, and stating whether or not, to the knowledge of the
signer, each of the Company and the Guarantor has complied with all conditions
and covenants on its part contained in this Indenture, and, if the signer has
obtained knowledge of any default by the Guarantor in the performance,
observance or fulfillment of any such condition or covenant, specifying each
such default and the nature thereof. For the purpose of this Section 1007,
compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.
ARTICLE ELEVEN
Guarantee
SECTION 1101. Securities Entitled to Guarantee.
The Securities shall be entitled to all of the rights and benefits of the
Guarantee provided for by the Guarantor in accordance with the terms thereof.
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. Optional Redemption.
(a) At any time on or after December 31, 2001, the Company shall have the
right to redeem the Securities, in whole or in part, from time to time, at a
Redemption Price equal to 100% of the principal amount of Securities to be
redeemed plus accrued but unpaid interest, including any Additional Interest,
if any, to the Redemption Date.
(b) If, at any time, a Partnership Tax Event or a Partnership Investment
Company Event (each a "Partnership Special Event") shall occur and be
continuing, the Company may, within 90 days following the occurrence of such
Partnership Special Event, elect to redeem the Securities in whole (but not in
part), upon not less than 30 or more than 60 days' notice at the Redemption
Price, provided that, if at the time there is available to the Company or the
Partnership the opportunity to eliminate, within such 90-day period, the
Partnership Special Event by taking some ministerial action, such as filing a
form or making an election, or pursuing some other similar reasonable such
measure that in the sole judgment of the Company has or will cause no adverse
effect on the
44
<PAGE> 51
Partnership, the Trust or the Company, the Company will pursue such measure in
lieu of redemption.
SECTION 1202. Mandatory Redemption.
If, at any time, a Change of Control shall occur and be continuing, the
Company shall, as promptly as practicable (and in any event within 90 days
following the occurrence of such Change of Control), redeem the Securities in
whole (but not in part), upon not less than 30 or more than 60 days' notice at
the Redemption Price. As promptly as practicable following a Change of
Control, the Company or the Guarantor shall provide written notice to the
Trustee of such Change of Control.
SECTION 1203. Applicability of Article.
Redemption of Securities, at the election of the Company as permitted by
Section 1201, shall be made in accordance with such provision and this Article.
SECTION 1204. Authorization for Redemption; Notice to Trustee.
The election of the Company to redeem Securities pursuant to Section 1201
shall be evidenced by a Board Resolution. In case of any redemption, the
Company shall, at least 30 days and no more than 60 days prior to the
Redemption Date fixed by the Company, notify the Trustee of such Redemption
Date and of the principal amount of Securities to be redeemed and provide a
copy of the notice of redemption given to Holders of Securities to be redeemed
pursuant to Section 1204.
SECTION 1205. Selection by Trustee of Securities to Be Redeemed.
If less then all the Securities are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities not previously called for redemption, by such
method (including pro rata or by lot) as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $25 or any integral multiple thereof) of the principal amount of the
Securities.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected
for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part,
the unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be
45
<PAGE> 52
redeemed only in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
SECTION 1206. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall identify the Securities to be redeemed and
shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that on the Redemption Date the Redemption Price will become due and
payable upon each such security to be redeemed and that interest thereon will
cease to accrue on and after said date, and
(4) the place or places where such securities are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1207. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1208. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such
46
<PAGE> 53
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by the Security.
SECTION 1209. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
place of payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company, the Guarantor and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Security
so surrendered. The Company may not redeem fewer than all the Outstanding
Securities unless all accrued and unpaid interest (including Additional
Interest) has been paid on such Securities.
This instrument may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
47
<PAGE> 54
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, all as of the day and year first above written.
ENRON PIPELINE COMPANY, as Issuer
By: /s/ William D. Gathmann
------------------------
William D. Gathmann
Vice President
ENRON CORP., as Guarantor
By: /s/ William D. Gathmann
-------------------------
William D. Gathmann
Vice President, Finance and
Treasurer
THE CHASE MANHATTAN BANK, as Trustee
By: /s/ Ronald Halleran
---------------------
Ronald Halleran
Second Vice President
48
<PAGE> 1
EXHIBIT 4.8
ENRON CAPITAL & TRADE RESOURCES CORP.,
ISSUER,
ENRON CORP.,
GUARANTOR,
AND
THE CHASE MANHATTAN BANK, TRUSTEE
______________________
INDENTURE
DATED AS OF NOVEMBER 21, 1996
________________________
7.75 DEBENTURES
DUE 2016
<PAGE> 2
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- ----------- -------
<S> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 1004
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104(c)
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
___________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
-----
<S> <C> <C>
ARTICLE ONE
Definitions and other Provisions
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 104. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 105. Notices, Etc., to Trustee, the Company and the Guarantor . . . . . . . . . . . . . . . . . . . 10
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 202. Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 203. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 204. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE THREE
The Securities
SECTION 301. Title and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . 19
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C> <C>
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE FIVE
Remedies
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . 25
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 505. Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . . . . . 26
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest . . . . . . . . . . . . . . . 27
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . 31
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . 35
SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 614. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
</TABLE>
ii
<PAGE> 5
<TABLE>
<S> <C>
ARTICLE SEVEN
Holders' Lists and Reports by Trustee
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . 35
SECTION 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . . . 36
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company or Guarantor May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE TEN
Covenants; Representations and Warranties
SECTION 1001. Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 1003. Money for Security Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 1004. Reports by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 1005. Negative Pledge and Exceptions Thereto . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 1006. Statement as to Compliance; Notice of Certain Events of Default . . . . . . . . . . . . . . . 44
ARTICLE ELEVEN
Guarantee
SECTION 1101. Securities Entitled to Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
</TABLE>
iii
<PAGE> 6
<TABLE>
<S> <C> <C>
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 1202. Mandatory Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 1203. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 1204. Authorization for Redemption; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 1205. Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 1206. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1207. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1208. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 1209. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
</TABLE>
iv
<PAGE> 7
INDENTURE, dated as of November 21, 1996, by and among Enron Capital &
Trade Resources Corp, a corporation duly organized and validly existing under
the laws of the State of Delaware (the "Company"), Enron Corp., a corporation
duly organized and validly existing under the laws of the State of Delaware
(the "Guarantor") to The Chase Manhattan Bank, a New York banking corporation
(the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its 7.75% Debentures due 2016 (the
"Securities") as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
RECITALS OF THE GUARANTOR
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its Guarantee as herein provided.
All things necessary to make this Indenture a valid agreement of the
Guarantor, in accordance with its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE ONE
Definitions and other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
<PAGE> 8
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Interest" means interest that shall accrue on any interest
on the Securities that is in arrears for more than one quarter or not paid
during an Extension Period, which in either case shall accrue at the rate of
7.75% per annum compounded quarterly.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant or Deputy Secretary of the Company or the Guarantor,
as applicable, to have been duly adopted by certification, and delivered to the
Trustee.
"Business Day" means a day other than a day on which banking
institutions in the City of New York are authorized or required by law to
close.
"Change of Control" means the occurrence of any of the following
events: (i) a "Person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934 and other than the Guarantor)
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934) of voting securities having more than 50% of the voting
power of the total voting securities of the Company on a fully diluted basis;
or (ii) the sale, lease, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions,
of all or substantially all of the assets of the Company and its Subsidiaries
taken as a whole to any such "person" or "group" (other than to the Guarantor
or a wholly owned Subsidiary of the Guarantor).
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
or, if at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
2
<PAGE> 9
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, a Vice Chairman, its
President or a Vice President and delivered to the Trustee.
"Consolidated Net Tangible Assets" means total assets less (a) total
current liabilities (excluding indebtedness due within 12 months) and (b)
goodwill, patents and trademarks, all as reflected in the Company's audited
consolidated balance sheet preceding the date of a determination under the last
paragraph of Section 1005.
"Corporate Trust Office" means the principal office of the Trustee in
New York, New York, at which at any particular time its corporate trust
business shall be administered and which at the date of this Indenture is 450
West 33rd Street - 15th Floor, New York, New York 10001.
"Defaulted Interest" has the meaning specified in Section 307.
"Event of Default" has the meaning specified in Section 501.
"Extension Period" has the meaning specified in Section 301.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"Funded Debt" as applied to any corporation means all indebtedness
incurred, created, assumed or guaranteed by such corporation, or upon which it
customarily pays interest charges, which matures, or is renewable by such
corporation to a date, more than one year after the date as of which Funded
Debt is being determined; provided, however, that the term "Funded Debt" shall
not include (i) indebtedness incurred in the ordinary course of business
representing borrowings, regardless of when payable, of such corporation from
time to time against, but not in excess of the face amount of, its installment
accounts receivable for the sale of appliances and equipment sold in the
regular course of business or (ii) advances for construction and security
deposits received by such corporation in the ordinary course of business
"General Partner" means the Guarantor, in its capacity as general
partner of the Partnership.
"Guarantee" means the Affiliate Debenture Guarantee Agreement, dated
as of the date hereof, entered into by the Guarantor for the benefit of the
Holders of the Securities.
"Guarantor" means Enron Corp., and any successor thereto.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
3
<PAGE> 10
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date", when used with respect to any installment of
interest on a Security, means the date specified in such Security as the fixed
date on which an installment of interest with respect to the Securities is due
and payable.
"Limited Partnership Agreement" means the Amended and Restated
Agreement of Limited Partnership, dated as of November 21, 1996, of the
Partnership, as amended, modified or otherwise supplemented from time to time.
"Maturity", when used with respect to any Security, means the date on
which the original of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by (i) the
Chairman, a Vice Chairman, the President, a Managing Director, a Vice
President, or the Treasurer of the Company or the Guarantor and (ii) the
Secretary or an Assistant or Deputy Secretary of the Company or the Guarantor
and delivered to the Trustee; provided, however, that such certificate may be
signed by two of the officers or directors listed in clause (i) above in lieu
of being signed by one of such officers or directors listed in such clause (i)
and one of the officers listed in clause (ii) above. One of the officers
signing an Officer's Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with;
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with; and
(e) a statement that one of the officers signing such Officers'
Certificate is the principal executive, financial or accounting officer of the
Company.
4
<PAGE> 11
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or the Guarantor.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except: (i) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation; (ii) Securities for whose
payment or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the Company shall
act as its own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and (iii) Securities which have been paid pursuant to
Section 401, or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company.
"Partnership" means Enron Preferred Funding, L.P., a Delaware limited
partnership, and any successor thereto.
"Partnership Investment Company Event" means that the General Partner
shall have requested and received an opinion of nationally recognized
independent legal counsel experienced in such matters to the effect that as a
result of the occurrence on or after the date hereof of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority, the
Partnership is or will be considered an "investment company" which is required
to be registered under the Investment Company Act of 1940.
"Partnership Preferred Securities" means the limited partnership
interests issued pursuant to the Limited Partnership Agreement.
"Partnership Special Event" means either a Partnership Investment
Company Event or a Partnership Tax Event.
"Partnership Tax Event" means that the Guarantor, as the general
partner of the Partnership, shall have requested and received an opinion of
nationally recognized independent tax counsel experienced in such matters to
the effect that there has been a Tax Action which affects any of the events
described in (i) through (iii) below and that there is more than an
insubstantial risk that (i) the Partnership is, or will be subject to United
States federal income tax with respect to income accrued or received on the
Affiliate Investment Instruments or the Eligible Debt Securities (each as
defined in the Limited Partnership Agreement), (ii) the Partnership is, or will
be subject to more than a de minimis amount of other taxes, duties or other
governmental charges or (iii) interest payable by one or more of the obligors
with respect to the Affiliate Investment Instruments to the Partnership is not,
or will not be, deductible by the Company for United States federal income tax
purposes.
5
<PAGE> 12
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company which shall
initially be The Chase Manhattan Bank.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Securities" means the Partnership Preferred Securities and
the Trust Preferred Securities.
"Principal Property" means any oil or gas pipeline, gas processing
plant or chemical plant located in the United States, except any such property,
pipeline or plant that in the opinion of the Board of Directors is not of
material importance to the total business conducted by the Company and its
Subsidiaries. "Principal Property" shall not include any oil or gas property or
the production or any proceeds of production from an oil or gas producing
property or the production or any proceeds of production of gas processing
plants or oil or gas or petroleum products in any pipeline.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the Business Day next preceding such Interest Payment Date.
"Representative" means an indenture trustee or other trustee, agent or
representative for an issue of Senior Indebtedness.
"Responsible Officer", when used with respect to the Trustee, means
any officer within the Corporate Trust Office including any Vice President,
Assistant Vice President, Secretary, Assistant Secretary or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's knowledge and familiarity with the particular subject.
"Securities" has the meaning specified in the Recitals to this
instrument.
6
<PAGE> 13
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal, together with any accrued and unpaid
interest (including Additional Interest), of such Security or such installment
of interest is due and payable.
"Subsidiary" means any Person a majority of the equity ownership or
the Voting Stock of which is at the time owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"Tax Action" means that there has been (a) an 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, (b) a judicial decision interpreting, applying, or clarifying such
laws or regulations, (c) an administrative pronouncement or action that
represents an official position (including a clarification of an official
position) of the governmental authority or regulatory body making such
administrative pronouncement or taking such action, or (d) a threatened
challenge asserted in connection with an audit of the Guarantor or any of its
Subsidiaries, the Partnership, or the Trust, or a threatened challenge asserted
in writing in connection with any other taxpayer that has raised capital
through the issuance of securities that are substantially similar to the
Securities, the Partnership Preferred Securities, or the Trust Preferred
Securities, which amendment or change is adopted or which decision or
pronouncement is announced or which action, clarification or challenge occurs
on or after the date of this Indenture.
"Trust" means Enron Capital Trust I, a Delaware business trust, and
any successor thereto.
"Trust Agreement" has the meaning specified in the first paragraph of
this instrument.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
7
<PAGE> 14
"Trust Preferred Securities" means the 8.30% Trust Originated
Preferred Securities, liquidation amount $25 per Trust Preferred Security,
issued pursuant to the Trust Agreement.
"Vice President", when used with respect to the Company, the Guarantor
or the Trustee, means any vice president, whether or not designated by a number
or a word or words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or the Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company
or the Guarantor shall furnish the Trustee an Officers' Certificate stating
that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual
8
<PAGE> 15
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form any instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company
and/or the Guarantor. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee and the Company and the Guarantor, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining
the Holders entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders. If not set by the
Company prior to the first solicitation of a Holder made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date, only the Holders on such date (or
their duly designated proxies) shall be entitled to give or take, or vote on,
the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
9
<PAGE> 16
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 105. Notices, Etc., to Trustee, the Company and the Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or the Guarantor shall
be sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Global Trust
Services, or
(2) the Company or the Guarantor by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
or the Guarantor addressed to it at the address of its principal office
specified below or at any other address previously furnished in writing to the
Trustee by the Company or the Guarantor, as the case may be.
If to the Company or the Guarantor to:
Enron Corp.
1400 Smith Street
Houston, Texas 77002
Attention: Treasurer
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in a
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
10
<PAGE> 17
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
The Company will have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect wholly-owned
Subsidiary, provided that, in the event of any such assignment, the Company
will remain liable for all such obligations. Subject to the foregoing, this
Indenture is binding upon and inures to the benefit of the parties hereto and
their respective successors and assigns. This Indenture may not otherwise be
assigned by the parties hereto.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness, the holders of Preferred
Securities (to the extent provided herein) and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
11
<PAGE> 18
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal of the Securities shall 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 of interest or principal of the Securities, as the case may
be, shall be made on the immediately preceding Business Day, in each case, with
the same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity and with no reduction in interest or principal
in respect of such early payment.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these or other methods, all as determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 202. Form of Face of Security.
ENRON CAPITAL & TRADE RESOURCES CORP.
7.75% Debenture,
Due 2016
No. _____________ $________
Enron Capital & Trade Resources Corp, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ________________,
or registered assigns, the principal sum of ________ DOLLARS ($________) on
September 30, 2016 and to pay interest on said principal sum from November 21,
1996 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)
12
<PAGE> 19
in arrears on March 31, June 30, September 30 and December 31 of each year,
commencing December 31, 1996, at the rate of 7.75% per annum plus Additional
Interest, if any, until the principal hereof shall have become due and payable,
and on any overdue principal. The amount of interest payable for any period
will be computed on the basis of twelve 30-day months and a 360-day year. In
the event that any date on which interest is payable on this Security is not a
Business Day, then a payment of the 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 the date the payment was originally payable. A "Business Day"
shall mean any day other than a day on which banking institutions in the City
of New York are authorized or required by law to remain closed. 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 Security (or one or more Predecessor Securities, as defined
in the 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. Any such interest
installment not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
The Company shall have the right at any time during the term of this
Security, from time to time, to extend the interest payment period of such
Security for up to six consecutive quarters (an "Extension Period"), during
which periods interest will compound quarterly and the Company shall have the
right to make partial payments of interest on any Interest Payment Date, and at
the end of which Extension Period the Company shall pay all interest then
accrued and unpaid (together with Additional Interest thereon to the extent
that payment of such interest is permitted by applicable law). Prior to the
termination of any such Extension Period, the Company may further extend the
interest payment period, provided that such Extension Period together with all
such previous and further extensions thereof shall not exceed six consecutive
quarters or extend beyond the Maturity of this Security. Upon the termination
of any such Extension Period and upon the payment of all accrued and unpaid
interest and any Additional Interest then due, the Company may select a new
Extension Period, subject to the foregoing requirements. No interest shall be
due and payable during an Extension Period except at the end thereof. The
Company shall give the Holder of this Security and the Trustee written notice
of its selection of an Extension Period at least one Business Day prior to the
earlier of (i) the Interest Payment Date or (ii) the date Enron Capital Trust I
is required to give notice to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Trust Preferred Securities of
the record date or the date such distributions are payable, but in any event
not less than one Business Day prior to such record date.
13
<PAGE> 20
Payment of the principal of and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in New York,
New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made (i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or (ii) by wire transfer in
immediately available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Security
Register.
Reference is hereby made to the further provisions of the Indenture
summarized on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, Enron Capital & Trade Resources Corp. has caused
this instrument to be duly executed under its corporate seal.
Dated: ________, 1996
ENRON CAPITAL & TRADE RESOURCES CORP.
By:
-----------------------------------
Name:
Title:
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company, designated as its 7.75% Debentures Due 2016 (herein called the
"Securities"), limited in aggregate principal amount to $29,108,000 issued
under an Indenture, dated as of November 21, 1996 (herein called the
"Indenture"), among the Company, Enron Corp., as Guarantor (herein called the
"Guarantor, which term includes any successor corporation that shall become the
Guarantor under the Indenture) and The Chase Manhattan Bank, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Trustee, the Company, the
Guarantor and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
14
<PAGE> 21
At any time on or after December 31, 2001, the Company shall have the
right, subject to the terms and conditions of Article Twelve of the Indenture,
to redeem this Security at the option of the Company, without premium or
penalty, in whole or in part, at a Redemption Price equal to 100% of the
principal amount to be redeemed plus accrued but unpaid interest, including any
Additional Interest, if any, to the Redemption Date. If a Partnership Special
Event shall occur and be continuing, the Company shall have the right, subject
to the terms and conditions of Article Twelve of the Indenture, to redeem this
Security, without premium or penalty, in whole but not in part, at a Redemption
Price equal to 100% of the principal amount thereof plus accrued but unpaid
interest, including any Additional Interest, if any, to the Redemption Date.
Any redemption pursuant to this paragraph will be made upon not less than 30
nor more than 60 days' notice, at the Redemption Price. If the Securities are
only partially redeemed by the Company, the Securities will be redeemed pro
rata, by lot or in such other manner as the Trustee shall deem appropriate and
fair in its discretion and that may provide for the selection of a portion or
portions (equal to twenty-five U.S. dollars ($25) or any integral multiple
thereof) of the principal amount of any Security.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to the Securities shall occur and
be continuing, the principal of the Securities may be declared due and payable
in the manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions for satisfaction and discharge at
any time of the entire indebtedness of this Security upon compliance by the
Company with certain conditions set forth in the Indenture.
The Indenture contains provisions permitting the Company or the
Guarantor and the Trustee, with the consent of Holders of not less than a
majority in principal amount of the Outstanding Securities, to modify the
Indenture in a manner affecting the rights of the Holders of the Securities;
provided that no such modification may, without the consent of the Holder of
each Outstanding Security, (i) extend the fixed maturity of the Securities, or
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, or (ii) reduce the percentage of principal amount of the Securities,
the Holders of which are required to consent to any such modification of the
Indenture. The Indenture also contains provisions permitting Holders of
specified percentages in principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all Securities, to waive compliance by
the Company or the Guarantor with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the
15
<PAGE> 22
principal of and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in New York, New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees. No service charge shall
be made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment of this security for registration of
transfer, the Company, the Guarantor, the Trustee and any of their respective
agents may treat the Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security shall be overdue,
and neither the Company, the Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Securities 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 therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned
Indenture.
[NAME OF TRUSTEE], as Trustee
By:
-----------------------------------
Authorized Signatory
16
<PAGE> 23
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $29,108,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other securities pursuant to Section
303, 304, 305, 306, 906 or 1209.
The Securities shall be known and designated as the "7.75% Debentures
Due 2016" of the Company. Their Stated Maturity shall be September 30, 2016,
and they shall bear interest at the rate of 7.75% per annum, from November 21,
1996 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, as the case may be, payable 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, 1996 until the principal
thereof is paid or made available for payment. Interest will compound
quarterly and will accrue at the rate of 7.75% per annum on any interest
installment in arrears for more than one quarter or during an extension of an
interest payment period as set forth below in this Section 301. In the event
that any date on which interest is payable on the Securities is not a Business
Day, then a payment of the interest payable on such date will be made on the
next succeeding day which is a Business Day (except that, if such Business Day
is in the next succeeding calendar year, such Interest Payment Date shall be
the immediately preceding Business Day) (and without any interest or other
payment in respect of any such delay).
The Company shall have the right, at any time during the term of the
Securities, from time to time to extend the interest payment period for up to
six consecutive quarters (the "Extension Period") during which period interest
will compound quarterly and the Company shall have the right to make partial
payments of interest on any Interest Payment Date, and at the end of which
Extension Period the Company shall pay all interest then accrued and unpaid
thereon (together with Additional Interest at the rate specified for the
Securities to the extent permitted by applicable law). Prior to the
termination of any such Extension Period, the Company may further extend the
interest payment period, provided that such Extension Period together with all
such previous and further extensions thereof shall not exceed six consecutive
quarters or extend beyond the Maturity of the Securities. Upon the termination
of any Extension Period and upon the payment of all accrued and unpaid interest
and any Additional Interest then due, the Company may select a new Extension
Period, subject to the foregoing requirements. No interest shall be due and
payable during an Extension Period, except at the end thereof. The Company
shall give the Trust, the Partnership and the Trustee notice of its selection
of such Extension Period subject to the above requirements at least one
Business Day prior to the earlier of (i) the Interest Payment Date or (ii) the
date the Trust is required to give notice to the New York Stock Exchange or
other applicable self-regulatory organization or to holders of the Trust
Preferred Securities of the record date or the date such distributions are
payable, but in any event not less than one Business Day prior to such record
date.
17
<PAGE> 24
The principal of and interest on the Securities shall be payable at
the office or agency of the Company in the United States maintained for such
purpose and at any other office or agency maintained by the Company for such
purpose in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made (i)
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or (ii) by wire transfer in immediately
available funds at such place and to such account as may be designated by the
Person entitled thereto as specified in the Security Register.
The Securities shall be guaranteed by the Guarantor as provided in
Article Eleven.
The Securities shall be redeemable as provided in Article Twelve.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form, without
coupons, and only in denominations of $25 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman, one of its Vice Chairman, its President, one of its Managing
Directors or one of its Vice Presidents. The signature of any of these
officers on the securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.
18
<PAGE> 25
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
of authorized denominations. Until so exchanged the temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or excess of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written
19
<PAGE> 26
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1209 not involving any transfer.
If the Securities are to be redeemed in part, the Company will not be
required to issue, register the transfer of or exchange any Securities during a
period beginning at the opening of business 15 days before the day of mailing
of a notice of redemption of any such Securities that may be selected for
redemption and ending at the close of business on the day of such mailing,
except the unredeemed portion of any such Securities being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
security and (ii) such security or indemnity as may be required by them to save
each of them and any of their officers, directors, employees or agents of
either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
20
<PAGE> 27
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) the Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the date
of the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause
(2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and, if so listed, upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
21
<PAGE> 28
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue (including in each such case Additional Interest),
which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Guarantor, the Trustee and any agent of any of them shall
treat the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 307) interest (including Additional Interest) on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Guarantor, the Trustee nor any agent of them shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it.
The Company or the Guarantor may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company or the Guarantor may have acquired in any manner whatsoever,
and all Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of
as directed by a Company Order.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for and any amounts owed to the Trustee hereunder), and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
22
<PAGE> 29
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for
thegiving of notice of redemption by the Trustee in the
name, and at the expense, of the Company
and the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose and amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal and interest
(including Additional Interest) to the date of such deposit (in the
case of Securities which have become due and payable) or to the
StatedMaturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with. Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607 and,
if money shall have been deposited with the Trustee pursuant to subclause (B)
of Clause (1) of this Section, the obligations of the Trustee under Section 402
and the last paragraph of Section 1003 shall survive. SECTION 402.
Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with the Trustee. The Trustee
shall not invest money deposited with it pending distribution of such amounts.
23
<PAGE> 30
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events that has occurred and is continuing (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) failure for 90 days to pay any interest on the Securities,
including any Additional Interest in respect thereof, when due (subject to the
deferral of any due date in the case of an Extension Period); or
(2) failure to pay any principal on the Securities when due whether at
Stated Maturity, upon redemption by declaration or otherwise; or
(3) failure to observe or perform in any material respect any other
covenant herein for 90 days after written notice of such failure (specified as
a "Notice of Default"), requiring the Company to remedy the same shall have
been given to the Company and the Guarantor by the Trustee or the holders of at
least 25% in principal amount of the Outstanding Securities; or
(4) a court or governmental agency having jurisdiction in the premises
shall enter a decree or order for relief in respect of the Company or the
Guarantor in an involuntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Company or the Guarantor or for all or
substantially all of its property or ordering the winding up or liquidation of
its affairs, and such decree or order shall remain unstayed and in effect for a
period of 90 consecutive days; or
(5) the Company or the Guarantor shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or the Guarantor or for all or substantially all of
its property or make any general assignment for the benefit of creditors; or
the Company or the Guarantor shall admit in writing its inability to pay its
debts generally as they become due.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities shall have the right to declare
the principal of and the interest on all the Securities (including any
Additional Interest) and any other amounts payable hereunder to be due and
payable immediately,
24
<PAGE> 31
by a notice in writing to the Company and the Guarantor (and to the Trustee if
given by Holders) and to enforce any and all other rights of Holders of
Securities as creditors with respect to the Securities. Upon any such
declaration such principal and all accrued interest shall become immediately
due and payable.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Company and the Guarantor and the Trustee, may rescind and annul such
declaration and its consequences if:
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay,
(A) all overdue interest (including any Additional
Interest) on all Securities,
(B) the principal of any Securities which have became due
otherwise than by such declaration of acceleration and interest thereon at the
rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the principal
of Securities which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon. SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest (including any
Additional Interest) on any Security when such interest becomes due and payable
and such default continues for a period of 90 days (subject to the deferral of
any due and payable interest in the case of an Extension Period), or
(2) default is made in the payment of the principal of any Security at
the Maturity thereof, the Company will, upon demand of the Trustee, pay to it,
for the benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal and interest (including any
Additional Interest), at the rate borne by the Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the
25
<PAGE> 32
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company or the
Guarantor, its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Eleven, any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal or interest (including any Additional Interest), upon presentation
of the Securities and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
26
<PAGE> 33
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest (including any Additional Interest) on the Securities
in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal and interest (including any
Additional Interest), respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee such indemnity
as is satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities; it being understood and
intended that no one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holders, or to obtain or
to seek to obtain priority or preference over any other Holders or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and (subject to Section 307) interest
(including any Additional Interest) on such Security on the respective Stated
Maturities (subject to the deferral of any due date in the case of an Extension
Period) expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the
27
<PAGE> 34
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Guarantor, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy. SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities 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
(1) such direction shall not be in conflict with any rule of law or
with this Indenture; and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
28
<PAGE> 35
SECTION 513. Waiver of Past Defaults.
Subject to Section 902, the Holders of not less than a majority in
principal amount of the Outstanding Securities may on behalf of the Holders of
all the Securities waive any past default hereunder and its consequences,
except a default
(1) in the payment of the principal of or interest (including any
Additional Interest) on any Security (unless such default has been cured and a
sum sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration have been deposited with the Trustee); or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
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, suffered or
omitted by it as Trustee, a court may require any party litigant in such court
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or the Trustee or in any suit for the enforcement of the right to receive the
principal of and interest (including any Additional Interest) on any Security.
SECTION 515. Acknowledgement.
The Company and the Guarantor acknowledge that so long as the
Partnership is a Holder, a holder of record of Preferred Securities may to the
fullest extent permitted by law on behalf of the Partnership, when and as
provided in the Limited Partnership Agreement, directly institute a legal
proceeding against the Company under this Indenture or against the Guarantor
under the Guarantee, without first instituting any legal proceeding against the
Property Trustee (as such term is defined in the Limited Partnership Agreement)
or any other party.
29
<PAGE> 36
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default actually
known to a Responsible Officer of the Trustee hereunder as and to the extent
provided by the Trust Indenture Act; provided, however, that in the case of any
default of the character specified in Section 501(3), no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice at the
Company's and the Guarantor's expense and the advice of such counsel or any
Opinion of Counsel shall be full and complete
30
<PAGE> 37
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
(i) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur 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 to believe that repayments of such
funds or indemnity satisfactory to it against any loss, liability or expense is
not reasonably assured to it.
(j) The Trustee shall have no duty to monitor the performance of the
Company or the Guarantor or their compliance with the covenants contained
herein, nor shall it have any liability in connection with the malfeasance or
nonfeasance by such parties.
(k) Paying Agent, Authenticating Agent or Security Registrar appointed
hereunder, shall be entitled to all the rights, protections, immunities and
indemnities afforded to the Trustee hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or
31
<PAGE> 38
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar, or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar, or such other agent. Money held
by the Trustee in trust hereunder shall not be invested by the Trustee pending
distribution thereof to the holders of the Securities.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 607. Compensation and Reimbursement.
The Company and the Guarantor agree
(1) to pay to the Trustee from time to time such reasonable
compensation as the Company, the Guarantor and the Trustee shall from time to
time agree in writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable fees, charges, expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture or arising out of or in conection with the
acceptance or administrating of this Trust (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee and its officers, directors, employees
and agents for, and to hold them harmless against, any and all loss, damage,
claim, liability or expense, including taxes (other than taxes based on the
income of the Trustee) incurred without negligence or bad faith on their part,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The provisions of this Section shall survive the termination of this
Indenture or the resignation or removal of the Trustee.
32
<PAGE> 39
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and has its
Corporate Trust Office in New York, New York, if such Person publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company, by the Guarantor or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation
or liquidation,
33
<PAGE> 40
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders in
the manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
(g) No retiring Trustee hereunder shall be liable for the acts or
omissions of any successor Trustee.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company, to the Guarantor and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; provided that, on
request of the Company, the Guarantor or the successor Trustee, such retiring
Trustee shall, upon payment of its fees, charges and expenses, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company and
the Guarantor shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
34
<PAGE> 41
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company,
or the Guarantor, the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Company (or any
such other obligor).
SECTION 614. Expenses.
When the Trustee incurs expenses or renders services in connection
with an Event of Default, or any bankruptcy or insolvency in respect of the
Company or the Guarantor such expenses (including the fees and expenses of its
counsel) and the compensation for such services are intended to constitute
expenses of administration under any bankruptcy law or law relating to
creditors' rights generally.
ARTICLE SEVEN
Holders' Lists and Reports by Trustee
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not later than the last day of June and December in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of all Holders as of a date not more than 15 days prior to
the delivery thereof who were not Holders at the date of the Company had
previously provided such list (or, in the case of the initial provision of such
list, at the date of issuance of the Securities), and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished; excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
35
<PAGE> 42
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company, the Guarantor and the Trustee that neither the
Company, the Guarantor nor the Trustee nor any agent of any of them shall be
held accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, and with the Company and the Guarantor. The Company
will notify the Trustee when the Securities are listed on any stock exchange.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company or Guarantor May Consolidate, Etc., Only on Certain
Terms.
Each of the Company and the Guarantor covenants that it will not merge
or consolidate with any other corporation or other entity or sell or convey all
or substantially all of its assets to any person (other than such a sale or
conveyance to a Subsidiary or any successor thereto (such a sale or conveyance
being called an "Asset Drop-Down")), unless (i) either the Company or the
Guarantor shall be the continuing corporation or the successor corporation or
other entity or the person which acquires by sale or conveyance substantially
all the assets of the Company or the Guarantor shall expressly assume the due
and punctual payment of the principal of, premium, if any, and interest, if
any, on all the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Company or the Guarantor, by
supplemental indenture in form satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation or other entity, and (ii) the
Company, the
36
<PAGE> 43
Guarantor or such successor corporation or other entity, as the case may be,
shall not, immediately after such merger or consolidation, or such sale or
conveyance, be in default in the performance of any such covenant or condition.
In the event of any Asset Drop-Down after the date of this Indenture, any
subsequent sale or conveyance of assets by a Subsidiary to which assets were
transferred in such Asset Drop-Down (a "Drop-Down Subsidiary") will be deemed
to be a sale or conveyance of assets by the Company or the Guarantor for
purposes of this Section 801.
SECTION 802. Successor Substituted.
In case of any such consolidation, merger, sale or conveyance, and
following such an assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company or the
Guarantor, with the same effect as if it had been named herein. Such successor
corporation may cause to be signed, and may issue either in its own name or in
the name of the Company or the Guarantor prior to such succession any or all of
the Securities issuable hereunder which theretofore shall not have been signed
by the Company and guaranteed by the Guarantor and delivered to the Trustee;
and, upon the order of such successor corporation instead of the Company or the
Guarantor and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the
officers of the Company and the Guarantor to the Trustee for authentication,
and any Securities which such successor corporation thereafter shall cause to
be signed and delivered to the Trustee for that purpose. All of the Securities
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance
by way of lease) the Company, the Guarantor or any successor corporation which
shall theretofore have become such in the manner described in this Article
shall be released and discharged from all obligations and covenants under this
Indenture.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Guarantor,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
37
<PAGE> 44
(1) to evidence the succession of another Person to the Company or the
Guarantor and the assumption by any such successor of the covenants of the
Company or the Guarantor herein and in the Securities;
(2) to add to the covenants of the Company or the Guarantor for the
benefit of the Holders, or to surrender any right or power herein or in the
Securities conferred upon the Company or the Guarantor;
(3) to cure any ambiguity or to correct any provision herein which may
be defective or inconsistent with any other provision herein;
(4) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 905 or otherwise;
(5) to evidence and provide the acceptance of the appointment of a
successor Trustee hereunder; or
(6) to make any other change that does not adversely affect the rights
of any Holder.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company, the Guarantor and the Trustee, the Company, and the
Guarantor, when authorized by a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of interest (including any Additional Interest) on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, or change the place
of payment where, or the coin or currency in which, any Security or interest
thereon is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or modify the provisions of this
Indenture with respect to the subordination of the Securities in a manner
adverse to the Holders,
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders in required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
38
<PAGE> 45
(3) modify any of the provisions of this Section or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an officer's stating that Certificate precedent to the execution of such
supplemented indenture have been fulfilled and an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
ARTICLE TEN
Covenants; Representations and Warranties
SECTION 1001. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and interest
on the Securities in accordance with the terms of the Securities and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the United States an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange, where Securities
may be surrendered for conversion and where notices and
39
<PAGE> 46
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies (in the United States) where the Securities may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in the United States for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will,
on or at the option of the Company before each due date of the principal of or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on
or prior to each due date of the principal of or interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or interest on any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.
SECTION 1004. Reports by the Company.
The Guarantor shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within
40
<PAGE> 47
15 days after the same is so required to be filed with the Commission.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's or the
Guarantor's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 1005. Negative Pledge and Exceptions Thereto.
So long as any of the Securities are outstanding, the Company will not
pledge, mortgage or hypothecate, or permit to exist, and will not cause, suffer
or permit any Subsidiary to pledge, mortgage or hypothecate, or permit to
exist, except in favor of the Company or any Subsidiary, any mortgage, pledge
or other lien upon, any Principal Property at any time owned by it, to secure
any indebtedness, without making effective provisions whereby the Securities
shall be equally and ratably secured with any and all such indebtedness and
with any other indebtedness similarly entitled to be equally and ratably
secured; provided, however, that this restriction shall not apply to or prevent
the creation or existence of:
(a) undetermined or inchoate liens and charges incidental
to construction, maintenance, development or operation;
(b) the lien of taxes and assessments for the then
current year;
(c) the lien of taxes and assessments not at the time
delinquent;
(d) the lien of specified taxes and assessments which are
delinquent but the validity of which is being contested at the time by
the Company or such Subsidiary in good faith;
(e) the lien reserved in leases for rent and for
compliance with the terms of the lease in the case of leasehold
estates;
(f) any obligations or duties, affecting the property of
the Company or such Subsidiary, to any municipality or public
authority with respect to any franchise, grant, license, permit or
similar arrangement;
(g) the liens of any judgments or attachments in an
aggregate amount not in excess of $10,000,000, or the lien of any
judgment or attachment the execution or enforcement of which has been
stayed or which has been appealed and secured, if necessary, by the
filing of an appeal bond;
(h) any mortgage, pledge, lien or encumbrance on any
property held or used by the Company or a Subsidiary in connection
with the exploration for, development of or production of oil, gas,
natural gas (including liquified gas or storage gas), other
hydrocarbons, helium, coal, metals, minerals, steam, timber,
geothermal or other natural
41
<PAGE> 48
resources or synthetic fuels, such properties to include, but not be
limited to, the Company's or a Subsidiary's interest in any mineral
fee interests, oil, gas or other mineral leases, royalty, overriding
royalty or net profits interests, production payments and other
similar interests, wellhead production equipment, tanks, field
gathering lines, leasehold or field separation and processing
facilities, compression facilities and other similar personal property
and fixtures;
(i) any mortgage, pledge, lien or encumbrance on oil,
gas, natural gas (including liquified gas and storage gas), and other
hydrocarbons, helium, coal, metals, minerals, steam, timber,
geothermal or other natural resources or synthetic fuels produced or
recovered from any property, an interest in which is owned or leased
by the Company or a Subsidiary;
(j) mortgages, pledges, liens or encumbrances upon any
property heretofore or hereafter acquired, created at the time of
acquisition or within one year thereafter to secure all or a portion
of the purchase price thereof, or existing thereon at the date of
acquisition, whether or not assumed by the Company or a Subsidiary,
provided that every such mortgage, pledge, lien or encumbrance shall
apply only to the property so acquired and fixed improvements thereon;
(k) any extension, renewal or refunding, in whole or in
part, of any mortgage, pledge, lien or encumbrance permitted by
subparagraph (j) above, if limited to the same property or any portion
thereof subject to, and securing not more than the amount secured by,
the mortgage, pledge, lien or encumbrance extended, renewed or
refunded;
(l) mortgages, pledges, liens or encumbrances upon any
property heretofore or hereafter acquired by any corporation that is
or becomes a Subsidiary after the date hereof ("Acquired Entity"),
provided that every such mortgage, pledge, lien or encumbrance (1)
shall either (A) exist prior to the time the Acquired Entity becomes a
Subsidiary or (B) be created at the time the Acquired Entity becomes a
Subsidiary or within one year thereafter to secure all or a portion of
the acquisition price thereof and (2) shall only apply to those
properties owned by the Acquired Entity at the time it becomes a
Subsidiary or thereafter acquired by it from sources other than the
Company or any other Subsidiary;
(m) the pledge of current assets, in the ordinary course
of business, to secure current liabilities;
(n) mechanics' or materialmen's liens, any liens or
charges arising by reason of pledges or deposits to secure payment of
workmen's compensation or other insurance, good faith deposits in
connection with tenders, leases of real estate, bids or contracts
(other than contracts for the payment of money), deposits to secure
duties or public or statutory obligations, deposits to secure, or in
lieu of, surety, stay or appeal bonds, and deposits as security for
the payment of taxes or assessments or similar charges;
(o) any lien arising by reason of deposits with, or the
giving of any form of security to, any governmental agency or any body
created or approved by law or governmental regulation for any purpose
at any time in connection with the financing of the
42
<PAGE> 49
acquisition or construction of property to be used in the business of
the Company or a Subsidiary or as required by law or governmental
regulation as a condition to the transaction of any business or the
exercise of any privilege or license, or to enable the Company or a
Subsidiary to maintain self-insurance or to participate in any funds
established to cover any insurance risks or in connection with
workmen's compensation, unemployment insurance, old age pensions or
other social security, or to share in the privileges or benefits
required for companies participating in such arrangements;
(p) any lien to secure indebtedness other than Funded
Debt;
(q) any mortgage, pledge, lien or encumbrance of or upon
any office equipment, data processing equipment (including, without
limitation, computer and computer peripheral equipment), or
transportation equipment (including, without limitation, motor
vehicles, tractors, trailers, marine vessels, barges, towboats,
rolling stock and aircraft);
(r) any mortgage, pledge, lien or encumbrance created or
assumed by the Company or a Subsidiary in connection with the issuance
of debt securities the interest on which is excludable from gross
income of the holder of such security pursuant to the Internal Revenue
Code of 1954, as amended, for the purpose of financing, in whole or in
part, the acquisition or construction of property to be used by the
Company or a Subsidiary; or
(s) the pledge or assignment of accounts receivable, or
the pledge or assignment of conditional sales contracts or chattel
mortgages and evidences of indebtedness secured thereby, received in
connection with the sale by the Company or such Subsidiary or others
of goods or merchandise to customers of the Company or such
Subsidiary.
In case the Company or any Subsidiary shall propose to pledge,
mortgage or hypothecate any Principal Property at any time owned by it to
secure any indebtedness, other than as permitted by subdivisions (a) to (s),
inclusive, of this Section 1005, the Company (i) will prior thereto give
written notice thereof to the Trustee, and (ii) will, or will cause such
Subsidiary to, prior to or simultaneously with such pledge, mortgage or
hypothecation, enter into a supplemental indenture with the Trustee (or to the
extent legally necessary to another trustee or additional or separate trustee)
that secures all the Securities equally and ratably with such indebtedness.
Notwithstanding the foregoing provisions of this Section 1005, the
Company or a Subsidiary may issue, assume or guarantee indebtedness secured by
mortgage which would otherwise be subject to the foregoing restrictions in an
aggregate amount which, together with all other indebtedness of the Company or
a Subsidiary secured by a mortgage which (if originally issued, assumed or
guaranteed at such time) would otherwise be subject to the foregoing
restrictions (not including indebtedness permitted to be secured under clauses
(a) through (s) above), does not at the time exceed 10% of the Consolidated Net
Tangible Assets of the Company, as shown on the audited consolidated financial
statements of the Company as of the end of the fiscal year preceding the date
of determination.
43
<PAGE> 50
SECTION 1006. Statement as to Compliance; Notice of Certain Events of Default.
Each of the Company and the Guarantor will, within 120 days after the
close of each fiscal year, commencing with the first fiscal year following the
issuance of Securities under this Indenture, file with the Trustee a
certificate of the principal executive officer, the principal financial officer
or the principal accounting officer of the Company and the Guarantor covering
the period from the date of issuance of such Securities to the end of the
fiscal year in which such Securities were issued, in the case of the first such
certificate, and covering the preceding fiscal year in the case of each
subsequent certificate, and stating whether or not, to the knowledge of the
signer, each of the Company and the Guarantor has complied with all conditions
and covenants on its part contained in this Indenture, and, if the signer has
obtained knowledge of any default by the Guarantor in the performance,
observance or fulfillment of any such condition or covenant, specifying each
such default and the nature thereof. For the purpose of this Section 1007,
compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.
ARTICLE ELEVEN
Guarantee
SECTION 1101. Securities Entitled to Guarantee.
The Securities shall be entitled to all of the rights and benefits of
the Guarantee provided for by the Guarantor in accordance with the terms
thereof.
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. Optional Redemption.
(a) At any time on or after December 31, 2001, the Company shall have
the right to redeem the Securities, in whole or in part, from time to time, at
a Redemption Price equal to 100% of the principal amount of Securities to be
redeemed plus accrued but unpaid interest, including any Additional Interest,
if any, to the Redemption Date.
(b) If, at any time, a Partnership Tax Event or a Partnership
Investment Company Event (each a "Partnership Special Event") shall occur and
be continuing, the Company may, within 90 days following the occurrence of such
Partnership Special Event, elect to redeem the Securities in whole (but not in
part), upon not less than 30 or more than 60 days' notice at the Redemption
Price, provided that, if at the time there is available to the Company or the
Partnership the opportunity to eliminate, within such 90-day period, the
Partnership Special Event by taking some ministerial action, such as filing a
form or making an election, or pursuing some other similar reasonable such
measure that in the sole judgment of the Company has or will cause no adverse
effect on the
44
<PAGE> 51
Partnership, the Trust or the Company, the Company will pursue such measure in
lieu of redemption.
SECTION 1202. Mandatory Redemption.
If, at any time, a Change of Control shall occur and be continuing,
the Company shall, as promptly as practicable (and in any event within 90 days
following the occurrence of such Change of Control), redeem the Securities in
whole (but not in part), upon not less than 30 or more than 60 days' notice at
the Redemption Price. As promptly as practicable following a Change of
Control, the Company or the Guarantor shall provide written notice to the
Trustee of such Change of Control.
SECTION 1203. Applicability of Article.
Redemption of Securities, at the election of the Company as permitted
by Section 1201, shall be made in accordance with such provision and this
Article.
SECTION 1204. Authorization for Redemption; Notice to Trustee.
The election of the Company to redeem Securities pursuant to Section
1201 shall be evidenced by a Board Resolution. In case of any redemption, the
Company shall, at least 30 days and no more than 60 days prior to the
Redemption Date fixed by the Company, notify the Trustee of such Redemption
Date and of the principal amount of Securities to be redeemed and provide a
copy of the notice of redemption given to Holders of Securities to be redeemed
pursuant to Section 1204.
SECTION 1205. Selection by Trustee of Securities to Be Redeemed.
If less then all the Securities are to be redeemed (unless such
redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Securities not previously called for
redemption, by such method (including pro rata or by lot) as the Trustee shall
deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to $25 or any integral multiple thereof) of the
principal amount of the Securities.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to
be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be
45
<PAGE> 52
redeemed only in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
SECTION 1206. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to be redeemed
and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that on the Redemption Date the Redemption Price will become due
and payable upon each such security to be redeemed and that interest thereon
will cease to accrue on and after said date, and
(4) the place or places where such securities are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1207. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1208. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such
46
<PAGE> 53
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at the rate borne by the Security.
SECTION 1209. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a place of payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Guarantor and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. The Company may not redeem fewer than all the
Outstanding Securities unless all accrued and unpaid interest (including
Additional Interest) has been paid on such Securities.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
47
<PAGE> 54
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
ENRON CAPITAL & TRADE RESOURCES CORP.,
as Issuer
By: /s/ Andy Fastow
-----------------
Andy Fastow
Managing Director
ENRON CORP., as Guarantor
By: /s/ William D. Gathmann
-------------------------
William D. Gathmann
Vice President, Finance and
Treasurer
THE CHASE MANHATTAN BANK, as Trustee
By: /s/ Ronald Halleran
---------------------
Ronald Halleran
Second Vice President
48
<PAGE> 1
EXHIBIT 4.9
AFFILIATE DEBENTURE GUARANTEE AGREEMENT
(ENRON PIPELINE COMPANY)
ENRON CORP.
DATED AS OF NOVEMBER 21, 1996
<PAGE> 2
AFFILIATE DEBENTURE GUARANTEE AGREEMENT
AFFILIATE DEBENTURE GUARANTEE AGREEMENT (this "Investment Guarantee"),
dated as of November 21, 1996, is executed and delivered by Enron Corp., a
Delaware corporation (the "Guarantor"), and The Chase Manhattan Bank, a New
York banking corporation, as trustee (the "Investment Guarantee Trustee"), for
the benefit of the Holder (as defined herein) of the Affiliate Debenture (as
defined herein) of Enron Pipeline Company, a Delaware corporation (the
"Issuer").
WHEREAS, pursuant to an Indenture (the "Affiliate Indenture"), dated
as of November 21, 1996, between the Issuer and The Chase Manhattan Bank, as
indenture trustee (in such capacity, the "Indenture Trustee"), the Issuer is
issuing to the Holder on the date hereof its 7.75% Debenture Due 2016 (the
"Affiliate Debenture");
WHEREAS, as incentive for the Holder to purchase the Affiliate
Debenture, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Investment Guarantee, to make Guarantee Payments
(as defined herein) to the Holder of the Affiliate Debenture on the terms and
conditions set forth herein and;
NOW, THEREFORE, in consideration of the purchase by the Holder of the
Affiliate Debenture, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Investment Guarantee
for the benefit of the Holder.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Investment Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Investment Guarantee but not
defined in the Preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) capitalized terms used in this Investment Guarantee but not
otherwise defined herein shall have the meanings assigned to them in the
Affiliate Indenture;
(c) a term defined anywhere in this Investment Guarantee has the
same meaning throughout;
(d) all references to "the Investment Guarantee" or "this
Investment Guarantee" are to this Investment Guarantee as modified,
supplemented or amended from time to time;
(e) all references in this Investment Guarantee to Articles and
Sections are to Articles and Sections of this Investment Guarantee, unless
otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Investment Guarantee, unless otherwise defined in this
Investment Guarantee or unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice
versa.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
<PAGE> 3
"Business Day" means a day other than a day on which banking
institutions in the City of New York are authorized or required by law to
close.
"Corporate Trust Office" means the office of the Investment Guarantee
Trustee at which the corporate trust business of the Investment Guarantee
Trustee shall, at any particular time, be principally administered, which
office at the date of execution of this Agreement is located at 450 West 33rd
Street, 15th Floor, New York, New York 10001.
"Covered Person" means the Holder or any beneficial owner of the
Affiliate Debenture.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Investment Guarantee.
"Guarantee Payments" means, with respect to the Affiliate Debenture,
to the extent not paid or made by the Issuer, the due and punctual payment of
the principal of, premium, if any, and interest on the Affiliate Debenture,
when and as the same shall become due and payable, whether at maturity or upon
declaration of acceleration or otherwise, according to the terms of the
Affiliate Debenture and of the Affiliate Indenture.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer of the Affiliate Debenture. The initial Holder of the Affiliate
Debenture is the Partnership.
"Indemnified Person" means the Investment Guarantee Trustee, any
Affiliate of the Investment Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Investment Guarantee Trustee.
"Majority in liquidation amount of the Affiliate Debenture" means,
except as provided by the Trust Indenture Act, a vote by Holder(s) of the
Affiliate Debenture, voting separately as a class, of more than 50% of the
outstanding principal amount of the Affiliate Debenture plus accrued and unpaid
interest to the date upon which the voting percentages are determined.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two authorized officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Investment Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definition relating
thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition of covenant has been complied with.
"Partnership" means Enron Preferred Funding, L.P.
"Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of November 21, 1996, among
Enron Corp., a Delaware corporation, as general partner, Organizational
Partner, Inc., a Delaware corporation, as initial limited partner and such
other persons who become limited partners as provided therein.
2
<PAGE> 4
"Partnership Preferred Securities" means those securities representing
limited partnership interests in the Partnership.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever
nature.
"Responsible Officer" means, with respect to the Investment Guarantee
Trustee, any officer within the Corporate Trust Office of the Investment
Guarantee Trustee, including any vice president, any assistant vice president,
any secretary, any assistant secretary, the treasurer, any assistant treasurer
or other officer of the Corporate Trust Office of the Investment Guarantee
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Successor Investment Guarantee Trustee" means a successor Investment
Guarantee Trustee possessing the qualifications to act as Investment Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Investment Guarantee Trustee" means The Chase Manhattan Bank, a New
York banking corporation, until a Successor Investment Guarantee Trustee has
been appointed and has accepted such appointment pursuant to the terms of this
Investment Guarantee and thereafter means each such Successor Investment
Guarantee Trustee.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Investment Guarantee is subject to the provisions of the
Trust Indenture Act that are required to be part of this Investment Guarantee
and shall, to the extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this Investment
Guarantee limits, qualifies or conflicts with the duties imposed by Section 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Investment Guarantee Trustee
with a list, in such form as the Investment Guarantee Trustee may reasonably
require, of the names and addresses of the Holder(s) of the Affiliate Debenture
("List of Holders") as of such date, (i) within one (1) Business Day after
January 1 and June 30 of each year, and (ii) at any other time within 30 days
of receipt by the Guarantor of a written request for a List of Holders as of a
date no more than 14 days before such List of Holders is given to the
Investment Guarantee Trustee provided, that the Guarantor shall not be
obligated to provide such List of Holders at any time the List of Holders does
not differ from the most recent List of Holders given to the Investment
Guarantee Trustee by the Guarantor. The Investment Guarantee Trustee may
destroy any List of Holders previously given to it on receipt of a new List of
Holders.
(b) The Investment Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
3
<PAGE> 5
SECTION 2.3 Reports by the Trust Preferred Guarantee Trustee
Within 60 days after May 15 of each year, the Investment Guarantee
Trustee shall provide to the Holders of the Affiliate Debenture such reports as
are required by Section 313 of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The
Investment Guarantee Trustee shall also comply with the requirements of Section
313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Trust Preferred Guarantee Trustee
The Guarantor shall provide to the Investment Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Investment Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Investment Guarantee that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion required
to be given by an officer pursuant to Section 314(c)(1) may be given in the
form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of the Affiliate
Debenture may, by vote, on behalf of the Holders of the Affiliate Debenture,
waive any past Event of Default and its consequences. Upon such waiver, any
such Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Investment Guarantee, but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 2.7 Event of Default; Notice
(a) The Investment Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Affiliate Debenture, notices of all Events of
Default actually known to a Responsible Officer of the Investment Guarantee
Trustee, unless such defaults have been cured before the giving of such notice,
provided, that, the Investment Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the
Investment Guarantee Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders of the Affiliate Debenture.
(b) The Investment Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Investment Guarantee Trustee shall
have received written notice, or of which a Responsible Officer of the
Investment Guarantee Trustee charged with the administration of the Affiliate
Debenture shall have obtained actual knowledge.
SECTION 2.8 Conflicting Interests
The Affiliate Debenture shall be deemed to be specifically described
in this Investment Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
4
<PAGE> 6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF INVESTMENT
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Investment Guarantee Trustee
(a) This Investment Guarantee shall be held by the Investment
Guarantee Trustee for the benefit of the Holders of the Affiliate Debenture,
and the Investment Guarantee Trustee shall not transfer this Investment
Guarantee to any Person except a Holder of the Affiliate Debenture exercising
his or her rights pursuant to Section 5.4(b) or to a Successor Investment
Guarantee Trustee on acceptance by such Successor Investment Guarantee Trustee
of its appointment to act as Successor Investment Guarantee Trustee. The
right, title and interest of the Investment Guarantee Trustee shall
automatically vest in any Successor Investment Guarantee Trustee, and such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the appointment of such
Successor Investment Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible officer
of the Investment Guarantee Trustee has occurred and is continuing, the
Investment Guarantee Trustee shall enforce this Investment Guarantee for the
benefit of the Holders of the Affiliate Debenture.
(c) The Investment Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Investment Guarantee, and no implied covenants shall be read into
this Investment Guarantee against the Investment Guarantee Trustee. In case an
Event of Default has occurred (that has not been cured or waived pursuant to
Section 2.6) and is actually known to a Responsible Officer of the Investment
Guarantee Trustee, the Investment Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Investment Guarantee, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Investment Guarantee shall be construed
to relieve the Investment Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may
have occurred:
(A) the duties and obligations of the Investment
Guarantee Trustee shall be determined solely by the express
provisions of this Investment Guarantee, and the Investment
Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Investment Guarantee, and no implied
covenants or obligations shall be read into this Investment
Guarantee against the Investment Guarantee Trustee; and
(B) in the absence of bad faith on the part of
the Investment Guarantee Trustee, the Investment Guarantee
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Investment Guarantee Trustee and conforming to the
requirements of this Investment Guarantee; but in the case of
any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Investment
Guarantee Trustee, the Investment Guarantee Trustee shall be
under a duty to examine the same to determine whether or not
they conform to the requirements of this Investment Guarantee;
(ii) the Investment Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a Responsible officer
of the Investment Guarantee Trustee, unless it shall be proved that
the
5
<PAGE> 7
Investment Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Investment Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of the Affiliate
Debenture relating to the time, method and place of conducting any
proceeding for any remedy available to the Investment Guarantee
Trustee, or exercising any trust or power conferred upon the
Investment Guarantee Trustee under this Investment Guarantee; and
(iv) no provision of this Investment Guarantee shall
require the Investment Guarantee Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Investment Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Investment Guarantee or indemnity, reasonably satisfactory to the
Investment Guarantee Trustee, against such risk or liability is not
reasonably assured to it.
SECTION 3.2 Certain Rights of Investment Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Investment Guarantee Trustee may conclusively
rely, and shall be fully protected in acting or refraining from acting
upon, any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Investment Guarantee shall be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Investment
Guarantee, the Investment Guarantee Trustee shall deem it desirable
that a matter be proved or established before taking, suffering or
omitting any action hereunder, the Investment Guarantee Trustee
(unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and conclusively rely upon
an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor.
(iv) The Investment Guarantee Trustee shall have no duty
to see to any recording, filing or registration of any instrument (or
any rerecording, refiling or reregistration thereof).
(v) The Investment Guarantee Trustee may, at the expense
of the Guarantor, consult with counsel of its selection, and the
advice or opinion of such counsel with respect to legal matters 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. Such counsel may be counsel
to the Guarantor or any of its Affiliates and may include any of its
employees. The Investment Guarantee Trustee shall have the right at
any time to seek instructions concerning the administration of this
Investment Guarantee from any court of competent jurisdiction.
(vi) The Investment Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by
this Investment Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Investment Guarantee
Trustee such security and indemnity, reasonably satisfactory to the
Investment Guarantee Trustee, against the costs, expenses (including
attorneys' fees and expenses and the expenses of the Investment
Guarantee Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by
the Investment Guarantee Trustee; provided
6
<PAGE> 8
that, nothing contained in this Section 3.2(a)(vi) shall be taken to
relieve the Investment Guarantee Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights and powers
vested in it by this Investment Guarantee.
(vii) The Investment Guarantee Trustee shall not be bound
to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Investment Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(viii) The Investment Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys,
and the Investment Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
(ix) Any action taken by the Investment Guarantee Trustee
or its agents hereunder shall bind the Holders of the Affiliate
Debenture, and the signature of the Investment Guarantee Trustee or
its agents alone shall be sufficient and effective to perform any such
action. No third party shall be required to inquire as to the
authority of the Investment Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Investment
Guarantee, both of which shall be conclusively evidenced by the
Investment Guarantee Trustee or its agent taking such action.
(x) Whenever in the administration of this Investment
Guarantee the Investment Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Investment Guarantee Trustee
(i) may request instructions from the Holders of a Majority in
liquidation amount of the Affiliate Debenture, (ii) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in
conclusively relying on or acting in accordance with such
instructions.
(xi) The Investment Guarantee Trustee shall not be liable
for any action taken, suffered, or omitted to be taken by it in good
faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Investment
Guarantee.
(b) No provision of this Investment Guarantee shall be deemed to
impose any duty or obligation on the Investment Guarantee Trustee to perform
any act or acts or exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal, or in which the
Investment Guarantee Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or authority available
to the Investment Guarantee Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of
Investment Guarantee
The recitals contained in this Investment Guarantee shall be taken as
the statements of the Guarantor, and the Investment Guarantee Trustee does not
assume any responsibility for their correctness. The Investment Guarantee
Trustee makes no representation as to the validity or sufficiency of this
Investment Guarantee.
ARTICLE IV
INVESTMENT GUARANTEE TRUSTEE
SECTION 4.1 Investment Guarantee Trustee; Eligibility
(a) There shall at all times be a Investment Guarantee Trustee
which shall:
7
<PAGE> 9
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars ($50,000,000),
and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority referred
to above, then, for the purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Investment Guarantee Trustee shall cease to
be eligible to so act under Section 4.1(a), the Investment Guarantee Trustee
shall immediately resign in the manner and with the effect set out in Section
4.2(c).
(c) If the Investment Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Investment Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2 Appointment, Removal and Resignation of Investment
Guarantee Trustee
(a) Subject to Section 4.2(b), the Investment Guarantee Trustee
may be appointed or removed without cause at any time by the Guarantor except
during an Event of Default.
(b) The Investment Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Investment Guarantee Trustee
has been appointed and has accepted such appointment by written instrument
executed by such Successor Investment Guarantee Trustee and delivered to the
Guarantor.
(c) The Investment Guarantee Trustee appointed to office shall
hold office until a Successor Investment Guarantee Trustee shall have been
appointed or until its removal or resignation. The Investment Guarantee
Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Investment Guarantee
Trustee and delivered to the Guarantor, which resignation shall not take effect
until a Successor Investment Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Investment Guarantee Trustee and delivered to the Guarantor and the resigning
Investment Guarantee Trustee.
(d) If no Successor Investment Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery of an instrument of removal or resignation, the Investment
Guarantee Trustee resigning or being removed may petition any court of
competent jurisdiction for appointment of a Successor Investment Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as
it may deem proper, appoint a Successor Investment Guarantee Trustee.
(e) No Investment Guarantee Trustee shall be liable for the acts
or omissions to act of any Successor Investment Guarantee Trustee.
(f) Upon termination of this Investment Guarantee or removal or
resignation of the Investment Guarantee Trustee pursuant to this Section 4.2
and before the appointment of any Successor Investment Guarantee Trustee, the
Guarantor shall pay to the Investment Guarantee Trustee all amounts to which it
is entitled to the date of such termination, removal or resignation.
8
<PAGE> 10
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), if, as and when due, regardless of any defense, right of
setoff or counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Guarantor to the Holders or by causing the Issuer
to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Investment
Guarantee and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor
under this Investment Guarantee shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Affiliate Debenture to
be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the interest, principal or premiums, if any, or any other sums
payable under the terms of the Affiliate Debenture or the extension of time for
the performance of any other obligation under, arising out of, or in connection
with, the Affiliate Debenture (other than an extension of time for payment of
interest during an Extension Period (as defined in the Affiliate Indenture));
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Affiliate
Debenture, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Issuer or any of the
assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Affiliate
Debenture;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
9
<PAGE> 11
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of the
Affiliate Debenture have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Investment
Guarantee Trustee in respect of this Investment Guarantee or exercising any
trust or power conferred upon the Investment Guarantee Trustee under this
Investment Guarantee.
(b) If the Investment Guarantee Trustee fails to enforce its
rights under the Investment Guarantee after a Holder of the Affiliate Debenture
has made a written request, such Holder of the Affiliate Debenture may
institute a legal proceeding directly against the Guarantor to enforce the
Investment Guarantee Trustee's rights under this Investment Guarantee, without
first instituting a legal proceeding against the Issuer, the Investment
Guarantee Trustee or any other Person. Notwithstanding the foregoing, if the
Guarantor has failed to make a Guarantee Payment, a Holder of the Affiliate
Debenture may directly institute a proceeding in such Holder's own name against
the Guarantor for enforcement of the Investment Guarantee for such payment.
The Guarantor waives any right or remedy to require that any action be brought
first against the Issuer or any other person or entity before proceeding
directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
This Investment Guarantee creates a guarantee of payment and not of
collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Affiliate Debenture against the Issuer in respect of any amounts
paid to such Holders by the Guarantor under this Investment Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Investment
Guarantee, if, at the time of any such payment, any amounts are due and unpaid
under this Investment Guarantee. If any amount shall be paid to the Guarantor
in violation of the preceding sentence, the Guarantor agrees to hold such
amount in trust for the Holders and to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Affiliate
Debenture, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Investment
Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
SUBORDINATION
SECTION 6.1 Ranking
This Investment Guarantee will constitute an unsecured obligation of
the Guarantor and will rank (i) subordinate and junior in right of payment to
all other liabilities of the Guarantor, including, without limitation, the
fees, charges, expenses and indemnities due to the Property Trustee or the
Delaware Trustee in respect of the Declaration of Trust, the Trust Preferred
Securities Guarantee and the Affiliate Debenture Guarantee Agreement, (ii) pari
passu with the most senior preferred or preference stock now or hereafter
issued by the Guarantor and with any guarantee now or hereafter entered into by
the Guarantor in respect of any preferred security of any Affiliate of the
Guarantor, and (iii) senior to the Guarantor's common stock.
10
<PAGE> 12
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Investment Guarantee shall terminate upon the repayment in full
(whether at maturity, upon redemption or otherwise) of all of the principal of,
interest on (including all accrued and unpaid interest thereon) and any other
amounts payable in respect of the Affiliate Debenture. Notwithstanding the
foregoing, this Investment Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of the Affiliate
Debenture must restore payment of any sums paid under the Affiliate Debenture
or under this Investment Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith in accordance with this
Investment Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Investment Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason of
such Indemnified Person's gross negligence or willful misconduct with respect
to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which principal, interest or other payments to Holders of
the Affiliate Debenture might properly be paid.
SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 8.2 shall survive the termination of
this Investment Guarantee or the resignation or removal of the Investment
Guarantee Trustee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Investment Guarantee
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Affiliate
Debenture then outstanding.
11
<PAGE> 13
SECTION 9.2 Amendments
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Investment Guarantee may only be amended with the prior approval of the Holders
of at least a Majority in liquidation amount of the Affiliate Debenture.
SECTION 9.3 Merger of the Guarantor
The Guarantor covenants that it will not merge or consolidate with any
other corporation or other entity or sell or convey all or substantially all of
its assets to any person (other than such a sale or conveyance to a Subsidiary
or any successor thereto (such a sale or conveyance being called an "Asset
Drop-Down")), unless (i) either the Guarantor shall be the continuing
corporation or the successor corporation or other entity or the person which
acquires by sale or conveyance substantially all the assets of the Guarantor
shall expressly assume the obligations of the Guarantor hereunder, according to
their tenor, and the due and punctual performance and observance of all of the
covenants hereof to be performed or observed by the Guarantor, by instrument in
form satisfactory to the Investment Guarantee Trustee, executed and delivered
to the Investment Guarantee Trustee by such corporation or other entity, and
(ii) the Guarantor or such successor corporation or other entity, as the case
may be, shall not, immediately after such merger or consolidation, or such sale
or conveyance, be in default in the performance of any such covenant or
condition. In the event of any Asset Drop-Down after the date hereof, any
subsequent sale or conveyance of assets by a Subsidiary to which assets were
transferred in such Asset Drop-Down will be deemed to be a sale or conveyance
of assets by the Company for purposes of this provision.
SECTION 9.4 Notices
All notices provided for in this Investment Guarantee shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
(a) If given to the Investment Guarantee Trustee, at the
Investment Guarantee Trustee's mailing address set forth below (or such other
address as the Investment Guarantee Trustee may give notice of to the Holders
of the Affiliate Debenture):
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Global Trust Services
Telecopy: (212) 946-8158, 8159 or 8160
(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Affiliate Debenture):
Enron Corp.
1400 Smith Street
Houston, Texas 77002
Attention: Treasury Department
Telecopy: (713) 646-3422
(c) If given to any Holder of Affiliate Debenture, at the address
set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
12
<PAGE> 14
SECTION 9.5 Benefit
This Investment Guarantee is solely for the benefit of the Holders of
the Affiliate Debenture and, subject to Section 3.1(a), is not separately
transferable from the Affiliate Debenture.
SECTION 9.6 Governing Law
THIS INVESTMENT GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
13
<PAGE> 15
This Investment Guarantee is executed as of the day and year first
above written.
ENRON CORP., as Guarantor
By: /s/ William D. Gathmann
-------------------------
William D. Gathmann
Vice President and Treasurer
THE CHASE MANHATTAN BANK,
as Investment Guarantee Trustee
By: /s/ Ronald Halleran
---------------------
Ronald Halleran
Second Vice President
14
<PAGE> 1
EXHIBIT 4.10
================================================================================
AFFILIATE DEBENTURE GUARANTEE AGREEMENT
(ENRON CAPITAL & TRADE RESOURCES CORP.)
ENRON CORP.
DATED AS OF NOVEMBER 21, 1996
================================================================================
<PAGE> 2
AFFILIATE DEBENTURE GUARANTEE AGREEMENT
AFFILIATE DEBENTURE GUARANTEE AGREEMENT (this "Investment Guarantee"),
dated as of November 21, 1996, is executed and delivered by Enron Corp., a
Delaware corporation (the "Guarantor"), and The Chase Manhattan Bank, a New
York banking corporation, as trustee (the "Investment Guarantee Trustee"), for
the benefit of the Holder (as defined herein) of the Affiliate Debenture (as
defined herein) of Enron Capital & Trade Resources Corp., a Delaware
corporation (the "Issuer").
WHEREAS, pursuant to an Indenture (the "Affiliate Indenture"), dated
as of November 21, 1996, between the Issuer and The Chase Manhattan Bank, as
indenture trustee (in such capacity, the "Indenture Trustee"), the Issuer is
issuing to the Holder on the date hereof its 7.75% Debenture Due 2016 (the
"Affiliate Debenture");
WHEREAS, as incentive for the Holder to purchase the Affiliate
Debenture, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Investment Guarantee, to make Guarantee Payments
(as defined herein) to the Holder of the Affiliate Debenture on the terms and
conditions set forth herein and;
NOW, THEREFORE, in consideration of the purchase by the Holder of the
Affiliate Debenture, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Investment Guarantee
for the benefit of the Holder.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Investment Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Investment Guarantee but not
defined in the Preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) capitalized terms used in this Investment Guarantee but not
otherwise defined herein shall have the meanings assigned to them in the
Affiliate Indenture;
(c) a term defined anywhere in this Investment Guarantee has the
same meaning throughout;
(d) all references to "the Investment Guarantee" or "this
Investment Guarantee" are to this Investment Guarantee as modified,
supplemented or amended from time to time;
(e) all references in this Investment Guarantee to Articles and
Sections are to Articles and Sections of this Investment Guarantee, unless
otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Investment Guarantee, unless otherwise defined in this
Investment Guarantee or unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice
versa.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
<PAGE> 3
"Business Day" means a day other than a day on which banking
institutions in the City of New York are authorized or required by law to
close.
"Corporate Trust Office" means the office of the Investment Guarantee
Trustee at which the corporate trust business of the Investment Guarantee
Trustee shall, at any particular time, be principally administered, which
office at the date of execution of this Agreement is located at 450 West 33rd
Street, 15th Floor, New York, New York 10001.
"Covered Person" means the Holder or any beneficial owner of the
Affiliate Debenture.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Investment Guarantee.
"Guarantee Payments" means, with respect to the Affiliate Debenture,
to the extent not paid or made by the Issuer, the due and punctual payment of
the principal of, premium, if any, and interest on the Affiliate Debenture,
when and as the same shall become due and payable, whether at maturity or upon
declaration of acceleration or otherwise, according to the terms of the
Affiliate Debenture and of the Affiliate Indenture.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer of the Affiliate Debenture. The initial Holder of the Affiliate
Debenture is the Partnership.
"Indemnified Person" means the Investment Guarantee Trustee, any
Affiliate of the Investment Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Investment Guarantee Trustee.
"Majority in liquidation amount of the Affiliate Debenture" means,
except as provided by the Trust Indenture Act, a vote by Holder(s) of the
Affiliate Debenture, voting separately as a class, of more than 50% of the
outstanding principal amount of the Affiliate Debenture plus accrued and unpaid
interest to the date upon which the voting percentages are determined.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two authorized officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Investment Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definition relating
thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition of covenant has been complied with.
"Partnership" means Enron Preferred Funding, L.P.
"Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of November 21, 1996, among
Enron Corp., a Delaware corporation, as general partner, Organizational
Partner, Inc., a Delaware corporation, as initial limited partner and such
other persons who become limited partners as provided therein.
2
<PAGE> 4
"Partnership Preferred Securities" means those securities representing
limited partnership interests in the Partnership.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever
nature.
"Responsible Officer" means, with respect to the Investment Guarantee
Trustee, any officer within the Corporate Trust Office of the Investment
Guarantee Trustee, including any vice president, any assistant vice president,
any secretary, any assistant secretary, the treasurer, any assistant treasurer
or other officer of the Corporate Trust Office of the Investment Guarantee
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Successor Investment Guarantee Trustee" means a successor Investment
Guarantee Trustee possessing the qualifications to act as Investment Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Investment Guarantee Trustee" means The Chase Manhattan Bank, a New
York banking corporation, until a Successor Investment Guarantee Trustee has
been appointed and has accepted such appointment pursuant to the terms of this
Investment Guarantee and thereafter means each such Successor Investment
Guarantee Trustee.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Investment Guarantee is subject to the provisions of the
Trust Indenture Act that are required to be part of this Investment Guarantee
and shall, to the extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this Investment
Guarantee limits, qualifies or conflicts with the duties imposed by Section 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Investment Guarantee Trustee
with a list, in such form as the Investment Guarantee Trustee may reasonably
require, of the names and addresses of the Holder(s) of the Affiliate Debenture
("List of Holders") as of such date, (i) within one (1) Business Day after
January 1 and June 30 of each year, and (ii) at any other time within 30 days
of receipt by the Guarantor of a written request for a List of Holders as of a
date no more than 14 days before such List of Holders is given to the
Investment Guarantee Trustee provided, that the Guarantor shall not be
obligated to provide such List of Holders at any time the List of Holders does
not differ from the most recent List of Holders given to the Investment
Guarantee Trustee by the Guarantor. The Investment Guarantee Trustee may
destroy any List of Holders previously given to it on receipt of a new List of
Holders.
(b) The Investment Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
3
<PAGE> 5
SECTION 2.3 Reports by the Trust Preferred Guarantee Trustee
Within 60 days after May 15 of each year, the Investment Guarantee
Trustee shall provide to the Holders of the Affiliate Debenture such reports as
are required by Section 313 of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The
Investment Guarantee Trustee shall also comply with the requirements of Section
313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Trust Preferred Guarantee Trustee
The Guarantor shall provide to the Investment Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Investment Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Investment Guarantee that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion required
to be given by an officer pursuant to Section 314(c)(1) may be given in the
form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of the Affiliate
Debenture may, by vote, on behalf of the Holders of the Affiliate Debenture,
waive any past Event of Default and its consequences. Upon such waiver, any
such Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Investment Guarantee, but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 2.7 Event of Default; Notice
(a) The Investment Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Affiliate Debenture, notices of all Events of
Default actually known to a Responsible Officer of the Investment Guarantee
Trustee, unless such defaults have been cured before the giving of such notice,
provided, that, the Investment Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the
Investment Guarantee Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders of the Affiliate Debenture.
(b) The Investment Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Investment Guarantee Trustee shall
have received written notice, or of which a Responsible Officer of the
Investment Guarantee Trustee charged with the administration of the Affiliate
Debenture shall have obtained actual knowledge.
SECTION 2.8 Conflicting Interests
The Affiliate Debenture shall be deemed to be specifically described
in this Investment Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
4
<PAGE> 6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF INVESTMENT
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Investment Guarantee Trustee
(a) This Investment Guarantee shall be held by the Investment
Guarantee Trustee for the benefit of the Holders of the Affiliate Debenture,
and the Investment Guarantee Trustee shall not transfer this Investment
Guarantee to any Person except a Holder of the Affiliate Debenture exercising
his or her rights pursuant to Section 5.4(b) or to a Successor Investment
Guarantee Trustee on acceptance by such Successor Investment Guarantee Trustee
of its appointment to act as Successor Investment Guarantee Trustee. The
right, title and interest of the Investment Guarantee Trustee shall
automatically vest in any Successor Investment Guarantee Trustee, and such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the appointment of such
Successor Investment Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible officer
of the Investment Guarantee Trustee has occurred and is continuing, the
Investment Guarantee Trustee shall enforce this Investment Guarantee for the
benefit of the Holders of the Affiliate Debenture.
(c) The Investment Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Investment Guarantee, and no implied covenants shall be read into
this Investment Guarantee against the Investment Guarantee Trustee. In case an
Event of Default has occurred (that has not been cured or waived pursuant to
Section 2.6) and is actually known to a Responsible Officer of the Investment
Guarantee Trustee, the Investment Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Investment Guarantee, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Investment Guarantee shall be construed
to relieve the Investment Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may
have occurred:
(A) the duties and obligations of the Investment
Guarantee Trustee shall be determined solely by the express
provisions of this Investment Guarantee, and the Investment
Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Investment Guarantee, and no implied
covenants or obligations shall be read into this Investment
Guarantee against the Investment Guarantee Trustee; and
(B) in the absence of bad faith on the part of
the Investment Guarantee Trustee, the Investment Guarantee
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Investment Guarantee Trustee and conforming to the
requirements of this Investment Guarantee; but in the case of
any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Investment
Guarantee Trustee, the Investment Guarantee Trustee shall be
under a duty to examine the same to determine whether or not
they conform to the requirements of this Investment Guarantee;
(ii) the Investment Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a Responsible officer
of the Investment Guarantee Trustee, unless it shall be proved that
the
5
<PAGE> 7
Investment Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Investment Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of the Affiliate
Debenture relating to the time, method and place of conducting any
proceeding for any remedy available to the Investment Guarantee
Trustee, or exercising any trust or power conferred upon the
Investment Guarantee Trustee under this Investment Guarantee; and
(iv) no provision of this Investment Guarantee shall
require the Investment Guarantee Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Investment Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Investment Guarantee or indemnity, reasonably satisfactory to the
Investment Guarantee Trustee, against such risk or liability is not
reasonably assured to it.
SECTION 3.2 Certain Rights of Investment Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Investment Guarantee Trustee may conclusively
rely, and shall be fully protected in acting or refraining from acting
upon, any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Investment Guarantee shall be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Investment
Guarantee, the Investment Guarantee Trustee shall deem it desirable
that a matter be proved or established before taking, suffering or
omitting any action hereunder, the Investment Guarantee Trustee
(unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and conclusively rely upon
an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor.
(iv) The Investment Guarantee Trustee shall have no duty
to see to any recording, filing or registration of any instrument (or
any rerecording, refiling or reregistration thereof).
(v) The Investment Guarantee Trustee may, at the expense
of the Guarantor, consult with counsel of its selection, and the
advice or opinion of such counsel with respect to legal matters 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. Such counsel may be counsel
to the Guarantor or any of its Affiliates and may include any of its
employees. The Investment Guarantee Trustee shall have the right at
any time to seek instructions concerning the administration of this
Investment Guarantee from any court of competent jurisdiction.
(vi) The Investment Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by
this Investment Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Investment Guarantee
Trustee such security and indemnity, reasonably satisfactory to the
Investment Guarantee Trustee, against the costs, expenses (including
attorneys' fees and expenses and the expenses of the Investment
Guarantee Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by
the Investment Guarantee Trustee; provided
6
<PAGE> 8
that, nothing contained in this Section 3.2(a)(vi) shall be taken to
relieve the Investment Guarantee Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights and powers
vested in it by this Investment Guarantee.
(vii) The Investment Guarantee Trustee shall not be bound
to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Investment Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(viii) The Investment Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys,
and the Investment Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
(ix) Any action taken by the Investment Guarantee Trustee
or its agents hereunder shall bind the Holders of the Affiliate
Debenture, and the signature of the Investment Guarantee Trustee or
its agents alone shall be sufficient and effective to perform any such
action. No third party shall be required to inquire as to the
authority of the Investment Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Investment
Guarantee, both of which shall be conclusively evidenced by the
Investment Guarantee Trustee or its agent taking such action.
(x) Whenever in the administration of this Investment
Guarantee the Investment Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Investment Guarantee Trustee
(i) may request instructions from the Holders of a Majority in
liquidation amount of the Affiliate Debenture, (ii) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in
conclusively relying on or acting in accordance with such
instructions.
(xi) The Investment Guarantee Trustee shall not be liable
for any action taken, suffered, or omitted to be taken by it in good
faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Investment
Guarantee.
(b) No provision of this Investment Guarantee shall be deemed to
impose any duty or obligation on the Investment Guarantee Trustee to perform
any act or acts or exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal, or in which the
Investment Guarantee Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or authority available
to the Investment Guarantee Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of
Investment Guarantee
The recitals contained in this Investment Guarantee shall be taken as
the statements of the Guarantor, and the Investment Guarantee Trustee does not
assume any responsibility for their correctness. The Investment Guarantee
Trustee makes no representation as to the validity or sufficiency of this
Investment Guarantee.
ARTICLE IV
INVESTMENT GUARANTEE TRUSTEE
SECTION 4.1 Investment Guarantee Trustee; Eligibility
(a) There shall at all times be a Investment Guarantee Trustee
which shall:
7
<PAGE> 9
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars ($50,000,000),
and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority referred
to above, then, for the purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Investment Guarantee Trustee shall cease to
be eligible to so act under Section 4.1(a), the Investment Guarantee Trustee
shall immediately resign in the manner and with the effect set out in Section
4.2(c).
(c) If the Investment Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Investment Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2 Appointment, Removal and Resignation of Investment
Guarantee Trustee
(a) Subject to Section 4.2(b), the Investment Guarantee Trustee
may be appointed or removed without cause at any time by the Guarantor except
during an Event of Default.
(b) The Investment Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Investment Guarantee Trustee
has been appointed and has accepted such appointment by written instrument
executed by such Successor Investment Guarantee Trustee and delivered to the
Guarantor.
(c) The Investment Guarantee Trustee appointed to office shall
hold office until a Successor Investment Guarantee Trustee shall have been
appointed or until its removal or resignation. The Investment Guarantee
Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Investment Guarantee
Trustee and delivered to the Guarantor, which resignation shall not take effect
until a Successor Investment Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Investment Guarantee Trustee and delivered to the Guarantor and the resigning
Investment Guarantee Trustee.
(d) If no Successor Investment Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery of an instrument of removal or resignation, the Investment
Guarantee Trustee resigning or being removed may petition any court of
competent jurisdiction for appointment of a Successor Investment Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as
it may deem proper, appoint a Successor Investment Guarantee Trustee.
(e) No Investment Guarantee Trustee shall be liable for the acts
or omissions to act of any Successor Investment Guarantee Trustee.
(f) Upon termination of this Investment Guarantee or removal or
resignation of the Investment Guarantee Trustee pursuant to this Section 4.2
and before the appointment of any Successor Investment Guarantee Trustee, the
Guarantor shall pay to the Investment Guarantee Trustee all amounts to which it
is entitled to the date of such termination, removal or resignation.
8
<PAGE> 10
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), if, as and when due, regardless of any defense, right of
setoff or counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Guarantor to the Holders or by causing the Issuer
to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Investment
Guarantee and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor
under this Investment Guarantee shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Affiliate Debenture to
be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the interest, principal or premiums, if any, or any other sums
payable under the terms of the Affiliate Debenture or the extension of time for
the performance of any other obligation under, arising out of, or in connection
with, the Affiliate Debenture (other than an extension of time for payment of
interest during an Extension Period (as defined in the Affiliate Indenture));
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Affiliate
Debenture, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Issuer or any of the
assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Affiliate
Debenture;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
9
<PAGE> 11
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of the
Affiliate Debenture have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Investment
Guarantee Trustee in respect of this Investment Guarantee or exercising any
trust or power conferred upon the Investment Guarantee Trustee under this
Investment Guarantee.
(b) If the Investment Guarantee Trustee fails to enforce its
rights under the Investment Guarantee after a Holder of the Affiliate Debenture
has made a written request, such Holder of the Affiliate Debenture may
institute a legal proceeding directly against the Guarantor to enforce the
Investment Guarantee Trustee's rights under this Investment Guarantee, without
first instituting a legal proceeding against the Issuer, the Investment
Guarantee Trustee or any other Person. Notwithstanding the foregoing, if the
Guarantor has failed to make a Guarantee Payment, a Holder of the Affiliate
Debenture may directly institute a proceeding in such Holder's own name against
the Guarantor for enforcement of the Investment Guarantee for such payment.
The Guarantor waives any right or remedy to require that any action be brought
first against the Issuer or any other person or entity before proceeding
directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
This Investment Guarantee creates a guarantee of payment and not of
collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Affiliate Debenture against the Issuer in respect of any amounts
paid to such Holders by the Guarantor under this Investment Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Investment
Guarantee, if, at the time of any such payment, any amounts are due and unpaid
under this Investment Guarantee. If any amount shall be paid to the Guarantor
in violation of the preceding sentence, the Guarantor agrees to hold such
amount in trust for the Holders and to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Affiliate
Debenture, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Investment
Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
SUBORDINATION
SECTION 6.1 Ranking
This Investment Guarantee will constitute an unsecured obligation of
the Guarantor and will rank (i) subordinate and junior in right of payment to
all other liabilities of the Guarantor, including, without limitation, the
fees, charges, expenses and indemnities due to the Property Trustee or the
Delaware Trustee in respect of the Declaration of Trust, the Trust Preferred
Securities Guarantee and the Affiliate Debenture Guarantee Agreement, (ii) pari
passu with the most senior preferred or preference stock now or hereafter
issued by the Guarantor and with any guarantee now or hereafter entered into by
the Guarantor in respect of any preferred security of any Affiliate of the
Guarantor, and (iii) senior to the Guarantor's common stock.
10
<PAGE> 12
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Investment Guarantee shall terminate upon the repayment in full
(whether at maturity, upon redemption or otherwise) of all of the principal of,
interest on (including all accrued and unpaid interest thereon) and any other
amounts payable in respect of the Affiliate Debenture. Notwithstanding the
foregoing, this Investment Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of the Affiliate
Debenture must restore payment of any sums paid under the Affiliate Debenture
or under this Investment Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith in accordance with this
Investment Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Investment Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason of
such Indemnified Person's gross negligence or willful misconduct with respect
to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which principal, interest or other payments to Holders of
the Affiliate Debenture might properly be paid.
SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 8.2 shall survive the termination of
this Investment Guarantee or the resignation or removal of the Investment
Guarantee Trustee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Investment Guarantee
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Affiliate
Debenture then outstanding.
11
<PAGE> 13
SECTION 9.2 Amendments
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Investment Guarantee may only be amended with the prior approval of the Holders
of at least a Majority in liquidation amount of the Affiliate Debenture.
SECTION 9.3 Merger of the Guarantor
The Guarantor covenants that it will not merge or consolidate with any
other corporation or other entity or sell or convey all or substantially all of
its assets to any person (other than such a sale or conveyance to a Subsidiary
or any successor thereto (such a sale or conveyance being called an "Asset
Drop-Down")), unless (i) either the Guarantor shall be the continuing
corporation or the successor corporation or other entity or the person which
acquires by sale or conveyance substantially all the assets of the Guarantor
shall expressly assume the obligations of the Guarantor hereunder, according to
their tenor, and the due and punctual performance and observance of all of the
covenants hereof to be performed or observed by the Guarantor, by instrument in
form satisfactory to the Investment Guarantee Trustee, executed and delivered
to the Investment Guarantee Trustee by such corporation or other entity, and
(ii) the Guarantor or such successor corporation or other entity, as the case
may be, shall not, immediately after such merger or consolidation, or such sale
or conveyance, be in default in the performance of any such covenant or
condition. In the event of any Asset Drop-Down after the date hereof, any
subsequent sale or conveyance of assets by a Subsidiary to which assets were
transferred in such Asset Drop-Down will be deemed to be a sale or conveyance
of assets by the Company for purposes of this provision.
SECTION 9.4 Notices
All notices provided for in this Investment Guarantee shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
(a) If given to the Investment Guarantee Trustee, at the
Investment Guarantee Trustee's mailing address set forth below (or such other
address as the Investment Guarantee Trustee may give notice of to the Holders
of the Affiliate Debenture):
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Global Trust Services
Telecopy: (212) 946-8158, 8159 or 8160
(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Affiliate Debenture):
Enron Corp.
1400 Smith Street
Houston, Texas 77002
Attention: Treasury Department
Telecopy: (713) 646-3422
(c) If given to any Holder of Affiliate Debenture, at the address
set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
12
<PAGE> 14
SECTION 9.5 Benefit
This Investment Guarantee is solely for the benefit of the Holders of
the Affiliate Debenture and, subject to Section 3.1(a), is not separately
transferable from the Affiliate Debenture.
SECTION 9.6 Governing Law
THIS INVESTMENT GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
13
<PAGE> 15
This Investment Guarantee is executed as of the day and year first
above written.
ENRON CORP., as Guarantor
By: /s/ William D. Gathmann
-------------------------
William D. Gathmann
Vice President and Treasurer
THE CHASE MANHATTAN BANK,
as Investment Guarantee Trustee
By: /s/ Ronald Halleran
---------------------
Ronald Halleran
Second Vice President
14
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> DEC-31-1996
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 0
<CURRENT-LIABILITIES> 0
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 0
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 0
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 0
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
