<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 4, 1998
POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO. 333-42713, -02, -03
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3**
POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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EL PASO ENERGY CORPORATION
EL PASO ENERGY CAPITAL TRUST II
EL PASO ENERGY CAPITAL TRUST III
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 76-0568816
DELAWARE 76-6133071
DELAWARE 76-6133072
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
<TABLE>
<S> <C>
BRITTON WHITE, JR.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
EL PASO ENERGY BUILDING EL PASO ENERGY BUILDING
1001 LOUISIANA STREET 1001 LOUISIANA STREET
HOUSTON, TEXAS 77002 HOUSTON, TEXAS 77002
(713) 420-2131 (713) 420-2131
(Address, including zip code, and telephone (Name, address, including zip code, and
number, including telephone number,
area code, of registrant's principal executive including area code, of agent for service)
offices)
</TABLE>
---------------------
Copies to:
G. MICHAEL O'LEARY, ESQ.
ANDREWS & KURTH L.L.P.
600 TRAVIS, SUITE 4200
HOUSTON, TEXAS 77002
(713) 220-4360
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**This Post-Effective Amendment to the Registration Statement on Form S-3 is
being filed pursuant to Rule 414 under the Securities Act of 1933, as amended
(the "Securities Act") by the Registrant, the successor to El Paso Natural Gas
Company, a Delaware corporation, following a merger to effect a holding company
reorganization effective as of August 1, 1998. The Registrant hereby expressly
adopts the Registration Statement as its own registration statement for all
purposes of the Securities Act and the Securities Exchange Act of 1934, as
amended, and hereby sets forth any additional information necessary to reflect
any material changes made in connection with or resulting from the succession,
or necessary to keep this Registration Statement from being misleading in any
material respect.
On March 17, 1998, El Paso Energy Capital Trust I ("Trust I") issued
$325,000,000 of its 4 3/4% Trust Convertible Preferred Securities registered
under this Registration Statement. Trust I will not issue any additional Trust
Preferred Securities and is therefore no longer a registrant hereunder.
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
in light of market conditions and other factors.
---------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
---------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
PROSPECTUS
EL PASO ENERGY CORPORATION
SENIOR DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
---------------------
EL PASO ENERGY CAPITAL TRUST II
EL PASO ENERGY CAPITAL TRUST III
TRUST PREFERRED SECURITIES
(GUARANTEED TO THE EXTENT SET FORTH HEREIN BY EL PASO ENERGY CORPORATION)
El Paso Energy Corporation, a Delaware corporation, ("El Paso Energy" or the
"Company") is the successor corporation to and holding company of El Paso
Natural Gas Company ("EPG"). El Paso Energy may offer and sell from time to time
in one or more series its (i) unsecured debt securities which may be senior (the
"Senior Debt Securities") or subordinated (the "Subordinated Debt Securities")
consisting of notes, debentures or other evidences of indebtedness, (ii) shares
of preferred stock, par value $.01 per share (the "Preferred Stock"), and (iii)
shares of common stock, par value $3.00 per share (the "Common Stock").
El Paso Energy Capital Trust II and El Paso Energy Capital Trust III
(individually, an "EPE Trust" and collectively, the "EPE Trusts"), each a
statutory business trust formed under the laws of the State of Delaware, may
offer and sell, from time to time, trust preferred securities, representing
undivided beneficial interests in the assets of the respective EPE Trusts
("Trust Preferred Securities"). El Paso Energy will be the beneficial owner of
all the beneficial ownership interests represented by common securities of each
of the EPE Trusts (the "Trust Common Securities" and, together with the Trust
Preferred Securities, the "Trust Securities"). Holders of the Trust Preferred
Securities will be entitled to receive preferential cumulative cash
distributions accumulating from the date of original issuance and payable
periodically as specified in the applicable supplement to this prospectus (a
"Prospectus Supplement"). Subordinated Debt Securities may be issued and sold by
El Paso Energy from time to time in one or more series to an EPE Trust, or a
trustee of such EPE Trust, in connection with the investment of the proceeds
from the offering of Trust Securities of such EPE Trust. The Subordinated Debt
Securities purchased by an EPE Trust may be subsequently distributed pro rata to
holders of Trust Securities in connection with the dissolution of such EPE Trust
upon the occurrence of certain events as may be described in a related
Prospectus Supplement. The payment of distributions with respect to Trust
Preferred Securities of each of the EPE Trusts out of monies held by each of the
EPE Trusts, and payment on liquidation, redemption or otherwise with respect to
such Trust Preferred Securities, will be guaranteed by El Paso Energy to the
extent described herein (each a "Trust Guarantee"). See "Description of the
Trust Guarantees." El Paso Energy's obligations under the Trust Guarantees will
be subordinate and junior in right of payment to all other liabilities of El
Paso Energy and rank pari passu with the most senior preferred stock, if any,
issued from time to time by El Paso Energy.
The Senior Debt Securities, the Subordinated Debt Securities, the Preferred
Stock and the Common Stock offered hereby are collectively hereinafter referred
to as the "El Paso Energy Securities" and, together with the Trust Securities,
the "Securities." The Securities (excluding Trust Preferred Securities) will be
limited to an aggregate initial public offering price not to exceed
approximately $565 million, or, in the case of Senior Debt Securities and
Subordinated Debt Securities, the equivalent thereof in one or more foreign
currencies, including composite currencies. The Securities may be offered,
separately or together, in separate series, in amounts, at prices and on terms
to be determined at the time of sale and set forth in a related Prospectus
Supplement.
Certain specific terms of the particular Securities for which this
Prospectus is being delivered will be set forth in a related Prospectus
Supplement, including, where applicable: (i) in the case of Senior Debt
Securities or Subordinated Debt Securities, the specific designation, aggregate
principal amount, authorized denominations, maturities, interest rate or rates
(which may be fixed or variable), the date or dates on which interest, if any,
shall be payable, the place or places where principal of and premium, if any,
and interest, if any, on such Senior Debt Securities or Subordinated Debt
Securities of the series will be payable, terms of optional or mandatory
redemption or any sinking fund or analogous provisions, currency or currencies,
or currency unit or currency units of denomination and payment if other than
U.S. dollars, the initial public offering price, terms relating to temporary or
permanent global securities, provisions regarding convertibility or
exchangeability, if any, provisions regarding registration of transfer or
exchange, the proceeds to El Paso Energy and other special terms; (ii) in the
case of Preferred Stock, the specific designations, the number of shares,
dividend rights (including, if applicable, the manner of calculation thereof),
and any liquidation, redemption, conversion, exchange, voting and other rights,
the initial public offering price and other special terms; (iii) in the case of
Common Stock, the terms of the offering and sales thereof; and (iv) in the case
of the Trust Preferred Securities or the related Trust Guarantees, the specific
designation, aggregate offering amount, denomination, term, coupon rate, time of
payment of distributions, terms of redemption at the option of El Paso Energy or
repayment at the option of the holder, provisions regarding conversion or
exchange for capital stock of El Paso Energy, the designation of the Trustee(s)
acting under the applicable Indenture or Trust Guarantee and the public offering
price.
The Securities may be offered and sold to or through underwriters, dealers,
or agents as designated from time to time, or through a combination of such
methods, and also may be offered and sold directly to one or more other
purchasers. See "Plan of Distribution." The names of, and the principal amounts
or number of shares to be purchased by, underwriters, dealers or agents, and the
compensation of such underwriters, dealers or agents, including any applicable
fees, commissions, and discounts, will be set forth in the related Prospectus
Supplement. No Securities may be sold without delivery of a Prospectus
Supplement describing such series or issue of Securities and the method and
terms of offering thereof.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------
The date of this Prospectus is September , 1998
<PAGE> 3
AVAILABLE INFORMATION
El Paso Energy is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the following Regional Offices of the Commission:
7 World Trade Center, Suite 1300, New York, New York 10048; and The Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511.
Copies of such material also may be obtained at prescribed rates from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the Commission at 1-800-SEC-0330 for further information on
the Public Reference Room. Such material also may be accessed electronically by
means of the Commission's home page on the Internet at "http://www.sec.gov." El
Paso Energy's Common Stock is listed for trading on the New York Stock Exchange
(the "NYSE") under the trading symbol "EPG," and reports, proxy statements and
other information concerning El Paso Energy may be inspected at the offices of
the NYSE, 20 Broad Street, New York, New York 10005.
This Prospectus does not contain all of the information set forth in the
Registration Statement, of which this Prospectus is a part, filed with the
Commission under the Securities Act of 1933, as amended (the "Securities Act").
Reference is made to such Registration Statement for further information with
respect to El Paso Energy and the Securities offered hereby. Statements
contained herein concerning the provisions of documents are necessarily
summaries of such documents, and each statement is qualified in its entirety by
reference to the copy of the applicable document filed with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed with the Commission by EPG and El
Paso Energy pursuant to the Exchange Act are incorporated herein by reference:
1. EPG's Annual Report on Form 10-K for the fiscal year ended December
31, 1997 (the "1997 Form 10-K");
2. EPG's Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1998;
3. EPG's Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1998;
4. The portions of EPG's definitive Proxy Statement for the Annual
Meeting of Stockholders held on May 12, 1998, that have been
incorporated by reference into the 1997 Form 10-K;
5. EPG's Current Reports on Form 8-K dated March 17, 1998 and August
3, 1998;
6. El Paso Energy's Current Reports on Form 8-K dated August 3, 1998
and August 25, 1998;
7. El Paso Energy's Registration Statement on Form 8-A, filed with
respect to the Common Stock; and
8. El Paso Energy's Registration Statement on Form 8-A, filed with
respect to the Preferred Stock Purchase Rights.
All documents and reports filed by El Paso Energy pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Securities
offered hereby shall be deemed to be incorporated by reference in this
Prospectus and to be part hereof from the date of filing of such documents and
reports. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained therein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
2
<PAGE> 4
El Paso Energy will provide without charge to each person, including any
beneficial owner of a Security, to whom a copy of this Prospectus is delivered,
upon written or oral request of such person, a copy of any or all documents
incorporated by reference in this Prospectus (other than exhibits to such
documents unless such exhibits are specifically incorporated by reference into
such documents). Written requests for such copies should be directed to the Vice
President, Investor and Public Relations, El Paso Energy Corporation, 1001
Louisiana Street, Houston, Texas 77002, (telephone (713) 420-2131).
CERTAIN FORWARD-LOOKING STATEMENTS
This Prospectus and the accompanying Prospectus Supplement (including the
documents incorporated by reference herein) contain forward-looking statements
within the meaning of the Private Securities Litigation Reform Act of 1995.
Where any such forward-looking statement includes a statement of the assumptions
or bases underlying such forward-looking statement, El Paso Energy cautions
that, while such assumptions or bases are believed to be reasonable and are made
in good faith, assumed facts or bases almost always vary from the actual
results, and the differences between assumed facts or bases and actual results
can be material, depending upon the circumstances. Where, in any forward-looking
statement, El Paso Energy, including its subsidiaries, or its management
expresses an expectation or belief as to future results, such expectation or
belief is expressed in good faith and is believed to have a reasonable basis,
but there can be no assurance that the statement of expectation or belief will
result or be achieved or accomplished. The words "believe," "expect,"
"estimate," "anticipate" and similar expressions may identify forward-looking
statements.
Important factors that could cause actual results to differ materially from
those in the forward-looking statements herein include increasing competition
within El Paso Energy's industry, the timing and extent of changes in commodity
prices for natural gas and power, uncertainties associated with acquisitions and
joint ventures, potential environmental liabilities, potential contingent
liabilities and tax liabilities related to El Paso Energy's acquisitions,
political and economic risks associated with current and future operations in
foreign countries, conditions of the equity and other capital markets during the
periods covered by the forward-looking statements, and other risks,
uncertainties and factors, including the effect of the year 2000 date change,
discussed more completely in El Paso Energy's other filings with the Commission,
including the 1997 Form 10-K.
3
<PAGE> 5
THE COMPANY
On August 1, 1998, EPG reorganized into a holding company form of
organizational structure, whereby El Paso Energy, a Delaware corporation became
the holding company and succeeded EPG as the publicly traded corporation. El
Paso Energy's principal operations include the interstate and intrastate
transportation, gathering and processing of natural gas; the marketing of
natural gas and power and other commodities; and the development and operation
of energy infrastructure facilities worldwide.
The Company owns or has interests in over 28,200 miles of interstate and
intrastate pipeline systems connecting the nation's principal natural gas supply
regions to four of the largest consuming regions in the United States, namely
the Gulf Coast, California, the Northeast and the Midwest. The Company's natural
gas transmission operations include one of the nation's largest mainline natural
gas transmission systems which is comprised of five interstate pipeline systems:
El Paso Natural Gas, Tennessee Gas Pipeline, Midwestern Gas Transmission, East
Tennessee Natural Gas, and Mojave Pipeline. Intrastate transmission operations
are conducted through El Paso Energy's interests in Oasis Pipe Line Company,
Channel Industries Gas Company, and Gulf States Gas Pipeline Company.
In addition to its interstate and intrastate transmission services, El Paso
Energy provides services including natural gas gathering, products extraction,
dehydration, purification and compression. These operations include interests in
41 gathering systems, 25 natural gas processing and treating facilities located
in the most prolific and active production areas of the United States (including
the San Juan, Anadarko and Permian Basins and in East Texas, South Texas,
Louisiana and the Gulf of Mexico), and 8 offshore platforms. El Paso Energy's
marketing activities include the purchasing, marketing and trading of natural
gas, natural gas liquids, power, crude oil and refined products, as well as
providing integrated price risk management services associated with these
commodities, and the participation in the development and ownership of domestic
power generating facilities.
The Company's international activities are focused on the development and
operation of international energy infrastructure projects and include ownership
interests in (i) three major existing natural gas transmission systems in
Australia, (ii) natural gas transmission and power generation facilities
currently in operation or under construction in Argentina, Bolivia, Brazil,
Chile, Czech Republic, Hungary, Indonesia, Mexico, Pakistan and Peru, and (iii)
three operating domestic power generation plants.
El Paso Energy's principal executive offices are located at 1001 Louisiana
Street, Houston, Texas 77002, and its telephone number at that address is (713)
420-2131.
HOLDING COMPANY REORGANIZATION
EPG, a Delaware corporation which was incorporated in 1928, reorganized its
corporate structure on August 1, 1998, to establish the Company as the parent
corporation for the operating subsidiaries (the "Reorganization"). In order to
effect the Reorganization, EPG incorporated the Company as a new wholly owned
holding company of EPG and then merged EPG with an indirect, wholly owned
subsidiary of the Company. The merger was effected without a vote of
stockholders of EPG pursuant to the provisions of the General Corporation Law of
Delaware. The capital structure of the Company is the same as that of EPG prior
to the merger.
In connection with the Reorganization, the Company, as the new holding
company, assumed certain liabilities and obligations of EPG, including those
with respect to the $334,750,000 aggregate principal amount of 4 3/4%
Subordinated Convertible Debentures due 2028 and the guarantee with respect to
the $325,000,000 aggregate liquidation amount of 4 3/4% Trust Convertible
Preferred Securities of Trust I.
4
<PAGE> 6
THE EPE TRUSTS
Each of EPE Trust II and EPE Trust III is a statutory business trust
created under the laws of the State of Delaware pursuant to (i) a separate
original declaration of trust, each of which has been amended and restated (as
so amended and restated, each a "Declaration"), executed by El Paso Energy, as
sponsor for such EPE Trust (the "Sponsor"), and the Trustees (as defined herein)
for such EPE Trust, and (ii) the filing of a certificate of trust with the
Delaware Secretary of State. Each Declaration will be qualified as an indenture
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
Each EPE Trust exists for the exclusive purposes of (i) issuing and selling the
Trust Securities, (ii) investing the gross proceeds from the sale of the Trust
Securities in Subordinated Debt Securities issued by El Paso Energy, and (iii)
engaging in only those other activities necessary or incidental thereto.
All of the Trust Common Securities issued by each of the EPE Trusts will be
directly or indirectly owned by El Paso Energy. The Trust Common Securities will
rank pari passu, and payments will be made thereon pro rata, with the Trust
Preferred Securities except that upon an event of default under the applicable
Declaration, the rights of the holders of the Trust Common Securities to payment
in respect of distributions and payments upon liquidation, redemption, and
otherwise will be subordinated to the rights of the holders of the Trust
Preferred Securities. El Paso Energy will, directly or indirectly, acquire Trust
Common Securities in an aggregate liquidation amount equal to 3% of the total
capital of each EPE Trust. A majority of the Trustees (the "Administrative
Trustees") of each EPE Trust will be persons who are employees or officers of or
affiliated with El Paso Energy. One trustee of each EPE Trust will be a
financial institution that will be unaffiliated with El Paso Energy and that
will act as property trustee and as indenture trustee for purposes of the Trust
Indenture Act, pursuant to the terms set forth in a Prospectus Supplement (the
"Property Trustee"). In addition, unless the Property Trustee maintains a
principal place of business in the State of Delaware, and otherwise meets the
requirements of applicable law, one trustee of each EPE Trust will have its
principal place of business or reside in the State of Delaware (the "Delaware
Trustee" and, together with the Administrative Trustees and the Property
Trustee, the "Trustees"). Each EPE Trust's business and affairs will be
conducted by the Trustees appointed by the Company, as the direct or indirect
holder of all the Trust Common Securities. Except in certain limited
circumstances, the holder of the Trust Common Securities will be entitled to
appoint, remove or replace any of, or increase or reduce the number of, the
Trustees of an EPE Trust. The duties and obligations of the Trustees shall be
governed by the Declaration of each EPE Trust. El Paso Energy will pay all fees
and expenses related to the EPE Trusts and the offering of Trust Securities, the
payment of which will be guaranteed by El Paso Energy. The office of the
Delaware Trustee for each EPE Trust in the State of Delaware is 1201 Market
Street, Wilmington, Delaware 19801. The principal place of business of each EPE
Trust shall be c/o El Paso Energy Corporation, 1001 Louisiana Street, Houston,
Texas 77002, and its telephone number is (713) 420-2131.
USE OF PROCEEDS
Unless otherwise specified in a Prospectus Supplement, the net proceeds
received by the Company from the sale of Senior Debt Securities, Subordinated
Debt Securities, Preferred Stock and Common Stock will be used for general
corporate purposes. Funds not required immediately for such purposes may be
invested in marketable securities and short-term investments. The EPE Trusts
will use all proceeds received from the sale of the Trust Preferred Securities
to purchase Subordinated Debt Securities from the Company.
5
<PAGE> 7
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF
EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED AND PREFERENCE STOCK DIVIDEND REQUIREMENTS
<TABLE>
<CAPTION>
SIX MONTHS
ENDED YEAR ENDED DECEMBER 31,
JUNE 30, -----------------------------------------
1998(2) 1997 1996 1995 1994 1993
---------- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges and Ratio of
Earnings to Combined Fixed
Charges and Preferred and
Preference Stock Dividend
Requirements(1)............. 2.08x 2.26x 1.59x 2.51x 2.87x 3.04x
</TABLE>
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(1) The ratio of earnings to combined fixed charges and preferred and preference
stock dividend requirements for the periods presented is the same as the
ratio of earnings to fixed charges since El Paso Energy has no outstanding
preferred stock or preference stock and, therefore, no dividend
requirements.
(2) Because of the seasonal nature of El Paso Energy's business, the ratio for
the six month period may not necessarily be indicative of the ratio that
will result for the full year 1998.
For purposes of calculating these ratios: (i) "fixed charges" represent
interest cost (exclusive of interest on rate refunds), amortization of debt
costs, the estimated portion of rental expense representing the interest factor,
and the pre-tax preferred stock dividend requirements of majority-owned
subsidiaries; and (ii) "earnings" represent the aggregate of income from
continuing operations before income taxes, interest expense (exclusive of
interest on rate refunds), amortization of debt costs, the estimated portion of
rental expense representing the interest factor, and the actual amount of any
preferred stock dividend requirements of majority owned subsidiaries, adjusted
to reflect actual distributions from equity investments.
DESCRIPTION OF THE SENIOR DEBT SECURITIES
The Senior Debt Securities offered hereby will represent unsecured
obligations of El Paso Energy. The Senior Debt Securities offered hereby will be
issued under an indenture (the "Senior Indenture"), between El Paso Energy and
The Chase Manhattan Bank, as trustee (the "Senior Debt Trustee"). The Senior
Indenture does not limit the aggregate principal amount of Senior Debt
Securities that may be issued thereunder from time to time in one or more
series.
The terms of the Senior Debt Securities include those stated in the Senior
Indenture and those made part of the Senior Indenture by reference to the Trust
Indenture Act. The Senior Debt Securities are subject to all such terms, and
holders of Senior Debt Securities are referred to the Senior Indenture and the
Trust Indenture Act for a statement of those terms.
The statements set forth below in this section are brief summaries of
certain provisions contained in the Senior Indenture, do not purport to be
complete, and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Senior Indenture, including the definitions
therein of certain terms, a copy of which Senior Indenture is incorporated by
reference as an exhibit to the Registration Statement of which this Prospectus
is a part. Capitalized terms used in this section and not otherwise defined in
this section have the respective meanings assigned to them in the Senior
Indenture.
GENERAL
Reference is made to the Prospectus Supplement relating to the particular
series offered thereby for the terms of such Senior Debt Securities, including
where applicable: (a) the form and title of the Senior Debt Securities; (b) the
aggregate principal amount of the Senior Debt Securities; (c) the date or dates
on which the Senior Debt Securities may be issued; (d) the date or dates on
which the principal of and premium, if any, on the Senior Debt Securities shall
be payable; (e) the rate or rates (which may be fixed or variable) at which
6
<PAGE> 8
the Senior Debt Securities shall bear interest, if any, and the date or dates
from which such interest shall accrue; (f) the dates on which interest, if any,
shall be payable and the record dates for the interest payment dates; (g) the
place or places where the principal of and premium, if any, and interest, if
any, on the Senior Debt Securities of the series will be payable; (h) the period
or periods, if any, within which, the price or prices at which, and the terms
and conditions upon which, the Senior Debt Securities may be redeemed at the
option of El Paso Energy or otherwise; (i) any optional or mandatory redemption
or any sinking fund or analogous provisions; (j) if other than denominations of
$1,000 and integral multiples thereof, the denominations in which the Senior
Debt Securities of the series shall be issuable; (k) if other than the principal
amount thereof, the portion of the principal amount of the Senior Debt
Securities which shall be payable upon declaration of the acceleration of the
maturity thereof in accordance with the provisions of the Senior Indenture; (l)
whether payment of the principal of and premium, if any, and interest, if any,
on the Senior Debt Securities shall be without deduction for taxes, assessments,
or governmental charges paid by the holders; (m) the currency or currencies, or
currency unit or currency units, in which the principal of and premium, if any,
and interest, if any, on the Senior Debt Securities shall be denominated,
payable, redeemable or purchasable, as the case may be; (n) any Events of
Default (as defined below) with respect to the Senior Debt Securities that
differ from those set forth in the Senior Indenture; (o) whether the Senior Debt
Securities will be convertible; (p) whether the Senior Debt Securities of such
series shall be issued as a global certificate or certificates and, in such
case, the identity of the depositary for such series; (q) provisions regarding
the convertibility or exchangeability of the Senior Debt Securities; and (r) any
other terms not inconsistent with the Senior Indenture.
If any Senior Debt Securities offered hereby are sold for foreign
currencies or foreign currency units or if the principal of and premium, if any,
or interest, if any, on any series of Senior Debt Securities is payable in
foreign currencies or foreign currency units, the restrictions, elections, tax
consequences, specific terms and other information with respect to such issue of
Senior Debt Securities and such currencies and currency units will be set forth
in the Prospectus Supplement relating thereto.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Senior Debt Securities offered hereby will be issued only in fully
registered form in denominations of $1,000 or any integral multiple thereof. The
Senior Debt Securities of a series may be issuable in the form of one or more
global certificates, which will be denominated in an amount equal to all or a
portion of the aggregate principal amount of such Senior Debt Securities. See
"-- Global Senior Debt Securities."
One or more series of Senior Debt Securities offered hereby may be sold at
a substantial discount below their stated principal amount, bearing no interest
or interest at a rate that at the time of issuance is below market rates. The
federal income tax consequences and special considerations applicable to any
such series of Senior Debt Securities will be described generally in the
Prospectus Supplement relating thereto.
FORM, EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
No service charge will be made for any transfer or exchange of the Senior
Debt Securities, but the Company or the Senior Debt Trustee may require payment
of a sum sufficient to cover any tax or other government charge payable in
connection therewith. Where Senior Debt Securities of any series are issued in
bearer form, the special restrictions and considerations, including special
offering restrictions and special U.S. federal income tax considerations,
applicable to any such Senior Debt Securities and to payment on and transfer and
exchange of such Senior Debt Securities will be described in the applicable
Prospectus Supplement. Bearer Senior Debt Securities will be transferable by
delivery.
Unless otherwise provided in the applicable Prospectus Supplement,
principal and premium, if any, or interest, if any, will be payable and the
Senior Debt Securities may be surrendered for payment or transferred at the
offices of the Senior Debt Trustee as paying and authenticating agent, provided
that payment of interest on registered securities may be made at the option of
the Company by check mailed to the address of the person entitled thereto as it
appears in the Security Register, or by transfer to an account maintained by the
person entitled thereto, provided that the proper wire transfer instructions
have been received by the Company
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prior to the Record Date. Payment of Senior Debt Securities in bearer form will
be made at such paying agencies outside of the United States as the Company may
appoint.
GLOBAL SENIOR DEBT SECURITIES
The Senior Debt Securities of a series may be issued in whole or in part in
the form of one or more global certificates that will be deposited with, or on
behalf of, a depositary (the "Depositary"), or its nominee, identified in the
Prospectus Supplement relating to such series. Unless and until such global
certificate or certificates are exchanged in whole or in part for Senior Debt
Securities in individually certificated form, a global Senior Debt Security may
not be transferred or exchanged except as a whole to a nominee of the Depositary
for such global Senior Debt Security, or by a nominee for the Depositary to the
Depositary, or to a successor of the Depositary or a nominee of such successor,
except in the circumstances described in the applicable Prospectus Supplement.
The specific terms of the depositary arrangement with respect to a series
of Senior Debt Securities and the rights of, and limitations on, owners of
beneficial interests in a global Senior Debt Security representing all or a
portion of a series of Senior Debt Securities will be described in the
Prospectus Supplement relating to such series.
CERTAIN COVENANTS
Limitations on Liens. The Senior Indenture provides that El Paso Energy
will not, nor will it permit any Restricted Subsidiary (as defined below) to,
create, assume, incur or suffer to exist any Lien (as defined below) upon any
Principal Property (as defined below), whether owned or leased on the date of
the Senior Indenture or thereafter acquired, to secure any Debt (as defined
below) of El Paso Energy or any other Person (as defined below) (other than the
Senior Debt Securities issued thereunder), without in any such case making
effective provision whereby all of the Senior Debt Securities Outstanding
thereunder shall be secured equally and ratably with, or prior to, such Debt so
long as such Debt shall be so secured. There is excluded from this restriction:
(i) any Lien upon any property or assets of El Paso Energy or any
Restricted Subsidiary in existence on the date of the Senior Indenture or
created pursuant to an "after-acquired property" clause or similar term in
existence on the date of the Senior Indenture or any mortgage, pledge
agreement, security agreement or other similar instrument in existence on
the date of the Senior Indenture;
(ii) any Lien upon any property or assets created at the time of
acquisition of such property or assets by El Paso Energy or any Restricted
Subsidiary or within one year after such time to secure all or a portion of
the purchase price for such property or assets or Debt incurred to finance
such purchase price, whether such Debt was incurred prior to, at the time
of or within one year of such acquisition;
(iii) any Lien upon any property or assets existing thereon at the
time of the acquisition thereof by El Paso Energy or any Restricted
Subsidiary (whether or not the obligations secured thereby are assumed by
El Paso Energy or any Restricted Subsidiary);
(iv) any Lien upon any property or assets of a Person existing thereon
at the time such Person becomes a Restricted Subsidiary by acquisition,
merger or otherwise;
(v) the assumption by El Paso Energy or any Restricted Subsidiary of
obligations secured by any Lien existing at the time of the acquisition by
El Paso Energy or any Restricted Subsidiary of the property or assets
subject to such Lien or at the time of the acquisition of the Person which
owns such property or assets;
(vi) any Lien on property to secure all or part of the cost of
construction or improvements thereon or to secure Debt incurred prior to,
at the time of, or within one year after completion of such construction or
making of such improvements, to provide funds for any such purpose;
(vii) any Lien on any oil, gas, mineral and processing and other plant
properties to secure the payment of costs, expenses or liabilities incurred
under any lease or grant or operating or other similar
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agreement in connection with or incident to the exploration, development,
maintenance or operation of such properties;
(viii) any Lien arising from or in connection with a conveyance by El
Paso Energy or any Restricted Subsidiary of any production payment with
respect to oil, gas, natural gas, carbon dioxide, sulphur, helium, coal,
metals, minerals, steam, timber or other natural resources;
(ix) any Lien in favor of El Paso Energy or any Restricted Subsidiary;
(x) any Lien created or assumed by El Paso Energy or any Restricted
Subsidiary in connection with the issuance of Debt the interest on which is
excludable from gross income of the holder of such Debt pursuant to the
Internal Revenue Code of 1986, as amended, or any successor statute, for
the purpose of financing, in whole or in part, the acquisition or
construction of property or assets to be used by El Paso Energy or any
Subsidiary;
(xi) any Lien upon property or assets of any foreign Restricted
Subsidiary to secure Debt of that foreign Restricted Subsidiary;
(xii) Permitted Liens (as defined below);
(xiii) any Lien upon any additions, improvements, replacements,
repairs, fixtures, appurtenances or component parts thereof attaching to or
required to be attached to property or assets pursuant to the terms of any
mortgage, pledge agreement, security agreement or other similar instrument,
creating a Lien upon such property or assets permitted by clauses (i)
through (xii), inclusive, above; or
(xiv) any extension, renewal, refinancing, refunding or replacement
(or successive extensions, renewals, refinancing, refundings or
replacements) of any Lien, in whole or in part, that is referred to in
clauses (i) through (xiii), inclusive, above, or of any Debt secured
thereby; provided, however, that the principal amount of Debt secured
thereby shall not exceed the greater of the principal amount of Debt so
secured at the time of such extension, renewal, refinancing, refunding or
replacement and the original principal amount of Debt so secured (plus in
each case the aggregate amount of premiums, other payments, costs and
expenses required to be paid or incurred in connection with such extension,
renewal, refinancing, refunding or replacement); provided further, however,
that such extension, renewal, refinancing, refunding or replacement shall
be limited to all or a part of the property (including improvements,
alterations and repairs on such property) subject to the encumbrance so
extended, renewed, refinanced, refunded or replaced (plus improvements,
alterations and repairs on such property).
Notwithstanding the foregoing, under the Senior Indenture, El Paso Energy
may, and may permit any Restricted Subsidiary to, create, assume, incur, or
suffer to exist any Lien upon any Principal Property to secure Debt of El Paso
Energy or any Person (other than the Senior Debt Securities) that is not
excepted by clauses (i) through (xiv), inclusive, above without securing the
Senior Debt Securities issued under the Senior Indenture, provided that the
aggregate principal amount of all Debt then outstanding secured by such Lien and
all similar Liens, together with all net sale proceeds from Sale-Leaseback
Transactions (as defined below) (excluding Sale-Leaseback Transactions permitted
by clauses (i) through (iv), inclusive, of the first paragraph of the
restriction on sale-leasebacks covenant described below) does not exceed 15% of
Consolidated Net Tangible Assets (as defined below).
Restriction on Sale-Leasebacks. The Senior Indenture provides that El Paso
Energy will not, nor will it permit any Restricted Subsidiary to, engage in a
Sale-Leaseback Transaction, unless: (i) such Sale-Leaseback Transaction occurs
within one year from the date of acquisition of the Principal Property subject
thereto or the date of the completion of construction or commencement of full
operations on such Principal Property, whichever is later; (ii) the
Sale-Leaseback Transaction involves a lease for a period, including renewals, of
not more than three years; (iii) El Paso Energy or such Restricted Subsidiary
would be entitled to incur Debt secured by a Lien on the Principal Property
subject thereto in a principal amount equal to or exceeding the net sale
proceeds from such Sale-Leaseback Transaction without securing the Senior Debt
Securities; or (iv) El Paso Energy or such Restricted Subsidiary, within a
one-year period after such Sale-Leaseback Transaction, applies or causes to be
applied an amount not less than the net sale proceeds from such Sale-
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Leaseback Transaction to (A) the repayment, redemption or retirement of Funded
Debt (as defined below) of El Paso Energy or any such Restricted Subsidiary, or
(B) investment in another Principal Property.
Notwithstanding the foregoing, under the Senior Indenture El Paso Energy
may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback
Transaction that is not excepted by clauses (i) through (iv), inclusive, of the
above paragraph, provided that the net sale proceeds from such Sale-Leaseback
Transaction, together with the aggregate principal amount of outstanding Debt
(other than the Senior Debt Securities) secured by Liens upon Principal
Properties not excepted by clauses (i) through (xiv), inclusive, of the first
paragraph of the limitation on liens covenant described above, do not exceed 15%
of the Consolidated Net Tangible Assets.
Certain Defined Terms. As used herein:
"Consolidated Net Tangible Assets" means, at any date of determination, the
total amount of assets after deducting therefrom (i) all current liabilities
(excluding (A) any current liabilities that by their terms are extendable or
renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed, and (B) current
maturities of long-term debt), and (ii) the value (net of any applicable
reserves) of all goodwill, trade names, trademarks, patents and other like
intangible assets, all as set forth on the consolidated balance sheet of El Paso
Energy and its consolidated subsidiaries for El Paso Energy's most recently
completed fiscal quarter, prepared in accordance with generally accepted
accounting principles.
"Debt" means any obligation created or assumed by any Person for the
repayment of money borrowed and any purchase money obligation created or assumed
by such Person.
"Funded Debt" means all Debt maturing one year or more from the date of the
creation thereof, all Debt directly or indirectly renewable or extendible, at
the option of the debtor, by its terms or by the terms of any instrument or
agreement relating thereto, to a date one year or more from the date of the
creation thereof, and all Debt under a revolving credit or similar agreement
obligating the lender or lenders to extend credit over a period of one year or
more.
"Lien" means any mortgage, pledge, security interest, charge, lien or other
encumbrance of any kind, whether or not filed, recorded or perfected under
applicable law.
"Permitted Liens" means (i) Liens upon rights-of-way for pipeline purposes;
(ii) any governmental Lien, mechanics', materialmen's, carriers' or similar Lien
incurred in the ordinary course of business which is not yet due or which is
being contested in good faith by appropriate proceedings and any undetermined
Lien which is incidental to construction; (iii) the right reserved to, or vested
in, any municipality or public authority by the terms of any right, power,
franchise, grant, license, permit or by any provision of law, to purchase or
recapture or to designate a purchaser of, any property; (iv) Liens of taxes and
assessments which are (A) for the then current year, (B) not at the time
delinquent, or (C) delinquent but the validity of which is being contested at
the time by El Paso Energy or any Subsidiary in good faith; (v) Liens of, or to
secure performance of, leases; (vi) any Lien upon, or deposits of, any assets in
favor of any surety company or clerk of court for the purpose of obtaining
indemnity or stay of judicial proceedings; (vii) any Lien upon property or
assets acquired or sold by El Paso Energy or any Restricted Subsidiary resulting
from the exercise of any rights arising out of defaults on receivables; (viii)
any Lien incurred in the ordinary course of business in connection with
workmen's compensation, unemployment insurance, temporary disability, social
security, retiree health or similar laws or regulations or to secure obligations
imposed by statute or governmental regulations; (ix) any Lien upon any property
or assets in accordance with customary banking practice to secure any Debt
incurred by El Paso Energy or any Restricted Subsidiary in connection with the
exporting of goods to, or between, or the marketing of goods in, or the
importing of goods from, foreign countries; or (x) any Lien in favor of the U.S.
or any state thereof, or any other country, or any political subdivision of any
of the foregoing, to secure partial, progress, advance, or other payments
pursuant to any contract or statute, or any Lien securing industrial
development, pollution control, or similar revenue bonds.
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"Person" means any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust, other
entity, unincorporated organization, or government or any agency or political
subdivision thereof.
"Principal Property" means (a) any pipeline assets of El Paso Energy or any
Subsidiary, including any related facilities employed in the transportation,
distribution or marketing of natural gas, that are located in the U.S. or
Canada, and (b) any processing or manufacturing plant owned or leased by El Paso
Energy or any Subsidiary that is located within the U.S. or Canada, except, in
the case of either clause (a) or (b), any such assets or plant which, in the
opinion of El Paso Energy's Board of Directors, is not material in relation to
the activities of El Paso Energy and its Subsidiaries as a whole.
"Restricted Subsidiary" means any Subsidiary of El Paso Energy owning or
leasing any Principal Property.
"Sale-Leaseback Transaction" means the sale or transfer by El Paso Energy
or any Restricted Subsidiary of any Principal Property to a Person (other than
El Paso Energy or a Subsidiary) and the taking back by El Paso Energy or any
Restricted Subsidiary, as the case may be, of a lease of such Principal
Property.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Senior Indenture provides that El Paso Energy may, without the consent
of the Senior Debt Trustee or the holders of any Senior Debt Securities issued
thereunder, consolidate or merge with, or sell, lease or transfer its properties
and assets as, or substantially as, an entirety to, any Person, provided that
(i) either El Paso Energy is the surviving entity or such successor Person shall
expressly assume the due and punctual payment of the principal of, and any
premium and interest on, all the Senior Debt Securities and the performance or
observance of every covenant and condition of the Senior Indenture on the part
of El Paso Energy to be performed or observed, (ii) immediately after giving
effect to the transaction, no Default or Event of Default exists, and (iii) El
Paso Energy has delivered the Officer's Certificate and Opinion of Counsel
required by the Senior Indenture. Any such successor Person shall succeed to and
be substituted for, and may exercise every right and power of, El Paso Energy
under the Senior Indenture with the same effect as if it had been named a party
in the Senior Indenture and El Paso Energy shall, except in the case of a lease,
be released and discharged from all its obligations under the Senior Debt
Securities and the Senior Indenture. Notwithstanding the foregoing, El Paso
Energy currently anticipates that it will provide in any supplemental Senior
Indenture, including with respect to existing issuances of Senior Debt
Securities, that the predecessor Person may, in the alternative, elect not to be
so released from such obligations, provided that the predecessor Person and the
successor Person shall agree, pursuant to such supplemental Senior Indenture, to
be co-obligors jointly and severally with respect to all such obligations.
EVENTS OF DEFAULT
An "Event of Default" will occur under the Senior Indenture with respect to
Senior Debt Securities of a particular series issued thereunder upon: (a)
default in the payment of the principal of, or premium, if any, on, any Senior
Debt Security of such series at its maturity; (b) default in the payment of any
interest on any Senior Debt Security of such series when it becomes due and
payable and continuance of such default for a period of 30 days; (c) default in
the performance, or breach, of any term, covenant or warranty contained in the
Senior Indenture with respect to such series for a period of 60 days upon giving
written notice as provided in the Senior Indenture; (d) the occurrence of
certain events of bankruptcy; or (e) any other Event of Default applicable to
such series.
The Senior Indenture provides that if an Event of Default with respect to a
series of Senior Debt Securities issued thereunder shall have occurred and be
continuing, either the Senior Debt Trustee or the holders of not less than 25%
in principal amount of Senior Debt Securities of such series then outstanding
may declare the principal amount of all Senior Debt Securities of such series to
be due and payable immediately upon giving written notice as provided in the
Senior Indenture. The Senior Indenture provides that the holders of a majority
in principal amount of Senior Debt Securities then outstanding of such series
may rescind and annul such declaration and its consequences under certain
circumstances.
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The holders of a majority in principal amount of Senior Debt Securities of
a series then outstanding may waive past defaults under the Senior Indenture
with respect to such series and its consequences (except a continuing default in
the payment of principal of or premium, if any, or interest on any series of
Senior Debt Securities or a default in respect of any covenant or provision of
the Senior Indenture which cannot be modified or amended by a supplemental
Senior Indenture without the consent of the holder of each outstanding Senior
Debt Security affected thereby).
Pursuant to the Senior Indenture, the holders of a majority in aggregate
principal amount of all affected series of Senior Debt Securities then
outstanding may direct with respect to such series the time, method, and place
of conducting any proceeding for any remedy available to the Senior Debt Trustee
or exercising any trust or power conferred on the Senior Debt Trustee, provided
that such direction shall not be in conflict with any rule of law or the Senior
Indenture. Before proceeding to exercise any right or power under the Senior
Indenture at the direction of any holders, the Senior Debt Trustee shall be
entitled to receive from such holders reasonable security or indemnity against
the costs, expenses, and liabilities which might be incurred by it in compliance
with any such direction.
Under the terms of the Senior Indenture, El Paso Energy is required to
furnish to the Senior Debt Trustee annually an Officer's Certificate to the
effect that to the best of such officer's knowledge, El Paso Energy is not in
default in the performance and observance of the terms, provisions and
conditions of the Senior Indenture or, if such officer has knowledge that El
Paso Energy is in default, specifying such default. The Senior Indenture
requires the Senior Debt Trustee to give to all holders of Senior Debt
Securities outstanding thereunder notice of any Default by El Paso Energy in the
manner provided in the Senior Indenture, unless such Default shall have been
cured or waived; however, except in the case of a default in the payment of
principal of and premium, if any, or interest, if any, on any Senior Debt
Securities outstanding thereunder, the Senior Debt Trustee is entitled to
withhold such notice in the event that the board of directors, the executive
committee, or a trust committee of directors or certain officers of the Senior
Debt Trustee in good faith determine that withholding such notice is in the
interest of the holders of such outstanding Senior Debt Securities.
SATISFACTION AND DISCHARGE; LEGAL AND COVENANT DEFEASANCE
Under the terms of the Senior Indenture, El Paso Energy may satisfy and
discharge certain obligations to holders of Senior Debt Securities of any series
which have not already been delivered to the Senior Debt Trustee for
cancellation and which have either become due and payable or are by their terms
due and payable within one year or are to be called for redemption within one
year by (i) depositing or causing to be deposited with the Senior Debt Trustee
funds in an amount sufficient to pay the principal and any premium and interest
to the date of such deposit (in case of Senior Debt Securities of such series
which have become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be, (ii) paying or causing to be paid all other sums payable
under the Senior Indenture with respect to such Senior Debt Securities, and
(iii) delivering to the Senior Debt Trustee an Officer's Certificate and Opinion
of Counsel relating to such satisfaction and discharge.
The Senior Indenture also provides that El Paso Energy and any other
obligor, if any, will be discharged from any and all obligations in respect of
any series of Senior Debt Securities issued thereunder (excluding, however,
certain obligations, such as the obligation to register the transfer or exchange
of such outstanding Senior Debt Securities of such series, to replace stolen,
lost, mutilated or destroyed certificates, to pay principal and interest on the
original stated due dates or specified redemption date, to make any sinking fund
payments, and to maintain paying agencies) on the 91st day following the deposit
referred to in the following clause (i), subject to the following conditions:
(i) the irrevocable deposit, in trust, of cash or U.S. Government Obligations
(or a combination thereof) which through the payment of interest and principal
thereof in accordance with their terms will provide cash in an amount sufficient
to pay the principal and interest and premium, if any, on the outstanding Senior
Debt Securities of such series and any mandatory sinking fund payments, in each
case, on the stated maturity of such payments in accordance with the terms of
the Senior Indenture and the outstanding Senior Debt Securities of such series
or on any Redemption Date established pursuant to clause (iii) below, (ii) El
Paso Energy's receipt of an Opinion of Counsel based on the fact that
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(A) El Paso Energy has received from, or there has been published by, the
Internal Revenue Service a ruling, or (B) since the date of the Senior
Indenture, there has been a change in the applicable federal income tax law, in
either case, to the effect that, and confirming that, the holders of the Senior
Debt Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and defeasance and will be subject to
federal income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit and defeasance had not
occurred, (iii) if the Senior Debt Securities are to be redeemed prior to Stated
Maturity (other than from mandatory sinking fund payments or analogous
payments), notice of such redemption shall have been duly given pursuant to the
Senior Indenture or provision therefor satisfactory to the Senior Debt Trustee
shall have been made, (iv) no Event of Default or event which with notice or
lapse of time or both would become an Event of Default will have occurred and be
continuing on the date of such deposit, and (v) El Paso Energy's delivery to the
Senior Debt Trustee of an Officer's Certificate and an Opinion of Counsel, each
stating that the conditions precedent under the Senior Indenture have been
complied with.
Under the Senior Indenture, El Paso Energy also may discharge its
obligations referred to above under the captions "-- Certain Covenants" and
"-- Consolidation, Merger and Sale of Assets" included in this Prospectus, as
well as certain of its obligations relating to reporting obligations under the
Senior Indenture, in respect of any series of Senior Debt Securities on the 91st
day following the deposit referred to in clause (i) in the immediately preceding
paragraph, subject to satisfaction of the conditions described in clauses (i),
(iii), (iv) and (v) in the immediately preceding paragraph with respect to such
series of Senior Debt Securities and the delivery of an Opinion of Counsel
confirming that the holders of the Senior Debt Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such deposit
and covenant defeasance and will be subject to federal income tax on the same
amount and in the same manner and at the same times, as would have been the case
if such deposit and covenant defeasance had not occurred.
CHANGES IN CONTROL AND HIGHLY LEVERAGED TRANSACTIONS
The Senior Indenture does not contain provisions requiring redemption of
the Senior Debt Securities issued thereunder, or adjustment to any terms of such
Senior Debt Securities, upon any change in control of El Paso Energy.
Other than the limitations on Liens and the restriction on Sale-Leaseback
Transactions described above under the caption "-- Certain Covenants" included
in this Prospectus, the Senior Indenture does not contain any covenant or other
provisions designed to afford holders of the Senior Debt Securities issued
thereunder protection in the event of a highly leveraged transaction involving
El Paso Energy.
MODIFICATION OF THE SENIOR INDENTURE
The Senior Indenture provides that El Paso Energy and the Senior Debt
Trustee may enter into supplemental indentures without the consent of the
holders of Senior Debt Securities issued thereunder to: (a) secure any of such
Senior Debt Securities; (b) evidence the succession of another Person to El Paso
Energy under the Senior Indenture and the Senior Debt Securities and the
assumption by such successor Person of the obligations of El Paso Energy
thereunder; (c) add covenants and Events of Default for the benefit of the
holders of all or any series of such Senior Debt Securities or to surrender any
right or power conferred by the Senior Indenture upon El Paso Energy; (d) add
to, change or eliminate any of the provisions of the Senior Indenture, provided
that any such addition, change or elimination shall become effective only after
there are no such Senior Debt Securities of any series entitled to the benefit
of such provision outstanding; (e) establish the forms or terms of the Senior
Debt Securities of any series issued thereunder; (f) cure any ambiguity or
correct any inconsistency in the Senior Indenture; (g) evidence the acceptance
of appointment by a successor Senior Debt Trustee; and (h) qualify the Senior
Indenture under the Trust Indenture Act.
The Senior Indenture also contains provisions permitting El Paso Energy and
the Senior Debt Trustee, with the consent of the holders of a majority in
aggregate principal amount of all outstanding Senior Debt Securities affected by
such supplemental Senior Indenture (voting as one class), to add any provisions
to, or
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change in any manner or eliminate any of the provisions of, the Senior
Indenture, or modify in any manner the rights of the holders of such Senior Debt
Securities; provided that El Paso Energy and the Senior Debt Trustee may not,
without the consent of the holder of each outstanding Senior Debt Security
affected thereby, (a) change the stated maturity of the principal of or any
installment of principal of or interest, if any, on, any Senior Debt Security,
or reduce the principal amount thereof or premium, if any, on or the rate of
interest thereon, (b) reduce the percentage in principal amount of Senior Debt
Securities required for any such supplemental Senior Indenture or for any waiver
provided for in the Senior Indenture, (c) change El Paso Energy's obligation to
maintain an office or agency for payment of Senior Debt Securities and the other
matters specified therein, or (d) modify any of the provisions of the Senior
Indenture relating to the execution of supplemental indentures with the consent
of holders of Senior Debt Securities which are discussed in this paragraph or
modify any provisions relating to the waiver by holders of past defaults and
certain covenants, except to increase any required percentage or to provide that
certain other provisions of the Senior Indenture cannot be modified or waived
without the consent of the holder of each outstanding Senior Debt Security
affected thereby.
NO PERSONAL LIABILITY OF OFFICERS, DIRECTORS, EMPLOYEES OR STOCKHOLDERS
No director, officer, employee or stockholder, as such, of El Paso Energy
or any of its affiliates shall have any personal liability in respect of the
obligations of El Paso Energy under the Senior Indenture or the Senior Debt
Securities by reason of his, her or its status as such.
APPLICABLE LAW
The Senior Indenture is, and the Senior Debt Securities offered hereby will
be, governed by, and construed in accordance with, the laws of the State of New
York.
CONCERNING THE SENIOR DEBT TRUSTEE
The Senior Indenture provides that, except during the continuance of an
Event of Default, the Senior Debt Trustee will perform only such duties as are
specifically set forth in the Senior Indenture. If an Event of Default has
occurred and is continuing, the Senior Debt Trustee will use the same degree of
care and skill in its exercise of the rights and powers vested in it by the
Senior Indenture as a prudent person would exercise under the circumstances in
the conduct of such person's own affairs.
The Senior Indenture contains limitations on the rights of the Senior Debt
Trustee, should it become a creditor of El Paso Energy, to obtain payment of
claims in certain cases or to realize on certain property received by it in
respect of such claims, as security or otherwise. The Senior Debt Trustee is
permitted to engage in other transactions; provided, however, that if it
acquires any conflicting interest, it must eliminate such conflict or resign.
The Chase Manhattan Bank, a New York banking corporation, is the Senior
Debt Trustee under the Senior Indenture, and is also the Subordinated Debt
Trustee (as defined below) under the Subordinated Debt Indenture (as defined
below). El Paso Energy maintains banking and other commercial relationships with
The Chase Manhattan Bank in the ordinary course of business.
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DESCRIPTION OF THE SUBORDINATED DEBT SECURITIES
Subordinated Debt Securities may be issued from time to time in one or more
series under an indenture (the "Subordinated Indenture"), to be entered into
between the Company and The Chase Manhattan Bank, as Trustee (the "Subordinated
Debt Trustee"), the form of which is filed as an exhibit to the Registration
Statement of which this Prospectus is a part. The terms of the Subordinated Debt
Securities will include those stated in the Subordinated Indenture and those
made part of the Subordinated Indenture by reference to the Trust Indenture Act.
The Subordinated Debt Securities are subject to all such terms, and holders of
Subordinated Debt Securities are referred to the Subordinated Indenture and the
Trust Indenture Act for those terms.
The statements set forth below in this section are brief summaries of
certain provisions contained in the Subordinated Indenture, do not purport to be
complete and are subject in all respects to the provisions of, and are qualified
in their entirety by reference to, the Subordinated Indenture, including the
definitions of certain terms therein, and the Trust Indenture Act. Capitalized
terms used in this section and not otherwise defined in this section have the
respective meanings assigned to them in the Subordinated Indenture.
GENERAL
The Subordinated Debt Securities will be unsecured, subordinated
obligations of the Company. The Subordinated Indenture does not limit the
aggregate principal amount of Subordinated Debt Securities which may be issued
thereunder and provides that the Subordinated Debt Securities may be issued from
time to time in one or more series. The Subordinated Debt Securities are
issuable in one or more series pursuant to an Subordinated Indenture
supplemental to the Subordinated Indenture or a resolution of the Company's
Board of Directors or a special committee appointed thereby (each, a
"Supplemental Subordinated Indenture").
In the event Subordinated Debt Securities are issued to an EPE Trust or a
trustee of such trust in connection with the issuance of Trust Securities by
such EPE Trust, such Subordinated Debt Securities subsequently may be
distributed pro rata to the holders of such Trust Securities in connection with
the dissolution of such EPE Trust upon the occurrence of certain events
described in the Prospectus Supplement relating to such Trust Securities. Only
one series of Subordinated Debt Securities will be issued to an EPE Trust or a
trustee of such trust in connection with the issuance of Trust Securities by
such EPE Trust.
Reference is made to the Prospectus Supplement relating to the particular
Subordinated Debt Securities being offered thereby for the following terms: (a)
the designation of such Subordinated Debt Securities; (b) the aggregate
principal amount of such Subordinated Debt Securities; (c) the percentage of
their principal amount at which such Subordinated Debt Securities will be
issued; (d) the date or dates on which such Subordinated Debt Securities will
mature and the right, if any, to extend such date or dates; (e) the rate or
rates, if any, per annum, at which such Subordinated Debt Securities will bear
interest, or the method of determination of such rate or rates; (f) the date or
dates from which such interest shall accrue, the interest payment dates on which
such interest will be payable or the manner of determination of such interest
payment dates and the record dates for the determination of holders to whom
interest is payable on any such interest payment dates; (g) the right, if any,
to extend the interest payment periods and the duration of such extension; (h)
provisions for a sinking purchase or other analogous fund, if any; (i) the
period or periods, if any, within which, the price or prices of which, and the
terms and conditions upon which such Subordinated Debt Securities may be
redeemed, in whole or in part, at the option of the Company or the holder; (j)
the form of such Subordinated Debt Securities; (k) provisions regarding
convertibility or exchangeability for capital stock of El Paso Energy (if any);
and (l) any other terms not inconsistent with the Subordinated Indenture.
Principal, premium, if any, and interest, if any, will be payable, and the
Subordinated Debt Securities offered hereby will be transferable, at the
corporate trust office of the Subordinated Debt Trustee in New York, New York,
provided that payment of interest, if any, may be made at the option of the
Company by check mailed to the address of the person entitled thereto as it
appears in the Security Register, or by transfer to an account maintained by the
person entitled thereto, provided that proper wire transfer instructions have
been received by the Company prior to the Record Date.
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If any Subordinated Debt Securities offered hereby are sold for foreign
currencies or foreign currency units or if the principal of and premium, if any,
or interest, if any, on any series of Subordinated Debt Securities is payable in
foreign currencies or foreign currency units, the restrictions, elections, tax
consequences, specific terms and other information with respect to such issue of
Subordinated Debt Securities and such currencies and currency units will be set
forth in the Prospectus Supplement relating thereto.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Subordinated Debt Securities offered hereby will be issued only in fully
registered form without coupons and in denominations of $1,000 or any integral
multiple thereof. The Subordinated Debt Securities of a series may be issuable
in the form of one or more global certificates, which will be denominated in an
amount equal to all or a portion of the aggregate principal amount of such
Subordinated Debt Securities. See "-- Global Subordinated Debt Securities."
One or more series of Subordinated Debt Securities offered hereby may be
sold at a substantial discount below their stated principal amount, bearing no
interest or interest at a rate that at the time of issuance is below market
rates. The federal income tax consequences and special considerations applicable
to any such series of Subordinated Debt Securities will be described generally
in the Prospectus Supplement relating thereto.
FORM, EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
No service charge will be made for any transfer or exchange of the
Subordinated Debt Securities, but the Company or the Subordinated Debt Trustee
may require payment of a sum sufficient to cover any tax or other government
charge payable in connection therewith. Where Subordinated Debt Securities of
any series are issued in bearer form, the special restrictions and
considerations, including special offering restrictions and special U.S. federal
income tax considerations, applicable to any such Subordinated Debt Securities
and to payment on and transfer and exchange of such Subordinated Debt Securities
will be described in the applicable Prospectus Supplement. Bearer Subordinated
Debt Securities will be transferrable by delivery.
Unless otherwise provided in the applicable Prospectus Supplement,
principal and premium, if any, or interest, if any, will be payable and the
Subordinated Debt Securities may be surrendered for payment or transferred at
the offices of the Subordinated Debt Trustee as paying and authenticating agent,
provided that payment of interest on registered securities may be made at the
option of the Company by check mailed to the address of the person entitled
thereto as it appears in the Security Register, or by transfer to an account
maintained by the person entitled thereto, provided that the proper wire
transfer instructions have been received by the Company prior to the Record
Date. Payment of Subordinated Debt Securities in bearer form will be made at
such paying agencies outside of the United States as the Company may appoint.
GLOBAL SUBORDINATED DEBT SECURITIES
The Subordinated Debt Securities of a series may be issued in whole or in
part in the form of one or more global certificate(s) that will be deposited
with, or on behalf of, a depositary (the "Subordinated Depositary"), or its
nominee, identified in the Prospectus Supplement relating to such series. In
such a case, one or more global certificate(s) will be issued in a denomination
or aggregate denomination equal to the portion of the aggregate principal amount
of outstanding Subordinated Debt Securities of the series to be represented by
such global certificate(s). Unless and until such global certificate(s)
exchanged in whole or in part for Subordinated Debt Securities in individually
certificated form, a global Subordinated Debt Security may not be transferred or
exchanged except as a whole to a nominee of the Subordinated Depositary for such
global Subordinated Debt Security, or by a nominee for the Subordinated
Depositary to the Subordinated Depositary or to a successor of the Subordinated
Depositary or a nominee of such successor, except in the circumstances described
in the applicable Prospectus Supplement.
The specific terms of the depositary arrangement with respect to a series
of Subordinated Debt Securities and the rights of, and limitations on, owners of
beneficial interests in a global Subordinated Debt Security representing all or
a portion of a series of Subordinated Debt Securities will be described in the
Prospectus Supplement relating to such series.
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SUBORDINATION
The Subordinated Debt Securities will be subordinated and junior in right
of payment to all other Debt of El Paso Energy, except for such Debt that is by
its terms subordinate to or pari passu with the Subordinated Debt Securities
("Senior Debt"), and such other indebtedness of the Company to the extent set
forth in the applicable Prospectus Supplement.
CERTAIN COVENANTS
If Subordinated Debt Securities are issued to an EPE Trust or a Trustee of
such trust in connection with the issuance of Trust Securities by such EPE Trust
and (i) there shall have occurred any event that would constitute an Event of
Default (as defined herein), (ii) the Company shall be in default with respect
to its payment of any obligations under the related Trust Guarantee or the
guarantee of the Trust Common Securities (together with the Trust Guarantee, the
"Guarantees") or (iii) the Company shall have given notice of its election to
defer payments of interest on such Subordinated Debt Securities by extending the
interest payment period as provided in the Subordinated Indenture and such
period, or any extension thereof, shall be continuing, then the Company will be
subject to certain restrictions regarding (a) the declaration or payment of
dividends on, and the making of guarantee payments with respect to, any of its
capital stock; and (b) the making of any payment of interest, principal or
premium, if any, on or the repayment, repurchase or redemption of any debt
securities (including guarantees) issued by the Company which rank pari passu
with or junior to such Subordinated Debt Securities. Such restrictions will be
more fully described in the Prospectus Supplement applicable to such
Subordinated Debt Securities.
In the event Subordinated Debt Securities are issued to an EPE Trust or a
Trustee of such trust in connection with the issuance of Trust Securities of
such EPE Trust, for so long as such Trust Securities remain outstanding, the
Company will covenant in the Declaration, the Guarantees or the indenture
supplemental to the Subordinated Debt Indenture with respect to such EPE Trust
(i) to directly or indirectly maintain 100% ownership of the Common Securities
of such EPE Trust; provided, however, that any permitted successor of the
Company under the Subordinated Indenture may succeed to the Company's ownership
of such Trust Common Securities and (ii) not to voluntarily terminate, wind-up
or liquidate such EPE Trust, except in connection with (a) the distribution of
Subordinated Debt Securities to the holders of Trust Securities in liquidation
of such EPE Trust, (b) the redemption of all of the Trust Securities of such EPE
Trust or (c) certain mergers, consolidations or amalgamations, each as permitted
by the Declaration of such EPE Trust. The Company will also covenant to use its
commercially reasonable efforts, consistent with the terms and provisions of the
Declaration of such EPE Trust, to cause such EPE Trust to remain classified as a
grantor trust and not taxable as a corporation for U.S. federal income tax
purposes.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Subordinated Indenture provides that El Paso Energy may, without the
consent of the Subordinated Debt Trustee or the holders of any Subordinated Debt
Securities issued thereunder, consolidate or merge with, or sell, lease or
transfer its properties and assets as, or substantially as, an entirety to, any
Person, provided that (i) either El Paso Energy is the surviving entity or such
successor Person expressly assumes or becomes a co-obligor jointly and severally
liable with respect to the due and punctual payment of the principal of, and any
premium and interest on, all the Subordinated Debt Securities and the
performance or observance of every covenant and condition of the Subordinated
Indenture on the part of El Paso Energy to be performed or observed, (ii)
immediately after giving effect to the transaction, no Default or Event of
Default exists, and (iii) El Paso Energy has delivered the Officer's Certificate
and Opinion of Counsel required by the Subordinated Indenture. Any such
successor Person shall succeed to and be substituted for, and may exercise every
right and power of, El Paso Energy under the Subordinated Indenture with the
same effect as if it had been named a party in the Subordinated Indenture and El
Paso Energy shall, except in the case of a lease, be released and discharged
from all its obligations under the Subordinated Debt Securities and the
Subordinated Indenture. Notwithstanding the foregoing, the predecessor Person
may, in the alternative, elect not to be so released from such obligations,
provided that the predecessor Person and the successor Person shall agree,
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pursuant to a supplemental Subordinated Indenture, to be co-obligors jointly and
severally with respect to all such obligations.
EVENTS OF DEFAULT
An "Event of Default" will occur under the Subordinated Indenture with
respect to Subordinated Debt Securities of a particular series issued thereunder
upon: (a) default in the payment of the principal of, or premium, if any, on,
any Subordinated Debt Security of such series at its maturity (whether or not
prohibited by the subordination provisions thereof); (b) default in the payment
of any interest on any Subordinated Debt Security of such series when it becomes
due and payable and continuance of such default for a period of 30 days (whether
or not prohibited by the subordination provisions thereof); (c) default in the
performance, or breach, of any term, covenant or warranty contained in the
Subordinated Indenture with respect to such series for a period of 60 days upon
giving written notice as provided in the Subordinated Indenture; or (d) the
occurrence of certain events of bankruptcy.
The Subordinated Indenture provides that if an Event of Default with
respect to a series of Subordinated Debt Securities issued thereunder shall have
occurred and be continuing, either the Subordinated Debt Trustee or the holders
of not less than 25% in principal amount of Subordinated Debt Securities of such
series then outstanding may declare the principal amount of all Subordinated
Debt Securities of such series to be due and payable immediately upon giving
written notice as provided in the Subordinated Indenture. The Subordinated
Indenture provides that the holders of a majority in principal amount of
Subordinated Debt Securities then outstanding of such series may rescind and
annul such declaration and its consequences under certain circumstances.
The holders of a majority in principal amount of Subordinated Debt
Securities of a series then outstanding may waive past defaults under the
Subordinated Indenture with respect to such series and its consequences (except
a continuing default in the payment of principal of or premium, if any, or
interest on any series of Subordinated Debt Securities or a default in respect
of any covenant or provision of the Subordinated Indenture which cannot be
modified or amended by a supplemental Subordinated Indenture without the consent
of the holder of each outstanding Subordinated Debt Security affected thereby).
Pursuant to the Subordinated Indenture, the holders of a majority in
aggregate principal amount of all affected series of Subordinated Debt
Securities then outstanding may direct with respect to such series the time,
method, and place of conducting any proceeding for any remedy available to the
Subordinated Debt Trustee or exercising any trust or power conferred on the
Subordinated Debt Trustee, provided that such direction shall not be in conflict
with any rule of law or the Subordinated Indenture. Before proceeding to
exercise any right or power under the Subordinated Indenture at the direction of
any holders, the Subordinated Debt Trustee shall be entitled to receive from
such holders reasonable security or indemnity against the costs, expenses, and
liabilities which might be incurred by it in compliance with any such direction.
Under the terms of the Subordinated Indenture, El Paso Energy is required
to furnish to the Subordinated Debt Trustee annually an Officer's Certificate to
the effect that to the best of such officer's knowledge, El Paso Energy is not
in default in the performance and observance of the terms, provisions and
conditions of the Subordinated Indenture or, if such officer has knowledge that
El Paso Energy is in default, specifying such default. The Subordinated
Indenture requires the Subordinated Debt Trustee to give to all holders of
Subordinated Debt Securities outstanding thereunder notice of any Default by El
Paso Energy in the manner provided in the Subordinated Indenture, unless such
Default shall have been cured or waived; however, except in the case of a
default in the payment of principal of and premium, if any, or interest, if any,
on any Subordinated Debt Securities outstanding thereunder, the Subordinated
Debt Trustee is entitled to withhold such notice in the event that the board of
directors, the executive committee, or a trust committee of directors or certain
officers of the Subordinated Debt Trustee in good faith determine that
withholding such notice is in the interest of the holders of such outstanding
Subordinated Debt Securities.
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CHANGE IN CONTROL AND HIGHLY LEVERAGED TRANSACTIONS
The Subordinated Indenture contains no covenants or other provisions to
afford protection to holders of the Subordinated Debt Securities in the event of
a highly leveraged transaction or a change in control of the Company.
MODIFICATION OF THE SUBORDINATED INDENTURE
The Subordinated Indenture provides that El Paso Energy and the
Subordinated Debt Trustee may enter into supplemental indentures without the
consent of the holders of Subordinated Debt Securities issued thereunder to: (a)
evidence the succession of another Person to El Paso Energy under the
Subordinated Indenture and the Subordinated Debt Securities and the assumption
by such successor Person of the obligations of El Paso Energy thereunder; (b)
evidence another Person's becoming a co-obligor with respect to the obligations
of El Paso Energy under the Subordinated Indenture and the Subordinated Debt
Securities; (c) add covenants and Events of Default for the benefit of the
holders of all or any series of such Subordinated Debt Securities or to
surrender any right or power conferred by the Subordinated Indenture upon El
Paso Energy; (d) add to, change or eliminate any of the provisions of the
Subordinated Indenture, provided that any such addition, change or elimination
shall become effective only after there are no such Subordinated Debt Securities
of any series entitled to the benefit of such provision outstanding; (e)
establish the forms or terms of the Subordinated Debt Securities of any series
issued thereunder; (f) cure any ambiguity or correct any inconsistency in the
Subordinated Indenture; (g) evidence the acceptance of appointment by a
successor (including as a co-obligor) Subordinated Debt Trustee; and (h) qualify
the Subordinated Indenture under the Trust Indenture Act.
The Subordinated Indenture also provides that El Paso Energy and the
Subordinated Debt Trustee, with the consent of the holders of a majority in
aggregate principal amount of all outstanding Subordinated Debt Securities of
all series affected by such modification (voting as one class), to modify the
Subordinated Indenture or the rights of the holders of such Subordinated Debt
Securities; provided that El Paso Energy and the Subordinated Debt Trustee may
not, without the consent of the holder of each outstanding Subordinated Debt
Security affected thereby: (a) change the stated maturity of the principal of or
any installment of principal of or interest, if any, on, any Subordinated Debt
Security, or reduce the principal amount thereof or premium, if any, on or the
rate of interest thereon; (b) reduce the percentage in principal amount of
Subordinated Debt Securities required for any such supplemental Subordinated
Indenture or for any waiver provided for in the Subordinated Indenture; (c)
change El Paso Energy's obligation to maintain an office or agency for payment
of Subordinated Debt Securities and the other matters specified therein; or (d)
modify any of the provisions of the Subordinated Indenture relating to the
execution of supplemental indentures with the consent of holders of Subordinated
Debt Securities which are discussed in this paragraph or modify any provisions
relating to the waiver by holders of past defaults and certain covenants, except
to increase any required percentage or to provide that certain other provisions
of the Subordinated Indenture cannot be modified or waived without the consent
of the holder of each outstanding Subordinated Debt Security affected thereby.
SATISFACTION AND DISCHARGE; LEGAL AND COVENANT DEFEASANCE
Under the terms of the Subordinated Indenture, El Paso Energy may satisfy
and discharge certain obligations to holders of Subordinated Debt Securities of
any series which have not already been delivered to the Subordinated Debt
Trustee for cancellation and which have either become due and payable or are by
their terms due and payable within one year or are to be called for redemption
within one year by (i) depositing or causing to be deposited with the
Subordinated Debt Trustee funds in an amount sufficient to pay the principal and
any premium and interest to the date of such deposit (in case of Subordinated
Debt Securities of such series which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be, (ii) paying or causing
to be paid all other sums payable under the Subordinated Indenture with respect
to such Subordinated Debt Securities, and (iii) delivering to the Subordinated
Debt Trustee an Officer's Certificate and Opinion of Counsel relating to such
satisfaction and discharge.
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The Subordinated Indenture also provides that El Paso Energy and any other
obligor, if any, will be discharged from any and all obligations in respect of
any series of Subordinated Debt Securities issued thereunder (excluding,
however, certain obligations, such as the obligation to register the transfer or
exchange of such outstanding Subordinated Debt Securities of such series, to
replace stolen, lost, mutilated or destroyed certificates, to pay principal and
interest on the original stated due dates or specified redemption date, to make
any sinking fund payments, and to maintain paying agencies) on the 91st day
following the deposit referred to in the following clause (i), subject to the
following conditions: (i) the irrevocable deposit, in trust, of cash or U.S.
Government Obligations (or a combination thereof) which through the payment of
interest and principal thereof in accordance with their terms will provide cash
in an amount sufficient to pay the principal and interest and premium, if any,
on the outstanding Subordinated Debt Securities of such series and any mandatory
sinking fund payments, in each case, on the stated maturity of such payments in
accordance with the terms of the Subordinated Indenture and the outstanding
Subordinated Debt Securities of such series or on any Redemption Date
established pursuant to clause (iii) below; (ii) El Paso Energy's receipt of an
Opinion of Counsel based on the fact that (A) El Paso Energy has received from,
or there has been published by, the Internal Revenue Service a ruling, or (B)
since the date of the Subordinated Indenture, there has been a change in the
applicable federal income tax law, in either case, to the effect that, and
confirming that, the holders of the Subordinated Debt Securities will not
recognize income, gain or loss for federal income tax purposes as a result of
such deposit and defeasance and will be subject to federal income tax on the
same amount and in the same manner and at the same times, as would have been the
case if such deposit and defeasance had not occurred; (iii) if the Subordinated
Debt Securities are to be redeemed prior to Stated Maturity (other than from
mandatory sinking fund payments or analogous payments), notice of such
redemption shall have been duly given pursuant to the Subordinated Indenture or
provision therefor satisfactory to the Subordinated Debt Trustee shall have been
made; (iv) no Event of Default or event which with notice or lapse of time or
both would become an Event of Default will have occurred and be continuing on
the date of such deposit; and (v) El Paso Energy's delivery to the Subordinated
Debt Trustee of an Officer's Certificate and an Opinion of Counsel, each stating
that the conditions precedent under the Subordinated Indenture have been
complied with.
Under the Subordinated Indenture, El Paso Energy also may discharge its
obligations referred to above under the captions "-- Certain Covenants" and
"-- Consolidation, Merger and Sale of Assets" included in this Prospectus, as
well as certain of its obligations relating to reporting obligations under the
Subordinated Indenture, in respect of any series of Subordinated Debt Securities
on the 91st day following the deposit referred to in clause (i) in the
immediately preceding paragraph, subject to satisfaction of the conditions
described in clauses (i), (iii), (iv) and (v) in the immediately preceding
paragraph with respect to such series of Subordinated Debt Securities and the
delivery of an Opinion of Counsel confirming that the holders of the
Subordinated Debt Securities will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and covenant defeasance and will
be subject to federal income tax on the same amount and in the same manner and
at the same times, as would have been the case if such deposit and covenant
defeasance had not occurred.
NO PERSONAL LIABILITY OF OFFICERS, DIRECTORS, EMPLOYEES OR STOCKHOLDERS
No director, officer, employee or stockholder, as such, of El Paso Energy
or any of its affiliates shall have any personal liability in respect of the
obligations of El Paso Energy under the Subordinated Indenture or the
Subordinated Debt Securities by reason of his, her or its status as such.
APPLICABLE LAW
The Subordinated Indenture is, and the Subordinated Debt Securities offered
hereby will be, governed by, and construed in accordance with, the laws of the
State of New York.
CONCERNING THE SUBORDINATED DEBT TRUSTEE
The Subordinated Indenture provides that, except during the continuance of
an Event of Default, the Subordinated Debt Trustee will perform only such duties
as are specifically set forth in the Subordinated
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Indenture. If an Event of Default has occurred and is continuing, the
Subordinated Debt Trustee will use the same degree of care and skill in its
exercise of the rights and powers vested in it by the Subordinated Indenture as
a prudent person would exercise under the circumstances in the conduct of such
person's own affairs.
The Subordinated Indenture contains limitations on the rights of the
Subordinated Debt Trustee, should it become a creditor of El Paso Energy, to
obtain payment of claims in certain cases or to realize on certain property
received by it in respect of such claims, as security or otherwise. The
Subordinated Debt Trustee is permitted to engage in other transactions;
provided, however, that if it acquires any conflicting interest, it must
eliminate such conflict or resign.
The Chase Manhattan Bank, a New York banking corporation, is the
Subordinated Debt Trustee under the Subordinated Indenture, and is also the
Senior Debt Trustee under the Senior Indenture. El Paso Energy maintains banking
and other commercial relationships with The Chase Manhattan Bank in the ordinary
course of business.
DESCRIPTION OF CAPITAL STOCK OF THE COMPANY
The statements under this caption are brief summaries, do not purport to be
complete, and are subject to, and are qualified in their entirety by reference
to, the more complete descriptions contained in (a) El Paso Energy's Restated
Certificate of Incorporation, as amended (the "El Paso Energy Charter"), and the
Shareholder Rights Agreement, dated as of July 16, 1998, as amended, between El
Paso Energy and BankBoston, N.A., as Rights Agent (the "Shareholder Rights
Agreement"), copies of which are incorporated by reference as exhibits to the
Registration Statement of which this Prospectus is a part, and (b) the
certificate of designation relating to each series of Preferred Stock, which
will be filed with the Commission at, or prior to, the time of the offering of
such series of Preferred Stock.
GENERAL
El Paso Energy currently is authorized by the El Paso Energy Charter to
issue up to 275,000,000 shares of Common Stock and up to 25,000,000 shares of
Preferred Stock. As of July 31, 1998, there were issued and outstanding
119,864,487 shares of Common Stock and no shares of Preferred Stock.
COMMON STOCK
El Paso Energy currently is authorized by the El Paso Energy Charter to
issue up to 275,000,000 shares of Common Stock. The holders of Common Stock are
entitled to one vote for each share held of record on all matters submitted to a
vote of stockholders. Subject to preferences that may be applicable to any
outstanding Preferred Stock, holders of Common Stock are entitled to receive
ratably such dividends as may be declared by the Board of Directors of El Paso
Energy out of funds legally available therefor. In the event of a liquidation,
dissolution, or winding up of El Paso Energy, holders of Common Stock are
entitled to share ratably in all assets remaining after payment of liabilities
and liquidation preference of any outstanding Preferred Stock. Holders of Common
Stock have no preemptive rights and have no rights to convert their Common Stock
into any other securities. There are no redemption provisions with respect to
any shares of Common Stock. All of the outstanding shares of Common Stock are,
and the Common Stock offered hereby will be, upon issuance against full payment
of the purchase price therefor, fully paid and nonassessable.
The transfer agent and registrar for El Paso Energy's Common Stock is
BankBoston, N.A.
PREFERRED STOCK
El Paso Energy's Board of Directors, without any further action by the
stockholders of El Paso Energy, is authorized to issue up to 25,000,000 shares
of Preferred Stock, and to divide the Preferred Stock into one or more series,
and to fix by resolution or resolutions any of the designations, powers,
preferences and rights, and the qualifications, limitations, or restrictions of
the shares of each such series, including, but not limited to, dividend rates,
conversion rights, voting rights, terms of redemption and liquidation
preferences, and the number of shares constituting each such series. The
issuance of Preferred Stock may have the effect of
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delaying, deterring, or preventing a change in control of El Paso Energy.
Preferred Stock, upon issuance against full payment of the purchase price
therefor, will be fully paid and nonassessable. The specific terms of a
particular series of Preferred Stock will be described in the Prospectus
Supplement relating to that series. The description of Preferred Stock set forth
below and the description of the terms of the particular series of Preferred
Stock set forth in the related Prospectus Supplement do not purport to be
complete and are qualified in their entirety by reference to the certificate of
designation relating to the particular series of Preferred Stock.
The designations, powers, preferences and rights, and the qualifications,
limitations, or restrictions of the Preferred Stock of each series will be fixed
by the certificate of designation relating to such series. The Prospectus
Supplement relating to each series will specify the terms of the Preferred Stock
as follows:
(a) The maximum number of shares to constitute such series and the
distinctive designation thereof;
(b) The annual dividend rate, if any, on shares of such series,
whether such rate is fixed or variable or both, the date or dates from
which dividends will begin to accrue or accumulate, and whether dividends
will be cumulative;
(c) The price at which, and the terms and conditions on which, the
shares of such series may be redeemed, including the time during which
shares of such series may be redeemed and any accumulated dividends thereon
that the holders of shares of such series shall be entitled to receive upon
the redemption thereof;
(d) The liquidation preference, if any, and any accumulated dividends
thereon, that the holders of shares of such series shall be entitled to
receive upon the liquidation, dissolution, or winding up of the affairs of
El Paso Energy;
(e) Whether or not the shares of such series will be subject to
operation of a retirement or sinking fund, and, if so, the extent and
manner in which any such fund shall be applied to the purchase or
redemption of the shares of such series for retirement or for other
corporate purposes, and the terms and provisions relating to the operation
of such fund;
(f) The terms and conditions, if any, on which the shares of such
series shall be convertible into, or exchangeable for, debt securities,
shares of any other class or classes of capital stock of El Paso Energy, or
any series of any other class or classes, or of any other series of the
same class, including the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting the same;
(g) The voting rights, if any, on the shares of such series; and
(h) Any or all other preferences and relative, participating,
operational, or other special rights, qualifications, limitations, or
restrictions thereof
The federal income tax consequences and special considerations applicable
to any such series of Preferred Stock will be generally described in the
Prospectus Supplement relating thereto.
As of the date of this Prospectus, no shares of Preferred Stock are
outstanding. Pursuant to the Shareholder Rights Agreement (as described below),
the Board of Directors of El Paso Energy has designated the Series A Preferred
Stock (as defined below).
SHAREHOLDER RIGHTS AGREEMENT
In July 1992, EPG's Board of Directors declared a dividend distribution of
one right (an "EPG Right") for each share of EPG's common stock, par value $3.00
per share, then outstanding. In July 1997, EPG's Board amended EPG's
shareholders rights agreement pursuant to which the EPG Rights were issued. All
shares of EPG common stock issued subsequent to July 1992 also included these
EPG Rights. In connection with the holding company reorganization effected as of
August 1, 1998, each one-half EPG Right then associated with each outstanding
share of EPG common stock was converted into one right (a "Right") issued under
the Shareholder Rights Agreement. All shares of common stock issued after August
1, 1998, will
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also include a Right. Under certain conditions, each Right may be exercised to
purchase from El Paso Energy one two-hundredth of a share of a series of El Paso
Energy's Preferred Stock, designated as Series A Junior Participating Preferred
Stock, par value $.01 per share (the "Series A Preferred Stock"), at a price of
$75 per one two-hundredth of a share, subject to adjustment.
The El Paso Energy Charter provides that the holders of Series A Preferred
Stock are entitled to 200 votes per share on all matters submitted to a vote of
the stockholders of El Paso Energy, subject to adjustment. In addition, during
any period that dividends on the Series A Preferred Stock are in arrears in an
amount equal to six quarterly dividend payments, the holders of Series A
Preferred Stock will have the right to vote together as a class to elect two
directors of El Paso Energy as described above.
The Rights are exercisable only if, without the prior consent of El Paso
Energy's Board of Directors, a person or group acquires or obtains the right to
acquire beneficial ownership of 15% or more of the voting power of all
outstanding voting securities of El Paso Energy or commences or announces a
tender or exchange offer, after consummation of which such person or group would
beneficially own 15% or more of El Paso Energy's voting securities. If, after
the Rights become exercisable, El Paso Energy is involved in a merger or other
business combination transaction in which its Common Stock is exchanged or
changed, or it sells 50% or more of its assets or earning power, each Right will
entitle the holder thereof to purchase, at the Right's then-current exercise
price, common stock of the acquiring company having a value of twice the
exercise price of the Right. If a person becomes the beneficial owner of
securities having 15% or more of the voting power of all then-outstanding voting
securities of El Paso Energy, or if, during any period of such ownership, there
shall be any reclassification of securities or recapitalization of El Paso
Energy, or any merger or consolidation of El Paso Energy with any of its
subsidiaries or any other transaction or series of transactions which has the
effect, directly or indirectly, of increasing by more than 1% the proportionate
share of the outstanding shares of any class of equity securities of El Paso
Energy or any of its subsidiaries which is directly or indirectly owned by such
person, then for a 60-day period thereafter each Right not owned by such person
will entitle the holder thereof to purchase, at the Right's then-current
exercise price, shares of Common Stock (or in certain circumstances other equity
securities of El Paso Energy with at least the same economic value as the Common
Stock) having a market value of twice the Right's then-current exercise price.
The Rights, which have no voting rights, expire no later than July 7, 2002. The
Rights may be redeemed by El Paso Energy under certain circumstances prior to
their expiration date at a purchase price of $.01 per Right. It is possible that
the existence of the Rights may have the effect of delaying, deterring or
preventing a takeover of El Paso Energy.
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
El Paso Energy is subject to Section 203 of the Delaware General
Corporation Law ("Section 203") which restricts certain transactions and
business combinations between a corporation and an interested stockholder
(defined in Section 203, generally, as a person owning 15% or more of a
corporation's outstanding voting stock) for a period of three years from the
time such person becomes an interested stockholder. Subject to certain
exceptions, unless the transaction is approved by the board of directors and the
holders of at least 66 2/3% of the outstanding voting stock of the corporation
(excluding voting stock held by the interested stockholder), Section 203
prohibits certain business transactions, such as a merger with, disposition of
assets to, or receipt of disproportionate financial benefits by the interested
stockholder, or any other transaction that would increase the interested
stockholder's proportionate ownership of any class or series of the
corporation's stock for a period of three years after such person becomes an
interested stockholder. The statutory ban does not apply if, upon consummation
of the transaction in which any person becomes an interested stockholder, the
interested stockholder owns at least 85% of the outstanding voting stock of the
corporation (excluding voting stock held by persons who are both directors and
officers or by certain employee stock plans) or if either the proposed
transaction or the transaction by which the interested stockholder became such
is approved by the board of directors of the corporation prior to the time such
stockholder becomes an interested stockholder.
EL PASO ENERGY'S RESTATED CERTIFICATE OF INCORPORATION
The El Paso Energy Charter contains provisions applicable to a merger,
consolidation, asset sale, liquidation, recapitalization, or certain other
business transactions, including the issuance of stock of El Paso
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<PAGE> 25
Energy ("Business Combinations"). The El Paso Energy Charter requires the
affirmative vote of 51% or more of the voting stock of El Paso Energy, excluding
any voting stock held by an interested stockholder (defined in the El Paso
Energy Charter as any person who owns 10% or more of the voting stock and
certain defined affiliates), with respect to all Business Combinations involving
the interested stockholder, unless directors who served as such prior to the
time the interested stockholder became an interested stockholder determine by a
two-thirds vote that (i) the proposed consideration meets certain minimum price
criteria, or (ii)(A) the interested stockholder holds 80% or more of the voting
stock and (B) the interested stockholder has not received (other than
proportionately as a stockholder) the benefit of any financial assistance from
El Paso Energy, whether in anticipation of or in connection with such Business
Combination. To meet the minimum price criteria, all stockholders must receive
consideration or retain value per share after the transaction which is not less
than the price per share paid by the interested stockholder. The El Paso Energy
Charter also requires the dissemination to stockholders of a proxy or
information statement describing the Business Combination.
The El Paso Energy Charter also prohibits the taking of any action by
written stockholder consent in lieu of a meeting and the subsequent amendment of
the El Paso Energy Charter to repeal or alter the above provisions without the
affirmative vote of 51% of El Paso Energy's voting stock, excluding voting stock
held by any interested stockholder.
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<PAGE> 26
DESCRIPTION OF THE TRUST PREFERRED SECURITIES
Each EPE Trust may issue, from time to time, only one series of Trust
Preferred Securities having terms described in the Prospectus Supplement
relating thereto. The Declaration of each EPE Trust authorizes the
Administrative Trustees of such EPE Trust to issue on behalf of such EPE Trust
one series of Trust Preferred Securities. The Declaration will be qualified as
an indenture under the Trust Indenture Act. The Trust Preferred Securities will
have such terms, including distributions, redemption, voting, conversion,
exchange, liquidation rights and such other preferred, deferred or other special
rights or such restrictions as shall be set forth in the Declaration or made
part of the Declaration by the Trust Indenture Act. Reference is made to the
Prospectus Supplement relating to the Trust Preferred Securities of the EPE
Trust for specific terms, including: (a) the distinctive designation of such
Trust Preferred Securities; (b) the number of Trust Preferred Securities issued
by such EPE Trust; (c) the annual distribution rate (or method of determining
such rate) for Trust Preferred Securities issued by such EPE Trust and the date
or dates upon which such distributions shall be payable; provided, however, that
distributions on such Trust Preferred Securities shall be payable on a quarterly
basis to holders of such Trust Preferred Securities as of a record date in each
quarter during which such Trust Preferred Securities are outstanding; (d)
whether distributions on Trust Preferred Securities issued by such EPE Trust
shall be cumulative, and, in the case of Trust Preferred Securities having such
cumulative distribution rights, the date or dates or method of determining the
date or dates from which distributions on Trust Preferred Securities issued by
such EPE Trust shall be cumulative; (e) the amount or amounts which shall be
paid out of the assets of such EPE Trust to the holders of Trust Preferred
Securities of such EPE Trust upon voluntary or involuntary dissolution,
winding-up or termination of such EPE Trust; (f) the obligation, if any, of such
EPE Trust to purchase or redeem Trust Preferred Securities issued by such EPE
Trust and the price or prices at which, the period or periods within which, and
the terms and conditions upon which, Trust Preferred Securities issued by such
EPE Trust shall be purchased or redeemed, in whole or in part, pursuant to such
obligation; (g) the voting rights, if any, of Trust Preferred Securities issued
by such EPE Trust in addition to those required by law, including the number of
votes per Trust Preferred Security and any requirement for the approval by the
holders of Trust Preferred Securities, or of Trust Preferred Securities issued
by one or more EPE Trusts, or of both, as a condition to specified action or
amendments to the Declaration of such EPE Trust; (h) the terms and conditions,
if any, upon which the assets of such EPE Trust may be distributed to holders of
Trust Preferred Securities; (i) provisions regarding convertibility or
exchangeability of the Trust Preferred Securities for capital stock of El Paso
Energy; (j) if applicable, any securities exchange upon which the Trust
Preferred Securities shall be listed; and (k) any other relevant rights,
preferences, privileges, limitations or restrictions of Trust Preferred
Securities issued by such EPE Trust not inconsistent with the Declaration of
such EPE Trust or with applicable law. All Trust Preferred Securities offered
hereby will be guaranteed by the Company to the extent set forth below under
"Description of the Trust Guarantees." Any U.S. federal income tax
considerations applicable to any offering of Trust Preferred Securities will be
described in the Prospectus Supplement relating thereto.
In connection with the issuance of Trust Preferred Securities, each EPE
Trust will issue one series of Trust Common Securities. The Declaration of each
EPE Trust authorizes the Administrative Trustees of such trust to issue on
behalf of such EPE Trust one series of Trust Common Securities having such terms
including distributions, redemption, voting, liquidation rights or such
restrictions as shall be set forth therein. The terms of the Trust Common
Securities issued by an EPE Trust will be substantially identical to the terms
of the Trust Preferred Securities issued by such EPE Trust, and the Trust Common
Securities will rank pari passu, and payments will be made thereon pro rata,
with the Trust Preferred Securities except that, upon an event of default under
the Declaration, the rights of the holders of the Trust Common Securities to
payment in respect of distributions and payments upon liquidation, redemption
and otherwise will be subordinated to the rights of the holders of the Trust
Preferred Securities. Except in certain limited circumstances, the Trust Common
Securities will also carry the right to vote to appoint, remove or replace any
of the Trustees of an EPE Trust. All of the Trust Common Securities of each EPE
Trust will be directly or indirectly owned by the Company.
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<PAGE> 27
DESCRIPTION OF THE TRUST GUARANTEES
Set forth below is a summary of information concerning the Trust Guarantees
which will be executed and delivered by El Paso Energy from time to time for the
benefit of the holders of the Trust Preferred Securities. Each Trust Guarantee
will be qualified as an indenture under the Trust Indenture Act. The Chase
Manhattan Bank will act as indenture trustee under each Trust Guarantee (the
"Trust Guarantee Trustee"). The terms of each Trust Guarantee will be those set
forth in such Trust Guarantee and those made part of such Trust Guarantee by the
Trust Indenture Act. The summary does not purport to be complete and is subject
in all respects to the provisions of, and is qualified in its entirety by
reference to, the form of Trust Guarantee, which is filed as an exhibit to the
Registration Statement of which this Prospectus forms a part, and the Trust
Indenture Act. Each Trust Guarantee will be held by the Trust Guarantee Trustee
for the benefit of the holders of the Trust Preferred Securities of the
applicable EPE Trust.
GENERAL
Pursuant to each Trust Guarantee, El Paso Energy will irrevocably and
unconditionally agree, to the extent set forth therein, to pay in full, to the
holders of the Trust Preferred Securities issued by an EPE Trust, the Trust
Guarantee Payments (as defined herein) (except to the extent paid by such EPE
Trust), as and when due, regardless of any defense, right of set-off or
counterclaim which such EPE Trust may have or assert. The following payments
with respect to Trust Preferred Securities issued by an EPE Trust to the extent
not paid by such EPE Trust (the "Trust Guarantee Payments"), will be subject to
the Trust Guarantee thereon (without duplication): (i) any accrued and unpaid
distributions which are required to be paid on such Trust Preferred Securities,
to the extent such EPE Trust shall have funds available therefor; (ii) the
redemption price, including all accrued and unpaid distributions (the
"Redemption Price"), to the extent such EPE Trust has funds available therefor
with respect to any Trust Preferred Securities called for redemption by such EPE
Trust; and (iii) upon a voluntary or involuntary dissolution, winding-up or
termination of such EPE Trust (other than in connection with the distribution of
the assets of such EPE Trust to the holders of Trust Preferred Securities or the
redemption of all of the Trust Preferred Securities), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid distributions on
such Trust Preferred Securities to the date of payment, to the extent such EPE
Trust has funds available therefor and (b) the amount of assets of such EPE
Trust remaining available for distribution to holders of such Trust Preferred
Securities in liquidation of such EPE Trust. El Paso Energy's obligation to make
a Trust Guarantee Payment may be satisfied by direct payment of the required
amounts by the Company to the holders of Trust Preferred Securities or by
causing the applicable EPE Trust to pay such amounts to such holders.
Each Trust Guarantee will be a full and unconditional guarantee with
respect to the Trust Preferred Securities issued by the applicable EPE Trust,
but will not apply to any payment of distributions except to the extent such EPE
Trust shall have funds available therefor. If El Paso Energy does not make
interest payments on the Subordinated Debt Securities purchased by an EPE Trust,
such EPE Trust will not pay distributions on the Trust Preferred Securities
issued by such EPE Trust and will not have funds available therefor. See
"Description of the Subordinated Debt Securities -- Certain Covenants" included
in the Prospectus.
El Paso Energy has also agreed separately to irrevocably and
unconditionally guarantee the obligations of the EPE Trusts with respect to the
Trust Common Securities (the "Trust Common Securities Guarantees") to the same
extent as the Trust Guarantees, except that upon an event of default under the
Subordinated Indenture, holders of Trust Preferred Securities shall have
priority over holders of Trust Common Securities with respect to distributions
and payments on liquidation, redemption or otherwise.
CERTAIN COVENANTS
In each Trust Guarantee, El Paso Energy will covenant that, so long as any
Trust Preferred Securities issued by the applicable EPE Trust remain
outstanding, if there shall have occurred any event that would constitute an
event of default under such Trust Guarantee or the Declaration of such EPE
Trust, then (a) El Paso Energy shall not declare or pay any dividend on, make
any distributions with respect to, or redeem, purchase or make any liquidation
payment with respect to, any of its capital stock (other than
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<PAGE> 28
(i) purchases or acquisitions of shares of El Paso Energy Common Stock in
connection with the satisfaction by El Paso Energy of its obligations under any
employee benefit plans or the satisfaction by El Paso Energy of its obligations
pursuant to any contract or security requiring El Paso Energy to purchase shares
of Company Common Stock or, (ii) the purchase of fractional interests in shares
of Company capital stock as a result of a reclassification of Company capital
stock or the exchange or conversion of one class or series of Company capital
stock for another class or series of Company capital stock or make any guarantee
payments with respect to the foregoing and (b) El Paso Energy shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees) issued by El Paso Energy which
rank pari passu with or junior to the Subordinated Debt Securities.
MODIFICATION OF THE TRUST GUARANTEES; ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of Trust Preferred Securities (in which case no vote will be
required), each Trust Guarantee may be amended only with the prior approval of
the holders of not less than a majority in liquidation amount of the outstanding
Trust Preferred Securities issued by the applicable EPE Trust. The manner of
obtaining any such approval of holders of such Trust Preferred Securities will
be as set forth in an accompanying Prospectus Supplement. All guarantees and
agreements contained in a Trust Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of El Paso Energy and shall inure to the
benefit of the holders of the Trust Preferred Securities of the applicable EPE
Trust then outstanding.
TERMINATION
Each Trust Guarantee will terminate as to the Trust Preferred Securities
issued by the applicable EPE Trust upon the first to occur of (a) full payment
of the Redemption Price of all Trust Preferred Securities of such EPE Trust, (b)
distribution of the assets of such EPE Trust to the holders of the Trust
Preferred Securities of such EPE Trust, and (c) full payment of the amounts
payable upon liquidation of such EPE Trust in accordance with the Declaration of
such EPE Trust. Each Trust 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 issued by the applicable EPE Trust must restore payment of any sums
paid under such Trust Preferred Securities or such Trust Guarantee.
EVENTS OF DEFAULT
An event of default under a Trust Guarantee will occur upon the failure of
El Paso Energy to perform any of its payment or other obligations thereunder.
The holders of a majority in liquidation amount of the Trust Preferred
Securities relating to such Trust Guarantee have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trust Guarantee Trustee in respect of the Trust Guarantee or to direct the
exercise of any trust or power conferred upon the Trust Guarantee Trustee under
such Trust Preferred Securities. If the Trust Guarantee Trustee fails to enforce
such Trust Guarantee, any holder of Trust Preferred Securities relating to such
Trust Guarantee may institute a legal proceeding directly against El Paso Energy
to enforce the Trust Guarantee Trustee's rights under such Trust Guarantee,
without first instituting a legal proceeding against the relevant EPE Trust, the
Trust Guarantee Trustee or any other person or entity. Notwithstanding the
foregoing, if El Paso Energy has failed to make a guarantee payment, a holder of
Trust Preferred Securities may directly institute a proceeding against El Paso
Energy for enforcement of the Trust Guarantee for such payment. El Paso Energy
waives any right or remedy to require that any action be brought first against
such EPE Trust or any other person or entity before proceeding directly against
El Paso Energy.
STATUS OF THE TRUST GUARANTEES
The Trust Guarantees will constitute unsecured obligations of El Paso
Energy and will rank: (i) subordinate and junior in right of payment to all
other liabilities of El Paso Energy; (ii) pari passu with the most senior
preferred or preference stock now or hereafter issued by El Paso Energy and with
any guarantee
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<PAGE> 29
now or hereafter entered into by El Paso Energy in respect of any preferred or
preference stock of any affiliate of El Paso Energy; and (iii) senior to the El
Paso Energy Common Stock. The terms of the Trust Preferred Securities provide
that each holder of Trust Preferred Securities issued by the applicable EPE
Trust, by acceptance thereof, agrees to the subordination provisions and other
terms of the Trust Guarantee relating thereto.
The Trust Guarantees will constitute a guarantee of payment and not of
collection (that is, the guaranteed party may institute a legal proceeding
directly against the guarantor to enforce its rights under the Trust Guarantee
without instituting a legal proceeding against any other person or entity).
INFORMATION CONCERNING THE TRUST GUARANTEE TRUSTEE
The Trust Guarantee Trustee, prior to the occurrence of a default with
respect to a Trust Guarantee, undertakes to perform only such duties as are
specifically set forth in such Trust Guarantee and, after default, shall
exercise the same degree of care as a prudent individual would exercise in the
conduct of his or her own affairs. Subject to such provisions, the Trust
Guarantee Trustee is under no obligation to exercise any of the powers vested in
it by a Trust Guarantee at the request of any holder of Trust Preferred
Securities, unless offered reasonable indemnity against the costs, expenses and
liabilities which might be incurred thereby.
The Company and certain of its affiliates may, from time to time, maintain
a banking relationship with the Trust Guarantee Trustee.
GOVERNING LAW
The Trust Guarantees will be governed by, and construed in accordance with,
the laws of the State of New York.
RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES,
THE SUBORDINATED DEBT SECURITIES AND THE GUARANTEES
As long as El Paso Energy makes payments of interest and other payments
when due on the Subordinated Debt Securities, such payments will be sufficient
to cover distributions and other payments due on the Trust Preferred Securities,
primarily because: (i) the aggregate principal amount of the Subordinated Debt
Securities will be equal to the sum of the aggregate stated liquidation
preference of the Trust Securities; (ii) the interest rate and interest and
other payment dates of the Subordinated Debt Securities will match the
distribution rate and distribution and other payment dates for the Trust
Preferred Securities; (iii) El Paso Energy shall pay for all and any costs,
expenses and liabilities of the EPE Trusts except the EPE Trusts' obligations to
holders of the Trust Preferred Securities under the Trust Preferred Securities
of the EPE Trusts; and (iv) the Declaration of each EPE Trust further provides
that such EPE Trust will not engage in any activity that is not consistent with
the limited purposes of such EPE Trust.
Payments of distributions and other amounts due on the Trust Preferred
Securities of an EPE Trust (to the extent such EPE Trust has funds available for
the payment of such distributions) are irrevocably guaranteed by El Paso Energy
as and to the extent set forth under "Description of Trust Guarantees." Taken
together, El Paso Energy's obligations under the Subordinated Debt Securities,
the Subordinated Indenture, the Declarations of the EPE Trusts and the Trust
Guarantees provide a full, irrevocable and unconditional guarantee of payments
of distributions and other amounts due on the Trust Preferred Securities. No
single document standing alone or operating in conjunction with fewer than all
of the other documents constitutes such guarantee. It is only the combined
operation of these documents that has the effect of providing a full,
irrevocable and unconditional guarantee of each of the EPE Trust's obligations
under the Trust Preferred Securities. If and to the extent that El Paso Energy
does not make payments on the Subordinated Debt Securities, the EPE Trusts will
not pay distributions or other amounts due on the Trust Preferred Securities.
The Trust Guarantees do not cover payment of distributions when an EPE Trust
does not have sufficient funds to pay such distributions. In such event, the
remedies of a holder of the Trust Preferred Securities of such EPE Trust are
described herein under "Description of the Trust Guarantees -- Events of
Default." The
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obligations of El Paso Energy under the Trust Guarantees are unsecured and are
subordinate and junior in right of payment to all other liabilities of El Paso
Energy.
Notwithstanding anything to the contrary in the Subordinated Indenture and
to the extent set forth therein, El Paso Energy has the right to set-off any
payment it is otherwise required to make thereunder with and to the extent El
Paso Energy has theretofore made, or is concurrently on the date of such payment
making, a payment under a Trust Guarantee.
A holder of Trust Preferred Securities of an EPE Trust may institute a
legal proceeding directly against El Paso Energy to enforce its rights under the
Trust Guarantee with respect to such EPE Trust without first instituting a legal
proceeding against the Trust Guarantee Trustee, such EPE Trust or any other
person or entity.
The Trust Preferred Securities of an EPE Trust evidence a beneficial
interest in such EPE Trust. The EPE Trusts exist for the sole purpose of issuing
the Trust Securities and investing the proceeds thereof in Subordinated Debt
Securities. A principal difference between the rights of a holder of Trust
Preferred Securities and a holder of Subordinated Debt Securities is that a
holder of Subordinated Debt Securities is entitled to receive from El Paso
Energy the principal amount of and interest accrued on Subordinated Debt
Securities held, while a holder of Trust Preferred Securities is entitled to
receive distributions from an EPE Trust (or from El Paso Energy under the Trust
Guarantee) if and to the extent such EPE Trust has funds available for the
payment of such distributions.
Upon any voluntary or involuntary termination, winding-up or liquidation of
an EPE Trust involving the liquidation of the Subordinated Debt Securities, the
holders of the Trust Preferred Securities of such EPE Trust will be entitled to
receive, out of assets held by such EPE Trust and after satisfaction of
liabilities to creditors of such EPE Trust as provided by applicable law, the
liquidation distribution in cash. See "Description of Trust Preferred
Securities." Upon any voluntary or involuntary liquidation or bankruptcy of El
Paso Energy, the Property Trustee of an EPE Trust, as holder of the Subordinated
Debt Securities of such Trust, would be a subordinated creditor of El Paso
Energy, subordinated in right of payment to all Senior Debt of El Paso Energy,
but entitled to receive payment in full of principal and interest, before any
shareholders of El Paso Energy receive payments or distributions. Since El Paso
Energy is the guarantor under the Trust Guarantees and has agreed to pay for all
costs, expenses and liabilities of the EPE Trusts (other than the EPE Trusts'
obligations to the holders of the Trust Preferred Securities), the positions of
a holder of Trust Preferred Securities and a holder of Subordinated Debt
Securities relative to other creditors and to shareholders of El Paso Energy in
the event of liquidation or bankruptcy of El Paso Energy would be substantially
the same.
A default or event of default under any Senior Debt of El Paso Energy will
not constitute a default or Event of Default under the Subordinated Indenture.
However, in the event of payment defaults under, or acceleration of, Senior Debt
of El Paso Energy, the subordination provisions of the Subordinated Indenture
provide that no payments may be made in respect of the Subordinated Debt
Securities until Senior Debt has been paid in full or any payment default
thereunder has been cured or waived. Failure to make required payments on the
Subordinated Debt Securities would constitute an Event of Default under the
Subordinated Indenture with respect thereto.
PLAN OF DISTRIBUTION
El Paso Energy and any EPE Trust may offer or sell the El Paso Energy
Securities and the Trust Preferred Securities, respectively, to or through one
or more underwriters, dealers or agents as designated from time to time, or
through a combination of such methods and also may offer or sell the El Paso
Energy Securities and the Trust Preferred Securities, respectively, directly to
one or more other purchasers. El Paso Energy and any EPE Trust may sell the El
Paso Energy Securities and the Trust Preferred Securities, respectively, as soon
as practicable after effectiveness of the Registration Statement of which this
Prospectus is a part.
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A Prospectus Supplement will set forth the terms of the offering of the
particular series of Securities offered thereby, including: (i) the name or
names of any underwriters or agents; (ii) the initial public offering or
purchase price of such series of Securities; (iii) any underwriting discounts,
commissions, and other items constituting underwriters' compensation and any
other discount, concessions, or commissions allowed or reallowed or paid by any
underwriters to other dealers; (iv) any commissions paid to any agents; (v) the
net proceeds to El Paso Energy from the sales; (vi) the net proceeds to an EPE
Trust from the sales; and (vii) any securities exchanges or markets on which the
Securities may be listed.
Unless otherwise set forth in the Prospectus Supplement relating to a
particular series of Securities, the obligations of the underwriters to purchase
such series of Securities will be subject to certain conditions precedent and
each of the underwriters with respect to such series of Securities will be
obligated to purchase all of the Securities of such series allocated to it if
any such Securities are purchased. Any initial public offering price and any
discounts or concessions allowed, reallowed, or paid to dealers may be changed
from time to time.
The El Paso Energy Securities and the Trust Securities may be offered and
sold by El Paso Energy or any EPE Trust, respectively, directly or through
agents designated by El Paso Energy or any EPE Trust from time to time. Unless
otherwise indicated in the related Prospectus Supplement, each such agent will
be acting on a best efforts basis for the period of its appointment. Any agent
participating in the distribution of Securities may be deemed to be an
"underwriter," as that term is defined in the Securities Act, of the Securities
so offered and sold. The Securities also may be sold to dealers at the
applicable price to the public set forth in the Prospectus Supplement relating
to such series of Securities. Such dealers may be deemed to be "underwriters"
within the meaning of the Securities Act. Underwriters, dealers and agents may
be entitled, under agreements entered into with El Paso Energy or an EPE Trust,
to indemnification by El Paso Energy or such EPE Trust against certain civil
liabilities, including liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, or be customers of, El Paso Energy in the ordinary course
of business.
Other than Common Stock, Preferred Stock and Senior Debt Securities, all
Securities offered will be a new issue of securities with no established trading
market. Any underwriter to whom Securities are sold by El Paso Energy or any EPE
Trust for public offering and sale may make a market in such Securities, but
such underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. The Securities may or may not be listed on a
national securities exchange or a foreign securities exchange, except that the
Common Stock is listed for trading on the NYSE. Any Common Stock sold pursuant
to a Prospectus Supplement will be listed for trading on the NYSE, subject to
official notice of issuance. No assurance can be given as to the liquidity of or
the trading markets for any Securities.
LEGAL MATTERS
The validity of the Common Stock, Preferred Stock, Senior Debt Securities,
Subordinated Debt Securities and Trust Guarantees will be passed upon for El
Paso Energy and the EPE Trusts by Andrews & Kurth L.L.P., Houston, Texas. The
validity of the Trust Preferred Securities under Delaware Law will be passed
upon for the EPE Trusts by Potter Anderson & Corroon, Wilmington, Delaware, as
special Delaware counsel. If the Securities are being distributed in an
underwritten offering, the validity of the Securities will be passed upon for
the underwriters by counsel identified in the related Prospectus Supplement.
EXPERTS
The consolidated financial statements and financial statement schedule of
EPG as of December 31, 1997 and 1996, and for the years ended December 31, 1997,
1996, and 1995, incorporated by reference in this Prospectus, have been
incorporated herein in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of such firm as experts in
accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than selling
or underwriting discounts and commissions, to be incurred by El Paso Energy in
connection with the issuance and distribution of the Securities being
registered. All amounts shown are estimated except the Commission registration
fee.*
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $191,750
Printing and engraving expenses............................. 235,651
Legal fees and expenses..................................... 98,680
Accounting fees and expenses................................ 59,379
Trustee's fees and expenses................................. 15,494
Miscellaneous............................................... 55,037
--------
Total............................................. $655,991
========
</TABLE>
- ---------------
* The above table reflects amounts incurred to date in connection with the
issuance and distribution of the securities registered hereunder.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines, and
amounts paid in settlement in connection with specified actions, rules, or
proceedings, whether civil, criminal, administrative, or investigative (other
than action by or in the right of the corporation -- a "derivative action"), if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with the defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's charter, by-laws,
disinterested director vote, stockholder vote, agreement, or otherwise.
Article X of El Paso Energy's By-laws requires indemnification to the full
extent permitted under Delaware law as from time to time in effect. Subject to
any restrictions imposed by Delaware law, the By-laws of El Paso Energy provide
an unconditional right to indemnification for all expense, liability, and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes, or penalties
and amounts paid in settlement) actually and reasonably incurred or suffered by
any person in connection with any actual or threatened proceeding (including, to
the extent permitted by law, any derivative action) by reason of the fact that
such person is or was serving as a director, officer, or employee of El Paso
Energy or that, being or having been such a director or officer or an employee
of El Paso Energy, such person is or was serving at the request of El Paso
Energy as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, including an employee
benefit plan. The By-laws of El Paso Energy also provide that El Paso Energy
may, by action of its Board of Directors, provide indemnification to its agents
with the same scope and effect as the foregoing indemnification of directors and
officers.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability for (i) any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
payment of unlawful
II-1
<PAGE> 33
dividends or unlawful stock purchases or redemptions, or (iv) any transaction
from which the director derived an improper personal benefit.
Article 10 of the El Paso Energy Charter provides that to the full extent
that the Delaware General Corporation Law, as it now exists or may hereafter be
amended, permits the limitation or elimination of the liability of directors, a
director of El Paso Energy shall not be liable to El Paso Energy or its
stockholders for monetary damages for breach of fiduciary duty as a director.
Any amendment to or repeal of such Article 10 shall not adversely affect any
right or protection of a director of El Paso Energy for or with respect to any
acts or omissions of such director occurring prior to such amendment or repeal.
El Paso Energy maintains directors' and officers' liability insurance which
provides for payment, on behalf of the directors and officers of El Paso Energy
and its subsidiaries, of certain losses of such persons (other than matters
uninsurable under law) arising from claims, including claims arising under the
Securities Act, for acts or omissions by such persons while acting as directors
or officers of El Paso Energy and/or its subsidiaries, as the case may be.
Reference is made to Exhibits 1.1, 1.2 and 1.3 hereto, respectively, which
contain provisions for indemnification of El Paso Energy, and its directors,
officers, and any controlling persons, against certain liabilities for
information furnished by the underwriters and/or agents, as applicable,
expressly for use in the Prospectus Supplements.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
----------- -------
<C> <S>
***1.1 -- Form of El Paso Energy Debt Securities Underwriting
Agreement
***1.2 -- Form of El Paso Energy Equity Securities Underwriting
Agreement
1.3 -- El Paso Energy Capital Trust I Trust Preferred Securities
Underwriting Agreement, dated as of March 11, 1998
(incorporated by reference to Exhibit 1.1 of EPG's
Current Report on Form 8-K, File No. 1-2700, filed March
17, 1998)
3.1 -- Restated Certificate of Incorporation of El Paso Energy;
Certificate of Designation, Preferences and Rights of
Series A Junior Participating Preferred Stock of El Paso
Energy, dated as of July 16, 1998, as amended
(incorporated by reference to Exhibit 3.1 of El Paso
Energy's Current Report on Form 8-K12G3, File No.
1-14365, filed August 3, 1998)
3.2 -- By-laws of El Paso Energy, as amended, dated as of July
16, 1998 (incorporated by reference to Exhibit 3.2 of El
Paso Energy's Current Report on Form 8-K12G3, File No.
1-14365, filed August 3, 1998)
4.1 -- Shareholder Rights Agreement, dated as of July 16, 1998,
by and between El Paso Energy and BankBoston, N.A., as
Rights Agent (incorporated by reference to Exhibit 4.1 of
El Paso Energy's Current Report on Form 8-K12G3, File No.
1-14365, filed August 3, 1998)
**4.2 -- Form of Senior Indenture between El Paso Energy and The
Chase Manhattan Bank, as Trustee (including form of
senior security)
4.3 -- Subordinated Debt Securities Indenture, dated as of March
1, 1998, between EPG and The Chase Manhattan Bank, as
Trustee (including form of subordinated security)
(incorporated by reference to Exhibit 4.1 of EPG's
Current Report on Form 8-K, File No. 1-2700, filed March
17, 1998)
4.4 -- First Supplemental Indenture to the Subordinated Debt
Securities Indenture, dated as of March 17, 1998, between
EPG and The Chase Manhattan Bank, as Trustee
(incorporated by reference to Exhibit 4.2 of EPG's
Current Report on Form 8-K, File No. 1-2700, filed March
17, 1998)
</TABLE>
II-2
<PAGE> 34
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
----------- -------
<C> <S>
4.5 -- Second Supplemental Indenture to the Subordinated Debt
Securities Indenture, dated as of August 1, 1998, between
El Paso Energy and The Chase Manhattan Bank, as Trustee
(incorporated by reference to Exhibit 4.2 of El Paso
Energy's Current Report on Form 8-K12G3, File No.
1-14365, filed August 3, 1998)
*4.6 -- Certificate of Trust of El Paso Energy Capital Trust I
**4.7 -- Restated Certificate of Trust of El Paso Energy Capital
Trust I
*4.8 -- Declaration of Trust of El Paso Energy Capital Trust I
4.9 -- Amended and Restated Declaration of Trust of El Paso
Energy Capital Trust I (incorporated by reference to
Exhibit 4.4 of EPG's Current Report on Form 8-K, File No.
1-2700, filed March 17, 1998)
4.10 -- First Amendment to Amended and Restated Declaration of
Trust of El Paso Energy Capital Trust I, dated as of
August 1, 1998 (incorporated by reference to Exhibit 4.3
of El Paso Energy's Current Report on Form 8-K12G3, File
No. 1-14365, filed August 3, 1998)
*4.11 -- Certificate of Trust of El Paso Energy Capital Trust II
**4.12 -- Restated Certificate of Trust of El Paso Energy Capital
Trust II
*4.13 -- Declaration of Trust of El Paso Energy Capital Trust II
**4.14 -- Amendment No. 1 to Declaration of Trust of El Paso Energy
Capital Trust II
*4.15 -- Certificate of Trust of El Paso Energy Trust III
**4.16 -- Restated Certificate of Trust of El Paso Energy Capital
Trust III
*4.17 -- Declaration of Trust of El Paso Energy Trust III
**4.18 -- Amendment No. 1 to Declaration of Trust of El Paso Energy
Capital Trust III
4.19 -- Trust Convertible Preferred Securities Guarantee
Agreement, dated as of March 17, 1998, between EPG and
The Chase Manhattan Bank (incorporated by reference to
Exhibit 4.7 of EPG's Current Report on Form 8-K, File No.
1-2700, filed March 17, 1998)
4.20 -- First Amendment to Trust Convertible Preferred Securities
Guarantee Agreement, dated as of August 1, 1998
(incorporated by reference to Exhibit 4.4 of El Paso
Energy's Current Report on Form 8-K12G3, File No.
1-14365, filed August 3, 1998)
4.21 -- 4 3/4% Convertible Subordinated Debenture due 2028 of EPG
(incorporated by reference to Exhibit 4.6 of EPG's
Current Report on Form 8-K, File No. 1-2700, filed March
17, 1998)
4.22 -- El Paso Energy Capital Trust I Trust Convertible
Preferred Security Certificate (incorporated by reference
to Exhibit 4.5 of EPG's Current Report on Form 8-K, File
No. 1-2700, filed March 17, 1998)
5.1 -- Opinion of Andrews & Kurth L.L.P. as to the legality of
the 4 3/4% Subordinated Convertible Debentures due 2028
of EPG, the Trust Convertible Preferred Securities
Guarantee Agreement dated as of March 17, 1998 and the
Common Stock issuable upon conversion of the Trust
Convertible Preferred Securities of El Paso Energy
Capital Trust I (incorporated by reference to Exhibit 5.1
of EPG's Current Report on Form 8-K, File No. 1-2700,
filed March 17, 1998)
***5.2 -- Opinion of Andrews & Kurth L.L.P. as to the legality of
the Common Stock, Preferred Stock, Senior Debt
Securities, Subordinated Debt Securities and Trust
Guarantees
</TABLE>
II-3
<PAGE> 35
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
----------- -------
<C> <S>
5.3 -- Opinion of Potter Anderson & Corroon as to the legality
of the Trust Convertible Preferred Securities of El Paso
Energy Capital Trust I (incorporated by reference to
Exhibit 5.2 of EPG's Current Report on Form 8-K, File No.
1-2700, filed March 17, 1998)
***5.4 -- Opinion of Potter Anderson & Corroon as to the legality
of the Trust Preferred Securities of El Paso Energy
Capital Trust II and El Paso Energy Capital Trust III
8.1 -- Opinion of Andrews & Kurth L.L.P. as to certain federal
income tax matters (incorporated by reference to Exhibit
8.1 of EPG's Current Report on Form 8-K, File No. 1-2700,
filed March 17, 1998)
**12.1 -- Computation of Ratio of Earnings to Fixed Charges and
Ratio of Earnings to Combined Fixed Charges and Preferred
and Preference Stock Dividend Requirements
**23.1 -- Consent of PricewaterhouseCoopers LLP
23.2 -- Consent of Andrews & Kurth L.L.P. (included in Exhibits
5.1 and 8.1)
23.3 -- Consent of Potter Anderson & Corroon (included in Exhibit
5.3)
**24.1 -- Power of Attorney (included on signature page)
25.1 -- Form T-1 Statement of Eligibility of The Chase Manhattan
Bank regarding the Trust Preferred Securities of El Paso
Energy Capital Trust I (incorporated by reference to
Exhibit 25.1 of EPG's Current Report on Form 8-K, File
No. 1-2700, filed March 17, 1998)
25.2 -- Form T-1 Statement of Eligibility of The Chase Manhattan
Bank regarding the Subordinated Debt Securities of EPG
(incorporated by reference to Exhibit 25.2 of EPG's
Current Report on Form 8-K, File No. 1-2700, filed March
17, 1998)
25.3 -- Form T-1 Statement of Eligibility of The Chase Manhattan
Bank regarding the El Paso Energy Capital Trust I Trust
Preferred Securities Guarantee Agreement (incorporated by
reference to Exhibit 25.3 of EPG's Current Report on Form
8-K, File No. 1-2700, filed March 17, 1998)
***25.4 -- Form T-1 Statement of Eligibility of The Chase Manhattan
Bank regarding the Trust Preferred Securities of El Paso
Energy Capital Trust II and El Paso Energy Capital Trust
III, the Senior Debt Securities and the Guarantee
Agreements with respect to El Paso Energy Capital Trust
II and El Paso Energy Capital Trust III
</TABLE>
- ---------------
* Previously filed.
** Filed herewith.
*** To be filed as an exhibit to El Paso Energy's Current Report on Form 8-K in
connection with and prior to a specific offering.
ITEM 17. UNDERTAKINGS
A. The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered
II-4
<PAGE> 36
(if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration
Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that paragraphs A(l)(i) and A(l)(ii) above do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, such filing of El
Paso Energy's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act of 1934) that
is incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the Registrants pursuant to the provisions described in Item 15 of this
Registration Statement, or otherwise, the Registrants have been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrants of expenses incurred or
paid by a director, officer, or controlling person of the Registrants in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the Registrants will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-5
<PAGE> 37
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment
No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on September 4, 1998.
EL PASO ENERGY CORPORATION
By: /s/ WILLIAM A. WISE
----------------------------------
William A. Wise
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes H.
Brent Austin and Britton White, Jr., and each of them as attorneys-in-fact with
full power of substitution, to execute in the name and on behalf of such person,
individually and in each capacity stated below, and to file, any and all
amendments to this Registration Statement, including any and all post-effective
amendments.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to the Registration Statement has been signed by the
following persons in the capacities and on the dates as indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ WILLIAM A. WISE Chairman of the Board, September 4, 1998
- ----------------------------------------------------- President, Chief Executive
William A. Wise Officer and Director
/s/ H. BRENT AUSTIN Executive Vice President and September 4, 1998
- ----------------------------------------------------- Chief Financial Officer
H. Brent Austin
/s/ JEFFREY I. BEASON Vice President and Controller September 4, 1998
- ----------------------------------------------------- (Chief Accounting Officer)
Jeffrey I. Beason
/s/ BYRON ALLUMBAUGH Director September 4, 1998
- -----------------------------------------------------
Byron Allumbaugh
/s/ JUAN CARLOS BRANIFF Director September 4, 1998
- -----------------------------------------------------
Juan Carlos Braniff
/s/ PETER T. FLAWN Director September 4, 1998
- -----------------------------------------------------
Peter T. Flawn
/s/ JAMES F. GIBBONS Director September 4, 1998
- -----------------------------------------------------
James F. Gibbons
</TABLE>
II-6
<PAGE> 38
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ BEN F. LOVE Director September 4, 1998
- -----------------------------------------------------
Ben F. Love
/s/ KENNETH L. SMALLEY Director September 4, 1998
- -----------------------------------------------------
Kenneth L. Smalley
/s/ MALCOLM WALLOP Director September 4, 1998
- -----------------------------------------------------
Malcolm Wallop
</TABLE>
II-7
<PAGE> 39
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, El
Paso Energy Capital Trust II certifies that it has reasonable grounds to believe
that it meets the requirements for filing on Form S-3 and has duly caused this
Post-Effective Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on September 4, 1998.
EL PASO ENERGY CAPITAL TRUST II
By: El Paso Energy Corporation, as
Sponsor
By: /s/ H. BRENT AUSTIN
----------------------------------
H. Brent Austin
Executive Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, El
Paso Energy Capital Trust III certifies that it has reasonable grounds to
believe that it meets the requirements for filing on Form S-3 and has duly
caused this Post-Effective Amendment No. 1 to the Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Houston, State of Texas, on September 4, 1998.
EL PASO ENERGY CAPITAL TRUST III
By: El Paso Energy Corporation, as
Sponsor
By: /s/ H. BRENT AUSTIN
----------------------------------
H. Brent Austin
Executive Vice President
and Chief Financial Officer
II-8
<PAGE> 40
LIST OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
----------- -------
<C> <S>
***1.1 -- Form of El Paso Energy Debt Securities Underwriting
Agreement
***1.2 -- Form of El Paso Energy Equity Securities Underwriting
Agreement
1.3 -- El Paso Energy Capital Trust I Trust Preferred Securities
Underwriting Agreement, dated as of March 11, 1998
(incorporated by reference to Exhibit 1.1 of EPG's
Current Report on Form 8-K, File No. 1-2700, filed March
17, 1998)
3.1 -- Restated Certificate of Incorporation of El Paso Energy;
Certificate of Designation, Preferences and Rights of
Series A Junior Participating Preferred Stock of El Paso
Energy, dated as of July 16, 1998, as amended
(incorporated by reference to Exhibit 3.1 of El Paso
Energy's Current Report on Form 8-K12G3, File No.
1-14365, filed August 3, 1998)
3.2 -- By-laws of El Paso Energy, as amended, dated as of July
16, 1998 (incorporated by reference to Exhibit 3.2 of El
Paso Energy's Current Report on Form 8-K12G3, File No.
1-14365, filed August 3, 1998)
4.1 -- Shareholder Rights Agreement, dated as of July 16, 1998,
by and between El Paso Energy and BankBoston, N.A., as
Rights Agent (incorporated by reference to Exhibit 4.1 of
El Paso Energy's Current Report on Form 8-K12G3, File No.
1-14365, filed August 3, 1998)
**4.2 -- Form of Senior Indenture between El Paso Energy and The
Chase Manhattan Bank, as Trustee (including form of
senior security)
4.3 -- Subordinated Debt Securities Indenture, dated as of March
1, 1998, between EPG and The Chase Manhattan Bank, as
Trustee (including form of subordinated security)
(incorporated by reference to Exhibit 4.1 of EPG's
Current Report on Form 8-K, File No. 1-2700, filed March
17, 1998)
4.4 -- First Supplemental Indenture to the Subordinated Debt
Securities Indenture, dated as of March 17, 1998, between
EPG and The Chase Manhattan Bank, as Trustee
(incorporated by reference to Exhibit 4.2 of EPG's
Current Report on Form 8-K, File No. 1-2700, filed March
17, 1998)
4.5 -- Second Supplemental Indenture to the Subordinated Debt
Securities Indenture, dated as of August 1, 1998, between
El Paso Energy and The Chase Manhattan Bank, as Trustee
(incorporated by reference to Exhibit 4.2 of El Paso
Energy's Current Report on Form 8-K12G3, File No.
1-14365, filed August 3, 1998)
*4.6 -- Certificate of Trust of El Paso Energy Capital Trust I
**4.7 -- Restated Certificate of Trust of El Paso Energy Capital
Trust I
*4.8 -- Declaration of Trust of El Paso Energy Capital Trust I
4.9 -- Amended and Restated Declaration of Trust of El Paso
Energy Capital Trust I (incorporated by reference to
Exhibit 4.4 of EPG's Current Report on Form 8-K, File No.
1-2700, filed March 17, 1998)
4.10 -- First Amendment to Amended and Restated Declaration of
Trust of El Paso Energy Capital Trust I, dated as of
August 1, 1998 (incorporated by reference to Exhibit 4.3
of El Paso Energy's Current Report on Form 8-K12G3, File
No. 1-14365, filed August 3, 1998)
*4.11 -- Certificate of Trust of El Paso Energy Capital Trust II
**4.12 -- Restated Certificate of Trust of El Paso Energy Capital
Trust II
*4.13 -- Declaration of Trust of El Paso Energy Capital Trust II
**4.14 -- Amendment No. 1 to Declaration of Trust of El Paso Energy
Capital Trust II
</TABLE>
<PAGE> 41
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
----------- -------
<C> <S>
*4.15 -- Certificate of Trust of El Paso Energy Trust III
**4.16 -- Restated Certificate of Trust of El Paso Energy Capital
Trust III
*4.17 -- Declaration of Trust of El Paso Energy Trust III
**4.18 -- Amendment No. 1 to Declaration of Trust of El Paso Energy
Capital Trust III
4.19 -- Trust Convertible Preferred Securities Guarantee
Agreement, dated as of March 17, 1998, between EPG and
The Chase Manhattan Bank (incorporated by reference to
Exhibit 4.7 of EPG's Current Report on Form 8-K, File No.
1-2700, filed March 17, 1998)
4.20 -- First Amendment to Trust Convertible Preferred Securities
Guarantee Agreement, dated as of August 1, 1998
(incorporated by reference to Exhibit 4.4 of El Paso
Energy's Current Report on Form 8-K12G3, File No.
1-14365, filed August 3, 1998)
4.21 -- 4 3/4% Convertible Subordinated Debenture due 2028 of EPG
(incorporated by reference to Exhibit 4.6 of EPG's
Current Report on Form 8-K, File No. 1-2700, filed March
17, 1998)
4.22 -- El Paso Energy Capital Trust I Trust Convertible
Preferred Security Certificate (incorporated by reference
to Exhibit 4.5 of EPG's Current Report on Form 8-K, File
No. 1-2700, filed March 17, 1998)
5.1 -- Opinion of Andrews & Kurth L.L.P. as to the legality of
the 4 3/4% Subordinated Convertible Debentures due 2028
of EPG, the Trust Convertible Preferred Securities
Guarantee Agreement dated as of March 17, 1998 and the
Common Stock issuable upon conversion of the Trust
Convertible Preferred Securities of El Paso Energy
Capital Trust I (incorporated by reference to Exhibit 5.1
of EPG's Current Report on Form 8-K, File No. 1-2700,
filed March 17, 1998)
***5.2 -- Opinion of Andrews & Kurth L.L.P. as to the legality of
the Common Stock, Preferred Stock, Senior Debt
Securities, Subordinated Debt Securities and Trust
Guarantees
5.3 -- Opinion of Potter Anderson & Corroon as to the legality
of the Trust Convertible Preferred Securities of El Paso
Energy Capital Trust I (incorporated by reference to
Exhibit 5.2 of EPG's Current Report on Form 8-K, File No.
1-2700, filed March 17, 1998)
***5.4 -- Opinion of Potter Anderson & Corroon as to the legality
of the Trust Preferred Securities of El Paso Energy
Capital Trust II and El Paso Energy Capital Trust III
8.1 -- Opinion of Andrews & Kurth L.L.P. as to certain federal
income tax matters (incorporated by reference to Exhibit
8.1 of EPG's Current Report on Form 8-K, File No. 1-2700,
filed March 17, 1998)
**12.1 -- Computation of Ratio of Earnings to Fixed Charges and
Ratio of Earnings to Combined Fixed Charges and Preferred
and Preference Stock Dividend Requirements
**23.1 -- Consent of PricewaterhouseCoopers LLP
23.2 -- Consent of Andrews & Kurth L.L.P. (included in Exhibits
5.1 and 8.1)
23.3 -- Consent of Potter Anderson & Corroon (included in Exhibit
5.3)
**24.1 -- Power of Attorney (included on signature page)
25.1 -- Form T-1 Statement of Eligibility of The Chase Manhattan
Bank regarding the Trust Preferred Securities of El Paso
Energy Capital Trust I (incorporated by reference to
Exhibit 25.1 of EPG's Current Report on Form 8-K, File
No. 1-2700, filed March 17, 1998)
</TABLE>
<PAGE> 42
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
----------- -------
<C> <S>
25.2 -- Form T-1 Statement of Eligibility of The Chase Manhattan
Bank regarding the Subordinated Debt Securities of EPG
(incorporated by reference to Exhibit 25.2 of EPG's
Current Report on Form 8-K, File No. 1-2700, filed March
17, 1998)
25.3 -- Form T-1 Statement of Eligibility of The Chase Manhattan
Bank regarding the El Paso Energy Capital Trust I Trust
Preferred Securities Guarantee Agreement (incorporated by
reference to Exhibit 25.3 of EPG's Current Report on Form
8-K, File No. 1-2700, filed March 17, 1998)
***25.4 -- Form T-1 Statement of Eligibility of The Chase Manhattan
Bank regarding the Trust Preferred Securities of El Paso
Energy Capital Trust II and El Paso Energy Capital Trust
III, the Senior Debt Securities and the Guarantee
Agreements with respect to El Paso Energy Capital Trust
II and El Paso Energy Capital Trust III
</TABLE>
- ---------------
* Previously filed.
** Filed herewith.
*** To be filed as an exhibit to El Paso Energy's Current Report on Form 8-K in
connection with and prior to a specific offering.
<PAGE> 1
EXHIBIT 4.2
================================================================================
EL PASO ENERGY CORPORATION
TO
THE CHASE MANHATTAN BANK
TRUSTEE
------------------------
INDENTURE
DATED AS OF
----------
------------------------
SENIOR DEBT SECURITIES
------------------------
================================================================================
<PAGE> 2
EL PASO ENERGY CORPORATION
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8; 6.10
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1; 7.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4; 10.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1; 1.2
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.14
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2; 5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4
(Section) 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
</TABLE>
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<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.7
</TABLE>
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
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<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 104. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 114. Language of Notices, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 115. Incorporators, Stockholders, Officers and Directors of the
Company Exempt from Individual Liability . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE TWO
SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 202. Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 203. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 204. Global Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 205. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE THREE
THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
</TABLE>
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<TABLE>
<S> <C>
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . 28
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . 30
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 311. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . 36
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . 37
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 505. Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . . . . 38
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 515. Waiver of Usury, Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . 43
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
</TABLE>
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<TABLE>
<S> <C>
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . 45
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 612. Merger, Conversion, Consolidation or Succession to Business. . . . . . . . . . . . . . . . 47
SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . 48
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . 49
SECTION 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . 50
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms. . . . . . . . . . . . . . . . . . . . 51
SECTION 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . 52
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . 55
ARTICLE TEN
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1004. Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1005. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1006. Limitations on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1007. Restriction of Sale-Leaseback Transaction . . . . . . . . . . . . . . . . . . . . . . . . . 59
</TABLE>
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<TABLE>
<S> <C>
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE ELEVEN
REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1103. Selection by Trustee of Securities to be Redeemed . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE TWELVE
SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . . . . 64
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE THIRTEEN
DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1301. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1302. Legal Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1304. Application by Trustee of Funds Deposited for Payment
of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1305. Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
</TABLE>
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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<PAGE> 8
INDENTURE dated as of __________________________, 1998, between EL PASO
ENERGY CORPORATION, a corporation duly organized and existing under the laws of
Delaware (the "Company"), having its principal office at the El Paso Energy
Building, 1001 Louisiana, Houston, Texas 77002, and THE CHASE MANHATTAN BANK, a
New York banking corporation, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities"), to be
issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
that are required to be a part of this Indenture and, to the extent applicable,
shall be governed by such provisions.
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 agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly provided, the
term "generally accepted accounting principles" with respect to any
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<PAGE> 9
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States at the date of such
computation;
(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; and
(5) the words "Article" and "Section" refer to an Article
and Section, respectively, of this Indenture.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the board of directors of the Company, or
the executive or any other committee of that board duly authorized to act in
respect thereof.
"Board Resolution" means a copy of a resolution certified by the
Corporate Secretary or an Assistant Secretary of the Company, the principal
financial officer of the Company or any other authorized officer of the Company
or a person duly authorized by any of them, to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or
other location, means, except as otherwise provided as contemplated by Section
301 with respect to any series of Securities, each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
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<PAGE> 10
institutions in that Place of Payment or other location are authorized or
obligated by law, executive order or regulation to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act 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 of the Board, its Chief
Executive Officer, its President, any of its Vice Presidents or any other
authorized officer of the Company or a person duly authorized by any of them,
and delivered to the Trustee.
"Consolidated Net Tangible Assets" means, at any date of
determination, the total amount of assets after deducting therefrom (i) all
current liabilities (excluding (A) any current liabilities that by their terms
are extendable or renewable at the option of the obligor thereon to a time more
than 12 months after the time as of which the amount thereof is being computed,
and (B) current maturities of long-term debt), and (ii) the value (net of any
applicable reserves) of all goodwill, trade names, trademarks, patents and
other like intangible assets, all as set forth on the consolidated balance
sheet of the Company and its consolidated subsidiaries for the Company's most
recently completed fiscal quarter, prepared in accordance with generally
accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which at the date hereof is 450 West 33rd Street, New York, NY
10001.
"corporation" includes corporations, associations, partnerships,
limited liability companies, joint-stock companies and business trusts.
"covenant defeasance" has the meaning specified in Section 1303.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Debt" means any obligation created or assumed by any Person for the
repayment of money borrowed and any purchase money obligation created or
assumed by such Person.
"Default" means, with respect to a series of Securities, any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
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"Defaulted Interest" has the meaning specified in Section 307.
"defeasance" has the meaning specified in Section 1302.
"Definitive Security" means a Security other than a Global Security or
a temporary Security.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 301, until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depositary hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"Funded Debt" means all Debt maturing one year or more from the date
of the creation thereof, all Debt directly or indirectly renewable or
extendible, at the option of the debtor, by its terms or by the terms of any
instrument or agreement relating thereto, to a date one year or more from the
date of the creation thereof, and all Debt under a revolving credit or similar
agreement obligating the lender or lenders to extend credit over a period of
one year or more.
"Global Security" means a Security in global form that evidences all
or part of the Securities of any series and is authenticated and delivered to,
and registered in the name of, the Depositary for such Securities or a nominee
thereof.
"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. The term "Indenture" also shall include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
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"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Lien" means any mortgage, pledge, security interest, charge, lien or
other encumbrance of any kind, whether or not filed, recorded or perfected
under applicable law.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(3).
"Officer's Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, any Vice President or
any other authorized officer of the Company or a person duly authorized by any
of them, and delivered to the Trustee. The officer signing an Officer's
Certificate given pursuant to Section 1004 shall be the principal executive,
financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of legal counsel, who may
be an employee of or counsel for the Company and who shall be reasonably
acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(2) 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, however, 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;
(3) Securities which have been paid pursuant to Section
306 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
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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; and
(4) Securities, except to the extent provided in Sections
1302 and 1303, with respect to which the Company has effected defeasance or
covenant defeasance as provided in Article Thirteen.
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (A) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof on such date pursuant to Section 502, (B) the principal amount
of a Security denominated in one or more currencies or currency units other
than U.S. dollars shall be the U.S. dollar equivalent of such currencies or
currency units, determined in the manner provided as contemplated by Section
301 on the date of original issuance of such Security, of the principal amount
(or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent (as so determined) on the date of original issuance of such Security
of the amount determined as provided in Clause (A) above) of such Security, and
(C) Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned as described in
Clause (C) above which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate
or rates of interest thereon, if any, the Stated Maturity or Stated Maturities
thereof, the original issue date or dates thereof, the redemption provisions,
if any, with respect thereto, and any other terms specified as contemplated by
Section 301 with respect thereto, are to be determined by the Company upon the
issuance of such Securities.
"Permitted Liens" means (i) Liens upon rights-of-way for pipeline
purposes; (ii) any governmental Lien, mechanics', materialmen's, carriers' or
similar Lien incurred in the ordinary course of business which is not yet due
or which is being contested in good faith by appropriate proceedings and any
undetermined Lien which is incidental to construction; (iii) the right reserved
to, or vested in, any municipality or public authority by the terms of any
right, power, franchise,
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<PAGE> 14
grant, license, permit or by any provision of law, to purchase or recapture or
to designate a purchaser of, any property; (iv) Liens of taxes and assessments
which are (A) for the then current year, (B) not at the time delinquent, or (C)
delinquent but the validity of which is being contested at the time by the
Company or any Subsidiary in good faith; (v) Liens of, or to secure performance
of, leases; (vi) any Lien upon, or deposits of, any assets in favor of any
surety company or clerk of court for the purpose of obtaining indemnity or stay
of judicial proceedings; (vii) any Lien upon property or assets acquired or
sold by the Company or any Restricted Subsidiary resulting from the exercise of
any rights arising out of defaults on receivables; (viii) any Lien incurred in
the ordinary course of business in connection with workmen's compensation,
unemployment insurance, temporary disability, social security, retiree health
or similar laws or regulations or to secure obligations imposed by statute or
governmental regulations; (ix) any Lien upon any property or assets in
accordance with customary banking practice to secure any Debt incurred by the
Company or any Restricted Subsidiary in connection with the exporting of goods
to, or between, or the marketing of goods in, or the importing of goods from,
foreign countries; or (x) any Lien in favor of the United States of America or
any state thereof, or any other country, or any political subdivision of any of
the foregoing, to secure partial, progress, advance, or other payments pursuant
to any contract or statute, or any Lien securing industrial development,
pollution control, or similar revenue bonds.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
other entity, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means, unless otherwise specifically provided for with respect to such
series as contemplated by Section 301, the office or agency of the Company in
The City of New York and such other place or places where, subject to the
provisions of Section 1002, the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Section 301.
"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.
"Principal Property" means (a) any pipeline assets of the Company or
any Subsidiary, including any related facilities employed in the
transportation, distribution or marketing of natural gas, that is located in
the United States or Canada, and (b) any processing or manufacturing plant
owned or leased by the Company or any Subsidiary and located within the United
States or Canada, except, in the case of either clause (a) or (b), any such
assets or plant which, in the opinion of the Board of Directors, is not
material in relation to the activities of the Company and its Subsidiaries as a
whole.
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"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 on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Restricted Subsidiary" means any Subsidiary of the Company owning or
leasing any Principal Property.
"Sale-Leaseback Transaction" means the sale or transfer by the Company
or any Restricted Subsidiary of any Principal Property to a Person (other than
the Company or a Subsidiary) and the taking back by the Company or any
Restricted Subsidiary, as the case may be, of a lease of such Principal
Property.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"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 principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as otherwise
provided in Section 905; provided, however, that if 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.
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<PAGE> 16
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean each Trustee with respect to
Securities of that series.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by
the United States, each of which are not callable or redeemable at the option
of the issuer thereof.
"Vice President", when used with respect to the Company or 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 such certificates or opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officer's Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 1004) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
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SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted 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 (either physically or by means of a
facsimile or an electronic transmission, provided that such electronic
transmission is transmitted through the facilities of a Depositary) 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 (either physically or by means of a
facsimile or an electronic transmission, provided that such electronic
transmission is transmitted through the facilities of a Depositary) to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 315 of the Trust Indenture Act)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
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
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<PAGE> 18
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.
The ownership, principal amount and serial numbers of Securities held
by any Person, and the date of commencement of such Person's holding the same,
shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other action 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.
Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any different part of such principal amount.
The Company may set any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders of Securities of such series, but the Company shall have no
obligation to do so. With regard to any record date set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant series on such
record date (or their duly appointed agents), and only such Persons, shall be
entitled to give or take the relevant action, whether or not such Holders
remain Holders after such record date.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder 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
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postage prepaid, to the Company addressed to it at 1001 Louisiana Street,
Houston, Texas 77002, to the attention of the Corporate Secretary, or at any
other address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid (if international mail,
by air mail), 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 any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
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 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.
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SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the law of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 114. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent, waiver
or Act required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
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SECTION 115. Incorporators, Stockholders, Officers and Directors of the
Company Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of or
contained in this Indenture or of or contained in any Security, or for any
claim based thereon or otherwise in respect thereof, or in any Security, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or any successor Person, either directly or
through the Company or any successor Person, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that all such liability
is hereby expressly waived and released as a condition of, and as a part of the
consideration for, the execution of this Indenture and the issue of the
Securities.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by an authorized officer
or other authorized person on behalf of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by
Section 303 for the authentication and delivery of such Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the United States Internal Revenue Code
and the regulations thereunder.]
[If a Global Security, -- insert legend required by Section 204 of the
Indenture] [If applicable, insert-- UNLESS THIS SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE
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<PAGE> 22
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
EL PASO ENERGY CORPORATION
[TITLE OF SECURITY]
NO. U.S.$
[CUSIP NO. ]
EL PASO ENERGY CORPORATION, a corporation duly incorporated and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to , or
registered assigns, the principal sum of United States Dollars on
[if the Security is to bear interest prior to Maturity, insert--, and to pay
interest thereon from , or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
and in each year, commencing , at the rate of
% per annum, until the principal hereof is paid or made available for payment
[if applicable, insert--, and at the rate of % per annum on any overdue
principal and premium and on any overdue installment of interest]. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the or (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice of
which shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in such
Indenture].
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<PAGE> 23
[If the Security is not to bear interest prior to Maturity,
insert--The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security
shall bear interest at the rate of % per annum, which shall accrue from
the date of such default in payment to the date payment of such principal has
been made or duly provided for. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of % per annum, which
shall accrue from the date of such demand for payment to the date payment of
such interest has been made or duly provided for, and such interest shall also
be payable on demand.]
[If a Global Security, insert--Payment of the principal of [(and
premium, if any)] and [if applicable, insert-- any such] interest on this
Security will be made by transfer of immediately available funds to a bank
account in designated by the Holder 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 [state other currency].]
[If a Definitive Security insert--Payment of the principal of [(and
premium, if any)] and [if applicable, insert--any such] interest on this
Security will be made at the office or agency of the Company maintained for
that purpose in , [in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts] [state other currency] [or
subject to any laws or regulations applicable thereto and to the right of the
Company (as provided in the Indenture) to rescind the designation of any such
Paying Agent, at the [main] offices of in
and in , or at such other offices or agencies as the Company
may designate, by [United States Dollar] [state other currency] check drawn on,
or transfer to a [United States Dollar] account maintained by the payee with, a
bank in The City of New York [ ] (so long as the applicable
Paying Agent has received proper transfer instructions in writing at least [
] days prior to the payment date)] [if applicable, insert--; provided, however,
that payment of interest may be made at the option of the Company by [United
States Dollar] [state other currency] check mailed to the addresses of the
Persons entitled thereto as such addresses shall appear in the Security
Register] [or by transfer to a [United States Dollar] [state other currency]
account maintained by the payee with a bank in The City of New York [state
other Place of Payment] (so long as the applicable Paying Agent has received
proper transfer instructions in writing by the Record Date prior to the
applicable Interest Payment Date)].]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
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<PAGE> 24
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: EL PASO ENERGY CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (the "Securities"), issued and to be issued in one or more series under
an Indenture dated as of _________________________ (the "Indenture"), between
the Company and The Chase Manhattan Bank, as Trustee (the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. As provided in the Indenture, the Securities may be issued in one
or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest, if any, at
different rates, may be subject to different redemption provisions, if any, may
be subject to different sinking, purchase or analogous funds, if any, may be
subject to different covenants and Events of Default and may otherwise vary as
in the Indenture provided or permitted. This Security is one of the series
designated on the face hereof [if applicable, insert--, limited in aggregate
principal amount to U.S.$ ].
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, [if
applicable, insert--(1) on ________________ in any year commencing with the
year
and ending with the year through operation of the sinking fund
for this series at a Redemption Price equal to 100% of the principal amount,
and (2)] at any time [if applicable, insert--on or after , ],
as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount): If
redeemed (if applicable, insert--on or before , %, and
if redeemed] during the 12-month period beginning of the
years indicated,
<TABLE>
<CAPTION>
Year Redemption Price Year Redemption Price
---- ------------------- ---- -------------------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to % of the principal
amount, together in the case of any such redemption [if applicable,
insert--(whether through operation of the sinking fund or otherwise)] with
accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities,
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<PAGE> 25
or one or more Predecessor Securities, of record at the close of business on
the relevant Record Dates referred to on the face hereof, all as provided in
the Indenture.]
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, (1) on
in any year commencing with the year and ending with the
year through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [if applicable, insert--on or after
], as a whole or in part, at the election of the Company, at the Redemption
Prices for redemption otherwise than through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below: If redeemed during the 12-month period beginning of the years indicated,
<TABLE>
<CAPTION>
Redemption Price Redemption Price for
for Redemption Redemption Otherwise Than
Through Operation Through Operation of
Year of the Sinking Fund the Sinking Fund
- --------------- ------------------------ -------------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to % of the principal
amount, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert--The sinking fund for this series provides for
the redemption on in each year beginning with the year
and ending with the year of [if applicable,--not less than $
("mandatory sinking fund") and not more than] $ aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Company otherwise than through [if applicable,-- mandatory]
sinking fund payments may be credited against subsequent [if
applicable,--mandatory] sinking fund payments otherwise required to be made [if
applicable,--in the inverse order in which they become due].]
[If the Security is subject to redemption in part of any kind,
insert--In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
[If applicable, insert--The Securities of this series are not
redeemable prior to Stated Maturity.]
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<PAGE> 26
[If the Security is not an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security, insert--If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to-- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and
payable, and (ii) of interest on any overdue principal and overdue interest,
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.)
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series to be affected (voting as one class). The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all affected series
(voting as one class), on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture. The Indenture permits, with certain exceptions as therein provided,
the Holders of a majority in principal amount of Securities of any series then
Outstanding to waive past defaults under the Indenture with respect to such
series 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.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect
to the Securities of this series, the Holders of not less than 25% in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity and
the Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or [any
premium or] interest hereon on or after the respective due dates expressed
herein.
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
-19-
<PAGE> 27
principal of and [any premium and] interest on this Security at the times,
place(s) and rate, and in the coin or currency, herein prescribed.
[If a Global Security, insert--This Global Security or portion hereof
may not be exchanged for Definitive Securities of this series except in the
limited circumstances provided in the Indenture.
The holders of beneficial interests in this Global Security will not
be entitled to receive physical delivery of Definitive Securities except as
described in the Indenture and will not be considered the Holders thereof for
any purpose under the Indenture.]
[If a Definitive Security, insert--As provided in the Indenture and
subject to certain limitations therein set forth, the transfer of this Security
is registerable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in [if
applicable, insert -- any place where the principal of and any premium and
interest on this Security are payable] [if applicable, insert-- The City of New
York [, or, subject to any laws or regulations applicable thereto and to the
right of the Company (limited as provided in the Indenture) to rescind the
designation of any such transfer agent, at the [main] offices of in
and in or at such other offices or agencies as the
Company may designate]], duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.]
The Securities of this series are issuable only in registered form
without coupons in denominations of U.S.$____________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
No recourse under or upon any obligation, covenant or agreement of or
contained in the Indenture or of or contained in any Security, or for any claim
based thereon or otherwise in respect thereof, or in any Security, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of
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<PAGE> 28
the Company or of any successor Person, either directly or through the Company
or any successor Person, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment, penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released by the acceptance hereof and as a condition of, and as part of the
consideration for, the Securities and the execution of the Indenture.
The Indenture provides that the Company (a) will be discharged from
any and all obligations in respect of the Securities (except for certain
obligations described in the Indenture), or (b) need not comply with certain
restrictive covenants of the Indenture, in each case if the Company deposits,
in trust, with the Trustee money or U.S. Government Obligations (or a
combination thereof) which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, in an
amount sufficient to pay all the principal of and interest on the Securities,
but such money need not be segregated from other funds except to the extent
required by law.
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
[If a Definitive Security, insert as a separate page--
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address of Assignee)
the within instrument of EL PASO ENERGY CORPORATION and does hereby irrevocably
constitute and appoint ________________________ Attorney to transfer said
instrument on the books of the within-named Company, with full power of
substitution in the premises.
Please Insert Social Security or
Other Identifying Number of Assignee:
- --------------------------------- -----------------------------------
Dated:
------------------------- -----------------------------------
(Signature)
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.]
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<PAGE> 29
SECTION 204. Global Securities.
Every Global Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED
TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME
OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO
SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND
DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN
LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE
FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
If Securities of a series are issuable in whole or in part in the form
of one or more Global Securities, as specified as contemplated by Section 301,
then, notwithstanding Clause (9) of Section 301 and the provisions of Section
302, any Global Security shall represent such of the Outstanding Securities of
such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced or increased, as the case
may be, to reflect exchanges. Any endorsement of a Global Security to reflect
the amount, or any reduction or increase in the amount, of Outstanding
Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or
in a Company Order. Subject to the provisions of Sections 303, 304 and 305,
the Trustee shall deliver and redeliver any Global Security in the manner and
upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Global Security shall be in a
Company Order (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel).
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Global Security if such Security was never issued and
sold by the Company and the Company delivers to the Trustee the Global Security
together with a Company Order (which need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel) with regard to the reduction or
increase, as the case may be, in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
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<PAGE> 30
SECTION 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
As Trustee
By:
-------------------------------
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officer's Certificate,
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series,
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest;
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<PAGE> 31
(4) the date or dates on which the principal of the
Securities of the series is payable or the method of determination thereof;
(5) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method of determination thereof, the
date or dates from which such interest shall accrue, or the method of
determination thereof, the Interest Payment Dates on which any such interest
shall be payable and the Regular Record Date for any interest payable on any
Interest Payment Date;
(6) the place or places where, subject to the provisions
of Section 1002, the principal of and any premium and interest on Securities of
the series shall be payable, Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange and notices, and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of a
Holder thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) whether payment of principal of and premium, if any,
and interest, if any, on the Securities of the series shall be without
deduction for taxes, assessments or governmental charges paid by Holders of the
series;
(11) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any Securities of
the series shall be payable if other than the currency of the United States of
America and the manner of determining the equivalent thereof in the currency of
the United States of America for purposes of the definition of "Outstanding" in
Section 101;
(12) if the amount of payments of principal of or any
premium or interest on any Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be determined;
(13) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or
-24-
<PAGE> 32
currency units other than that or those in which the Securities are stated to
be payable, the currency, currencies or currency units in which payment of the
principal of and any premium and interest on Securities of such series as to
which such election is made shall be payable, and the periods within which and
the terms and conditions upon which such election is to be made;
(14) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method of determination thereof;
(15) if and as applicable, that the Securities of the
series shall be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for such Global
Security or Global Securities and any circumstances other than those set forth
in Section 305 in which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of, a Person
other than the Depositary for such Global Security or a nominee thereof and in
which any such transfer may be registered;
(16) any deletions from, modifications of or additions to
the Events of Default set forth in Section 501 or the covenants of the Company
set forth in Article Ten pertaining to the Securities of the series;
(17) if other than as provided in Sections 1302 and 1303,
the means of defeasance or covenant defeasance as may be specified for the
Securities of the series;
(18) if other than the Trustee, the identity of the
Security Registrar and any Paying Agent; and
(19) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture, except as permitted by
Section 901(4)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to the Board Resolution referred to above and (subject to Section 303)
set forth, or determined in the manner provided, in the Officer's Certificate
referred to above or in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent
of the Holders, for increases in the aggregate principal amount of such series
of Securities and issuances of additional Securities of such series or for the
establishment of additional terms with respect to the Securities of such
series.
If any of the terms of the series are established by action taken by
or pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by an authorized officer or other authorized person
on behalf of the Company and delivered to the Trustee at or prior to the
-25-
<PAGE> 33
delivery of the Officer's Certificate setting forth, or providing the manner
for determining, the terms of the series.
With respect to Securities of a series subject to a Periodic Offering,
such Board Resolution or Officer's Certificate may provide general terms for
Securities of such series and provide either that the specific terms of
particular Securities of such series shall be specified in a Company Order or
that such terms shall be determined by the Company, or one or more of the
Company's agents designated in an Officer's Certificate, in accordance with a
Company Order.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered
form without coupons in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its Chief Financial
Officer, its President or any Vice President and need not be attested. 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 of any series 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 the Company Order shall authenticate and deliver such
Securities; provided, however, that in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, thereafter promptly confirmed in
writing) acceptable to the Trustee as may be specified by or pursuant to a
Company Order delivered to the Trustee prior to the time of the first
authentication of Securities of such series. If the form or terms of the
Securities of the series have been established in or pursuant to one or more
Board Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion
of Counsel stating,
-26-
<PAGE> 34
(1) if the form or forms of such Securities have been
established by or pursuant to Board Resolution as permitted by Section 201,
that such form or forms have been established in conformity with the provisions
of this Indenture;
(2) if the terms of such Securities have been, or in the
case of Securities of a series offered in a Periodic Offering, will be,
established by or pursuant to a Board Resolution as permitted by Section 301,
that such terms have been, or in the case of Securities of a series offered in
a Periodic Offering, will be, established in conformity with the provisions of
this Indenture, subject, in the case of Securities of a series offered in a
Periodic Offering, to any conditions specified in such Opinion of Counsel; and
(3) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
If such form or forms or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officer's Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any of such
Securities, the form or forms and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and the
other documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
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 of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any
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Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 309 for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of Definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the Definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause Definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of Definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for Definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company maintained pursuant to Section
1002 for the purpose of exchanges of Securities of such series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more Definitive Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount and tenor. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as Definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency of the
Company in The City of New York a register (the register maintained in such
office or in any other office or agency of the Company in a Place of Payment
being herein sometimes 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
Company will prior to the issuance of any Securities hereunder, appoint the
Trustee as the initial "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided and its corporate
trust office which, at the date hereof, is located at 450 West 33rd Street, New
York, New York 10001 as the initial office or agency in The City of New York
where the Security Register will be maintained. The Company may at any time
replace such Security Registrar, change such office or agency or act as its own
Security Registrar. The Company will give prompt written notice to the Trustee
of any change of the Security Registrar or of the location of such office or
agency.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company maintained pursuant to Section
1002 for such purpose, the Company shall
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execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount and tenor.
At the option of the Holder, Securities of any series (except a Global
Security) may be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made 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 1107 not involving any transfer.
The Company shall not be required (1) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 and ending at the close of business on the day of such mailing, or (2) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Notwithstanding any other provision in this Indenture and except as
otherwise specified as contemplated by Section 301, no Global Security may be
transferred to, or registered or exchanged for Securities registered in the
name of, any Person other than the Depositary for such Global Security or any
nominee thereof, and no such transfer may be registered, except as provided in
this paragraph. Every Security authenticated and delivered upon registration
or transfer of, or in exchange for or in lieu of, a Global Security shall be a
Global Security, except as provided in this paragraph. If (1) (A) the
Depositary for a Global Security notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Security or ceases to be a
clearing agency registered under the Exchange Act, and (B) a successor
Depositary is not appointed by the Company within 90 days, or (2) the Company
determines in its sole discretion that Securities of a series issued in global
form shall no longer be represented by a Global Security, then such Global
Security may be
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exchanged by such Depositary for Definitive Securities of the same series, of
any authorized denomination and of a like aggregate principal amount and tenor,
registered in the names of, and the transfer of such Global Security or portion
thereof may be registered to, such Persons as such Depositary shall direct.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, together
with, in proper cases, such security or indemnity as may be required by the
Company or the Trustee to save each of them and any agent of either of them
harmless, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
exchange for any mutilated Security or in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Security shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
of that series duly issued hereunder.
The provisions of this Section 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.
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SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Security of such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
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Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security is registered
as the owner of such Security for the purpose of receiving payment of principal
of and any premium and (subject to Sections 305 and 307) any 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 the Company or
the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the owner
of such Global Security for all purposes whatsoever. None of the Company, the
Trustee nor any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of in accordance with its
customary procedures, and the Trustee shall thereafter deliver to the Company a
certificate with respect to such disposition.
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SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (in
addition to the other identification numbers printed on the Securities), and,
if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such "CUSIP" numbers either
as printed on the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Securities, and any such redemption shall not be affected by any defect in
or omission of such "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of any series (except as to any surviving
rights of registration of transfer or exchange of such Securities herein
expressly provided for), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to such Securities, when
(1) either
(A) all such Securities theretofore authenticated
and delivered (other than (i) such Securities which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, and (ii) such 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, or
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(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
an amount of money in the currency or currency units in which such Securities
are payable sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and 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 with respect to such Securities; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to Securities of any series, (x) the obligations of the Company to the
Trustee under Section 607, the obligations of the Trustee to any Authenticating
Agent under Section 614 and the right of the Trustee to resign under Section
610 shall survive, and (y) if money shall have been deposited with the Trustee
pursuant to subclause (B) of Clause (1) of this Section, the obligations of the
Company and/or the Trustee under Sections 402, 606, 701 and 1002 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 any premium
and interest for whose payment such money has been deposited with the Trustee.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
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) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its Maturity; or
(3) default in the performance, or breach, of any term,
covenant or warranty of the Company in this Indenture (other than a term,
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of Securities other
than that series), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case, (B) consents to the entry of any
order for relief against it in an involuntary case, (C) consents to the
appointment of a Custodian of it or for all or substantially all of its
property, or (D) makes a general assignment for the benefit of its creditors;
or
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (A) is for relief against the Company in
an involuntary case, (B) appoints a Custodian of the Company or for all or
substantially all of its property, or (C) orders the liquidation of the
Company; and the order or decree remains unstayed and in effect for 90 days; or
(6) any other Event of Default provided as contemplated
by Section 301 with respect to Securities of that series.
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SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on all Securities of
that series,
(B) the principal of (and premium, if any, on)
any Securities of that series which have become due otherwise than by
such declaration of acceleration and any interest thereon at the rate
or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of Securities of that
series 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.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon 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 any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, 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 any
other obligor upon the Securities, their property or their 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
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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; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
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.
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 any
premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and 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 any premium and interest, respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
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(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the Securities of
that series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Sections
305 and 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
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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 Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series; provided, however, that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture;
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction; and
(3) subject to the provisions of Section 601, the Trustee
shall have the right to decline to follow any such direction if the Trustee in
good faith shall determine that the proceeding so directed would involve the
Trustee in personal liability.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except
(1) a continuing default in the payment of the principal
of or any premium or interest on any Security of such series, or
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(2) a default in respect of a covenant or provision
hereof which under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
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 suit
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, however, 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.
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
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. 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.
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SECTION 602. Notice of Defaults.
If a Default occurs and is continuing with respect to the Securities
of any series, the Trustee shall, within 90 days after it occurs, transmit, in
the manner and to the extent provided in Section 313(c) of the Trust Indenture
Act, notice of all uncured or unwaived Defaults known to it; provided, however,
that, except in the case of a Default in payment on the Securities of any
series, the Trustee may withhold the notice if and so long as the board of
directors, the executive committee or a trust committee of its directors and/or
its duly authorized officers in good faith determines that withholding such
notice is in the interests of Holders of Securities of such series; provided
further, however, that, in the case of any default or breach of the character
specified in Section 501(3) with respect to the Securities of such series, no
such notice to Holders shall be given until at least 60 days after the
occurrence thereof.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely on and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(2) any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by a Company Request
or Company Order (other than delivery of any Security to the Trustee for
authentication and delivery pursuant to Section 303, which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Directors shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officer's Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) 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 reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
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(6) 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;
(7) 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
(8) the Trustee may request that the Company deliver an
Officer's Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officer's Certificate may be signed by any person authorized
to sign an Officer's Certificate, including any person specified as so
authorized in any such certificate previously delivered and not superseded.
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 or any Authenticating Agent assumes no
responsibility for their correctness. Neither the Trustee nor any
Authenticating Agent makes any representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent 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 Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
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SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except
those attributable to its negligence or bad faith.
The obligations of the Company under this Section to compensate the
Trustee and to pay or reimburse the Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a lien prior to that of the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of particular Securities.
Without limiting any rights available to the Trustee under applicable
law, when the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(4) or Section 501(5), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of
administration under any applicable Bankruptcy Law.
The provisions of this Section shall survive the satisfaction and
discharge of this Indenture and the defeasance of the Securities.
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.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one or more Trustees hereunder with
respect to the Securities of each series, at least one of 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 required by the Trust Indenture Act. If
such Person publishes reports of condition at least annually, pursuant to law
or to the requirements of a 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.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
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, then, in any such case, (A) the Company may remove
the Trustee with respect to all Securities, or (B) 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
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situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company shall promptly
appoint a successor Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the manner provided in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each
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successor Trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees as co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
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SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), 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. Appointment of Authenticating Agent.
The Trustee (upon notice to the Company) may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue (in accordance with procedures acceptable to
the Trustee) and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent 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 Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of such Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the execution or filing of
any paper or any further act on the part of the Trustee or such Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this
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Section, the Trustee may appoint a successor Authenticating Agent which shall
be acceptable to the Company and shall mail written notice of such appointment
by first-class mail, postage prepaid, to all Holders of Securities of the
series with respect to which such Authenticating Agent will serve, as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
Except with respect to an Authenticating Agent appointed at the
request of the Company, the Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section,
and the Trustee shall be entitled to be reimbursed by the Company for such
payments, subject to the provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
As Trustee
By:
---------------------------------
As Authenticating Agent
By:
----------------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than May 15 and November 15
in each year, a list for each series of Securities, in such form as the Trustee
may reasonably require, of the names and
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addresses of the Holders of Securities of such series as of the preceding April
30 or October 31, as the case may be, and
(2) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to
the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for Securities of a series, no such list need be furnished with
respect to such series of Securities.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
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.
Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than July 15 in each calendar year
with respect to the 12-month period ending on the previous May 15, commencing
May 15, 1999.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
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SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or,
if the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the Trustee and
the Commission, in accordance with rules and regulations prescribed from time
to time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and (2)
of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or sell, lease or transfer its properties and assets as, or substantially as,
an entirety to, any Person, unless:
(1) (A) in the case of a merger, the Company is the
surviving entity, or (B) the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by sale or transfer, or
which leases, the properties and assets of the Company as, or substantially as,
an entirety shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form reasonably satisfactory to the
Trustee, the due and punctual payment of the principal of and any premium and
interest on all the Securities and the performance
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or observance of every covenant and condition of this Indenture on the part of
the Company to be performed or observed;
(2) immediately after giving effect to such transaction,
no Default or Event of Default exists; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, transfer or lease and the supplemental indenture required in
connection with such transaction comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any sale, transfer or lease of the properties and
assets of the Company as, or substantially as, an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which
the Company is merged or to which such sale, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named originally as the Company herein, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to secure the Securities pursuant to the requirements
of Section 1006 or otherwise; or
(2) 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; or
(3) to add to the covenants of the Company or the Events
of Default for the benefit of the Holders of all or any series of Securities
(and if such covenants or Events of Default are to be for the benefit of less
than all series of Securities, stating that such covenants or Events of
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Default, as the case may be, are expressly being included solely for the
benefit of such series) or to surrender any right or power herein conferred
upon the Company; or
(4) to add to, change or eliminate any of the provisions
of this Indenture in respect of one or more series of Securities; provided,
however, that any such addition, change or elimination shall become effective
only when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
(5) to establish the form or terms of securities of any
series as permitted by Sections 201 and 301; or
(6) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, to
comply with any applicable mandatory provisions of law or to make any other
provisions with respect to matters or questions arising under this Indenture,
provided that such action pursuant to this Clause (6) shall not adversely
affect the interests of the Holders of Securities of any series in any material
respect; or
(7) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611; or
(8) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification of
this Indenture under the Trust Indenture Act or under any similar federal
statute subsequently enacted, and to add to this Indenture such other
provisions as may be expressly required under the Trust Indenture Act.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series affected by such
supplemental indenture (voting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest, if any, on, any Security, or
reduce the principal amount thereof or premium, if any, on or the rate of
interest thereon, or
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(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for in
this Indenture, or
(3) change any obligation of the Company, with respect to
Outstanding Securities of a series, to maintain an office or agency in the
places and for the purposes specified in Section 1002 for such series, or
(4) modify any of the provisions of this Section, Section
513 or Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 611 and 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section 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 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.
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SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and 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 where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The
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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.
Except as otherwise specified with respect to a series of Securities
as contemplated by Section 301, the Company hereby initially designates as the
Place of Payment for each series of Securities The City and State of New York,
and initially appoints the Trustee at its Corporate Trust Office as the
Company's office or agency for each such purpose in such city.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and 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 for any
series of Securities, it will, on or prior to each due date of the principal of
or any premium or interest on any Securities of that series, 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.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) hold all sums held by it for
the payment of the principal of (and premium, if any) or interest, if any, on
Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided; (2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest if any, on the
Securities of that series; and (3) during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
held in trust by such Paying Agent for payment in respect of the Securities of
that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
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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 any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper
in each Place of Payment with respect to such series, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 150 days after the end
of each fiscal year of the Company ending after the date hereof, an Officer's
Certificate, stating whether or not to the best knowledge of the signer thereof
the Company is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if it
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company.
SECTION 1006. Limitations on Liens.
The Company will not, nor will it permit any Restricted Subsidiary to,
create, assume, incur or suffer to exist any Lien upon any Principal Property,
whether owned or leased on the date of this Indenture or thereafter acquired,
to secure any Debt of the Company or any other Person (other than the
Securities issued hereunder), without in any such case making effective
provision whereby all of the Securities Outstanding hereunder shall be secured
equally and ratably with, or prior to, such Debt so long as such Debt shall be
so secured. This restriction shall not apply to:
(i) any Lien upon any property or assets of the
Company or any Restricted Subsidiary in existence on the date of this
Indenture or created pursuant to an "after-acquired property" clause
or similar term in existence on the date of this Indenture or
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any mortgage, pledge agreement, security agreement or other similar
instrument in existence on the date of this Indenture;
(ii) any Lien upon any property or assets created
at the time of acquisition of such property or assets by the Company
or any Restricted Subsidiary or within one year after such time to
secure all or a portion of the purchase price for such property or
assets or Debt incurred to finance such purchase price, whether such
Debt was incurred prior to, at the time of or within one year of such
acquisition;
(iii) any Lien upon any property or assets existing
thereon at the time of the acquisition thereof by the Company or any
Restricted Subsidiary (whether or not the obligations secured thereby
are assumed by the Company or any Restricted Subsidiary);
(iv) any Lien upon any property or assets of a
Person existing thereon at the time such Person becomes a Restricted
Subsidiary by acquisition, merger or otherwise;
(v) the assumption by the Company or any
Restricted Subsidiary of obligations secured by any Lien existing at
the time of the acquisition by the Company or any Restricted
Subsidiary of the property or assets subject to such Lien or at the
time of the acquisition of the Person which owns such property or
assets;
(vi) any Lien on property to secure all or part of
the cost of construction or improvements thereon or to secure Debt
incurred prior to, at the time of, or within one year after completion
of such construction or making of such improvements, to provide funds
for any such purpose;
(vii) any Lien on any oil, gas, mineral and
processing and other plant properties to secure the payment of costs,
expenses or liabilities incurred under any lease or grant or operating
or other similar agreement in connection with or incident to the
exploration, development, maintenance or operation of such properties;
(viii) any Lien arising from or in connection with a
conveyance by the Company or any Restricted Subsidiary of any
production payment with respect to oil, gas, natural gas, carbon
dioxide, sulphur, helium, coal, metals, minerals, steam, timber or
other natural resources;
(ix) any Lien in favor of the Company or any
Restricted Subsidiary;
(x) any Lien created or assumed by the Company or
any Restricted Subsidiary in connection with the issuance of Debt the
interest on which is excludable from gross income of the holder of
such Debt pursuant to the Internal Revenue Code of 1986, as amended,
or any successor statute, for the purpose of financing, in whole or in
part, the
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acquisition or construction of property or assets to be used by the
Company or any Subsidiary;
(xi) any Lien upon property or assets of any
foreign Restricted Subsidiary to secure Debt of that foreign
Restricted Subsidiary;
(xii) Permitted Liens;
(xiii) any Lien upon any additions, improvements,
replacements, repairs, fixtures, appurtenances or component parts
thereof attaching to or required to be attached to property or assets
pursuant to the terms of any mortgage, pledge agreement, security
agreement or other similar instrument, creating a Lien upon such
property or assets permitted by Clauses (i) through (xii), inclusive,
of this Section; or
(xiv) any extension, renewal, refinancing,
refunding or replacement (or successive extensions, renewals,
refinancing, refundings or replacements) of any Lien, in whole or in
part, that is referred to in Clauses (i) through (xiii), inclusive, of
this Section, or of any Debt secured thereby; provided, however, that
the principal amount of Debt secured thereby shall not exceed the
greater of the principal amount of Debt so secured at the time of such
extension, renewal, refinancing, refunding or replacement and the
original principal amount of Debt so secured (plus in each case the
aggregate amount of premiums, other payments, costs and expenses
required to be paid or incurred in connection with such extension,
renewal, refinancing, refunding or replacement); provided, further,
however, that such extension, renewal, refinancing, refunding or
replacement shall be limited to all or a part of the property
(including improvements, alterations and repairs on such property)
subject to the encumbrance so extended, renewed, refinanced, refunded
or replaced (plus improvements, alterations and repairs on such
property).
Notwithstanding the foregoing provisions of this Section, the Company
may, and may permit any Restricted Subsidiary to, create, assume, incur or
suffer to exist any Lien upon any Principal Property to secure any Debt of the
Company or any other Person (other than the Securities) that is not excepted by
Clauses (i) through (xiv), inclusive, of this Section without securing the
Securities issued hereunder, provided that the aggregate principal amount of
all Debt then outstanding secured by such Lien and all similar Liens, together
with all net sale proceeds from Sale-Leaseback Transactions (excluding
Sale-Leaseback Transactions permitted by Clauses (i) through (iv), inclusive,
of Section 1007), does not exceed 15% of Consolidated Net Tangible Assets.
SECTION 1007. Restriction of Sale-Leaseback Transaction.
The Company will not, nor will it permit any Restricted Subsidiary to,
engage in a Sale-Leaseback Transaction unless:
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(i) such Sale-Leaseback Transaction occurs within
one year from the date of acquisition of the Principal Property
subject thereto or the date of the completion of construction or
commencement of full operations on such Principal Property, whichever
is later;
(ii) the Sale-Leaseback Transaction involves a
lease for a period, including renewals, of not more than three years;
(iii) the Company or such Restricted Subsidiary
would be entitled to incur Debt secured by a Lien on the Principal
Property subject thereto in a principal amount equal to or exceeding
the net sale proceeds from such Sale-Leaseback Transaction without
securing the Securities; or
(iv) the Company or such Restricted Subsidiary,
within a one-year period after such Sale- Leaseback Transaction,
applies or causes to be applied an amount not less than the net sale
proceeds from such Sale-Leaseback Transaction to (A) the repayment,
redemption or retirement of Funded Debt of the Company or any
Subsidiary, or (B) investment in another Principal Property.
Notwithstanding the foregoing provisions of this Section, the Company
may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback
Transaction that is not excepted by Clauses (i) through (iv), inclusive, of
this Section, provided that the net sale proceeds from such Sale-Leaseback
Transaction, together with the aggregate principal amount of then outstanding
Debt (other than the Securities) secured by Liens upon Principal Properties not
excepted by Clauses (i) through (xiv), inclusive, of Section 1006, do not
exceed 15% of the Consolidated Net Tangible Assets.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 1005, 1006 or 1007 with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in aggregate principal amount of the
Outstanding Securities of all affected series (voting as one class) shall, by
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
A waiver which changes or eliminates any term, provision or condition
of this Indenture which has expressly been included solely for the benefit of
one or more particular series of Securities, or which modifies the rights of
the Holders of Securities of such series with respect to such term, provision
or condition, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall,
at least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date, of the principal amount of Securities of such series to
be redeemed and, if applicable, of the tenor of the Securities to be redeemed.
In the case of any redemption of Securities (1) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, or (2) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officer's Certificate evidencing
compliance with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 45 days prior to the Redemption Date by the Trustee, from the outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
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SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail (if
international mail, by air mail), postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date, to each Holder of Securities to
be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series and of a specified tenor are to be redeemed, the identification (and, in
the case of partial redemption of any Securities, the principal amounts) of the
particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Securities to be redeemed shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) 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 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
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
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at the Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that, unless otherwise specified as contemplated by Section
301, 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 and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series and of like tenor, 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.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
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SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officer's Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 and stating the basis for such credit and that such Securities
have not been previously so credited, and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE
SECTION 1301. Applicability of Article.
The provisions of this Article shall be applicable to each series of
Securities except as otherwise specified as contemplated by Section 301 for
Securities of such series.
SECTION 1302. Legal Defeasance.
In addition to discharge of the Indenture pursuant to Section 401, the
Company shall be deemed to have paid and discharged the entire indebtedness on
all the Securities of such a series on the 91st day after the date of the
deposit referred to in Clause (1) below, and the provisions of this
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<PAGE> 72
Indenture with respect to the Securities of such series shall no longer be in
effect (except as to (i) rights of registration of transfer and exchange of
Securities of such series and the Company's right of optional redemption, if
any, (ii) substitution of mutilated, destroyed, lost or stolen Securities,
(iii) rights of holders of Securities to receive payments of principal thereof
and interest thereon, upon the original stated due dates therefor or on the
specified redemption dates therefor (but not upon acceleration), and remaining
rights of the holders to receive mandatory sinking fund payments, if any, (iv)
the rights, obligations, duties and immunities of the Trustee hereunder, (v)
the rights of the holders of Securities of such series as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or
any of them, and (vi) the obligations of the Company under Section 1002), and
the Trustee, at the expense of the Company, shall, upon a Company Request,
execute proper instruments acknowledging the same, if the conditions set forth
below are satisfied (hereinafter, "defeasance"):
(1) The Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust, for the purposes of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of such series (i) cash
in an amount, or (ii) in the case of any series of Securities the payments on
which may only be made in legal coin or currency of the United States, U.S.
Government Obligations, maturing as to principal and interest at such times and
in such amounts as will insure the availability of cash, or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (A) the principal and interest and premium, if
any, on all Securities of such series on each date that such principal,
interest or premium, if any, is due and payable or on any Redemption Date
established pursuant to Clause (3) below, and (B) any mandatory sinking fund
payments on the dates on which such payments are due and payable in accordance
with the terms of the Indenture and the Securities of such series;
(2) The Company has delivered to the Trustee an Opinion
of Counsel based on the fact that (x) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (y) since the
date hereof, there has been a change in the applicable federal income tax law,
in either case to the effect that, and such opinion shall confirm that, the
holders of the Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and defeasance
and will be subject to federal income tax on the same amount and in the same
manner and at the same times, as would have been the case if such deposit and
defeasance had not occurred;
(3) If the Securities are to be redeemed prior to Stated
Maturity (other than from mandatory sinking fund payments or analogous
payments), notice of such redemption shall have been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee shall have
been made;
(4) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default shall have occurred and
be continuing on the date of such deposit; and
-65-
<PAGE> 73
(5) The Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
provision have been complied with.
For this purpose, such defeasance means that the Company and any other
obligor upon the Securities of such series shall be deemed to have paid and
discharged the entire debt represented by the Securities of such series, which
shall thereafter be deemed to be "Outstanding" only for the purposes of Section
1304 and the rights and obligations referred to in Clauses (i) through (vi),
inclusive, of the first paragraph of this Section, and to have satisfied all
its other obligations under the Securities of such series and this Indenture
insofar as the Securities of such series are concerned.
SECTION 1303. Covenant Defeasance.
The Company and any other obligor, if any, shall be released on the
91st day after the date of the deposit referred to in Clause (1) below from its
obligations under Sections 704, 801, 1005, 1006 and 1007 with respect to the
Securities of any series on and after the date the conditions set forth below
are satisfied (hereinafter, "covenant defeasance"), and the Securities of such
series shall thereafter be deemed to be not "Outstanding" for the purposes of
any request, demand, authorization, direction, notice, waiver, consent or
declaration or other action or Act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
Outstanding for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the Securities of such series, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section, whether directly
or indirectly by reason of any reference elsewhere herein to such Section or by
reason of any reference in such Section to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under Section 501, but, except as specified above, the
remainder of this Indenture and the Securities of such series shall be
unaffected thereby. The following shall be the conditions to application of
this Section 1303:
(1) The Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of such series, (i)
cash in an amount, or (ii) in the case of any series of Securities the payments
on which may only be made in legal coin or currency of the United States, U.S.
Government Obligations, maturing as to principal and interest at such times and
in such amounts as will insure the availability of cash, or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (A) the principal and interest and premium, if
any, on all Securities of such series on each date that such principal,
interest or premium, if any, is due and payable or on any Redemption Date
established pursuant to Clause (2) below, and (B) any mandatory sinking fund
payments on the day on which such payments are due and payable in accordance
with the terms of the Indenture and the Securities of such series;
-66-
<PAGE> 74
(2) If the Securities are to be redeemed prior to Stated
Maturity (other than from mandatory sinking fund payments or analogous
payments), notice of such redemption shall have been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee shall have
been made;
(3) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default shall have occurred and
be continuing on the date of such deposit;
(4) The Company shall have delivered to the Trustee an
Opinion of Counsel which shall confirm that the holders of the Securities of
such series will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and covenant defeasance and will be
subject to federal income tax on the same amount and in the same manner and at
the same times, as would have been the case if such deposit and covenant
defeasance had not occurred; and
(5) The Company shall have delivered to the Trustee an
Officer's Certificate stating that all conditions precedent provided for
relating to the covenant defeasance contemplated by this provision have been
complied with.
SECTION 1304. Application by Trustee of Funds Deposited for Payment of
Securities.
Subject to the provisions of the last paragraph of Section 1003, all
moneys or U.S. Government Obligations deposited with the Trustee pursuant to
Section 1302 or 1303 (and all funds earned on such moneys or U.S. Government
Obligations) shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent), to the Holders of the particular Securities of such series for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest;
but such money need not be segregated from other funds except to the extent
required by law. Subject to Sections 1302 and 1303, the Trustee promptly shall
pay to the Company upon request any excess moneys held by them at any time.
SECTION 1305. Repayment to Company.
The Trustee and any Paying Agent promptly shall pay or return to the
Company upon Company Request any money and U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of and
any interest on the Securities of any series for which money or U.S. Government
Obligations have been deposited pursuant to Section 1302 or 1303.
The provisions of the last paragraph of Section 1003 shall apply to
any money held by the Trustee or any Paying Agent under this Article that
remains unclaimed for two years after the Maturity of any series of Securities
for which money or U.S. Government obligations have been deposited pursuant to
Section 1302 or 1303.
-67-
<PAGE> 75
This instrument may be executed with counterpart signature pages or in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
EL PASO ENERGY CORPORATION
By:
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
---------------------------------
Name:
Title:
-68-
<PAGE> 1
EXHIBIT 4.7
RESTATED CERTIFICATE OF TRUST
OF
EL PASO ENERGY CAPITAL TRUST I
This Restated Certificate of Trust is being executed as of March 17, 1998 for
the purposes of restating the Certificate of Trust of El Paso Energy Capital
Trust I (the "Trust") which was filed with the Secretary of State of the State
of Delaware on December 11, 1997.
The undersigned hereby certifies as follows:
1. Name. The name of the business trust is "El Paso Energy Capital Trust
I."
2. Delaware Trustee. The name and business address of the Delaware
resident trustee of the Trust meeting the requirements of Section 3807 of the
Act are as follows:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
3. Effectiveness. This Certificate of Trust shall be effective
immediately upon filing in the Office of the Secretary of State of the State of
Delaware.
IN WITNESS WHEREOF, the undersigned, being a trustee of the Trust,
has duly executed this Restated Certificate of Trust as of the date and year
first above written.
THE CHASE MANHATTAN BANK
not in its individual capacity but
solely as a trustee of the Trust
/s/ R. Lorenzen
------------------------------------
Name: R. Lorenzen
Title: Senior Trust Officer
<PAGE> 1
EXHIBIT 4.12
RESTATED CERTIFICATE OF TRUST
OF
EL PASO ENERGY CAPITAL TRUST II
This Restated Certificate of Trust is being executed as of August 3,
1998 for the purposes of restating the Certificate of Trust of El Paso Energy
Capital Trust II (the "Trust") which was filed with the Secretary of State of
the State of Delaware on December 11, 1997.
The undersigned hereby certifies as follows:
1. Name. The name of the business trust is "El Paso Energy Capital
Trust II" (the "Trust").
2. Delaware Trustee. The name and business address of the Delaware
resident trustee of the Trust meeting the requirements of Section 3807 of the
Act are as follows:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
3. Effectiveness. This Restated Certificate of Trust shall be effective
immediately upon filing in the Office of the Secretary of State of the State of
Delaware.
4. Duration of Trust. The Trust, unless terminated earlier, shall have
perpetual existence.
IN WITNESS WHEREOF, the undersigned, being a trustee of the Trust, has
duly executed this Restated Certificate of Trust as of the date and year first
above written.
THE CHASE MANHATTAN BANK
not in its individual capacity but solely
as a trustee of the Trust
By: /s/ R. Lorenzen
----------------------------------
Name: R. Lorenzen
Title: Senior Trust Officer
<PAGE> 1
EXHIBIT 4.14
FIRST AMENDMENT TO DECLARATION OF TRUST
THIS FIRST AMENDMENT TO DECLARATION OF TRUST, dated as of August 5,
1998 (the "First Amendment"), is among EL PASO ENERGY CORPORATION, a Delaware
corporation ("El Paso Energy" and hereinafter the "Sponsor"), Chase Manhattan
Bank Delaware, as Delaware trustee (the "Delaware Trustee"), and the
administrative trustees named on the signature page hereto (the "Administrative
Trustees"), and amends to the extent specified below the Declaration (as defined
herein).
W I T N E S S E T H :
WHEREAS, El Paso Natural Gas Company ("EPNG"), the Delaware Trustee and
the Administrative Trustees are parties to that certain Declaration of Trust of
El Paso Energy Capital Trust II (the "Trust") dated as of December 11, 1997 (the
"Declaration"); and
WHEREAS, EPNG recently caused El Paso Energy to be formed as a wholly
owned subsidiary of EPNG and then caused El Paso Energy to form El Paso Energy
Merger Company as a Delaware corporation and wholly owned subsidiary of El Paso
Energy ("Merger Sub"); and
WHEREAS, in accordance with that certain Reorganization Agreement,
dated as of July 16, 1998, among EPNG, El Paso Energy and Merger Sub, and
pursuant to that certain Agreement and Plan of Merger, dated as of July 16,
1998, among EPNG, El Paso Energy and Merger Sub, effective as of 12:01 a.m.,
Eastern Daylight Time, on August 1, 1998 EPNG merged (the "Merger") with Merger
Sub, with EPNG continuing as the surviving corporation of the Merger and each
outstanding share (or fraction thereof) of the common stock, par value $3.00 per
share, of EPNG being converted into a share (or equal fraction thereof) of
common stock, par value $3.00 per share, of El Paso Energy; and
WHEREAS, as a result of the Merger, El Paso Energy has become the
holding company of EPNG, and such holding company reorganization was effected in
accordance with Section 251(g) of the Delaware General Corporation Law; and
WHEREAS, the parties hereto desire to amend the Declaration in order to
substitute El Paso Energy for EPNG as sponsor of the Trust pursuant to such
holding company reorganization; and
WHEREAS, the entry into this First Amendment by the parties hereto is
in all respects authorized by the provisions of the Declaration; and
WHEREAS, all things necessary to make this First Amendment a valid
agreement according to its terms have been done.
<PAGE> 2
NOW, THEREFORE, for and in consideration of the premises, El Paso
Energy, the Delaware Trustee and the Administrative Trustees mutually covenant
and agree for the equal and proportionate benefit of the respective Holders from
time to time of the Trust Securities as follows:
ARTICLE 1
SECTION 1.01. Substitution of El Paso Energy. El Paso Energy does
hereby agree to succeed to and be substituted for EPNG under the Declaration
with the same effect as if it had been named originally therein as the Sponsor.
ARTICLE 2
MISCELLANEOUS
SECTION 2.01. Other Terms of Declaration. Except insofar as herein
otherwise expressly provided, all the provisions, terms and conditions of the
Declaration are in all respects ratified and confirmed and shall remain in full
force and effect.
SECTION 2.02. Terms Defined. All terms defined elsewhere in the
Declaration shall have the same meanings when used herein.
SECTION 2.03. Multiple Counterparts. This First Amendment may be
executed in any number of counterparts, each of which shall be deemed to be an
original for all purposes, but such counterparts shall together be deemed to
constitute but one and the same instrument.
SECTION 2.04. Responsibility of Delaware Trustee. The recitals
contained herein shall be taken as the statements of El Paso Energy, and the
Delaware Trustee assumes no responsibility for the correctness of the same. The
Delaware Trustee makes no representations as to the validity or sufficiency of
this First Amendment.
-2-
<PAGE> 3
IN WITNESS WHEREOF, this First Amendment has been duly executed by El
Paso Energy, the Delaware Trustee and the Administrative Trustees effective as
of the day and year first written above.
EL PASO ENERGY CORPORATION,
as sponsor of EL PASO ENERGY CAPITAL TRUST II
By: /s/ H. Brent Austin
-------------------------------------
Title: Executive Vice President and
Chief Financial Officer
CHASE MANHATTAN BANK
DELAWARE, as Delaware Trustee
By: /s/ Denis Kelly
-------------------------------------
Title: Trust Officer
/s/ H. Brent Austin
----------------------------------------
H. Brent Austin, as Administrative
Trustee
/s/ Jeffrey I. Beason
----------------------------------------
Jeffrey I. Beason, as Administrative
Trustee
/s/ C. Dana Rice
----------------------------------------
C. Dana Rice, as Administrative Trustee
-3-
<PAGE> 1
EXHIBIT 4.16
RESTATED CERTIFICATE OF TRUST
OF
EL PASO ENERGY CAPITAL TRUST III
This Restated Certificate of Trust is being executed as of July 29,
1998 for the purposes of restating the Certificate of Trust of El Paso Energy
Capital Trust III (the "Trust") which was filed with the Secretary of State of
the State of Delaware on December 11, 1997.
The undersigned hereby certifies as follows:
1. Name. The name of the business trust is "El Paso Energy Capital
Trust III" (the "Trust").
2. Delaware Trustee. The name and business address of the Delaware
resident trustee of the Trust meeting the requirements of Section 3807 of the
Act are as follows:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
3. Effectiveness. This Restated Certificate of Trust shall be
effective immediately upon filing in the Office of the Secretary of State of the
State of Delaware.
4. Duration of Trust. The Trust, unless terminated earlier, shall
have perpetual existence.
IN WITNESS WHEREOF, the undersigned, being a trustee of the Trust, has
duly executed this Restated Certificate of Trust as of the date and year first
above written.
THE CHASE MANHATTAN BANK
not in its individual capacity
but solely as a trustee of the
Trust
By: /s/ R. Lorenzen
-----------------------------
Name: R. Lorenzen
Title: Senior Trust Officer
<PAGE> 1
EXHIBIT 4.18
FIRST AMENDMENT TO DECLARATION OF TRUST
THIS FIRST AMENDMENT TO DECLARATION OF TRUST, dated as of August 5,
1998 (the "First Amendment"), is among EL PASO ENERGY CORPORATION, a Delaware
corporation ("El Paso Energy" and hereinafter the "Sponsor"), Chase Manhattan
Bank Delaware, as Delaware trustee (the "Delaware Trustee"), and the
administrative trustees named on the signature page hereto (the "Administrative
Trustees"), and amends to the extent specified below the Declaration (as defined
herein).
W I T N E S S E T H :
WHEREAS, El Paso Natural Gas Company ("EPNG"), the Delaware Trustee and
the Administrative Trustees are parties to that certain Declaration of Trust of
El Paso Energy Capital Trust III (the "Trust") dated as of December 11, 1997
(the "Declaration"); and
WHEREAS, EPNG recently caused El Paso Energy to be formed as a wholly
owned subsidiary of EPNG and then caused El Paso Energy to form El Paso Energy
Merger Company as a Delaware corporation and wholly owned subsidiary of El Paso
Energy ("Merger Sub"); and
WHEREAS, in accordance with that certain Reorganization Agreement,
dated as of July 16, 1998, among EPNG, El Paso Energy and Merger Sub, and
pursuant to that certain Agreement and Plan of Merger, dated as of July 16,
1998, among EPNG, El Paso Energy and Merger Sub, effective as of 12:01 a.m.,
Eastern Daylight Time, on August 1, 1998 EPNG merged (the "Merger") with Merger
Sub, with EPNG continuing as the surviving corporation of the Merger and each
outstanding share (or fraction thereof) of the common stock, par value $3.00 per
share, of EPNG being converted into a share (or equal fraction thereof) of
common stock, par value $3.00 per share, of El Paso Energy; and
WHEREAS, as a result of the Merger, El Paso Energy has become the
holding company of EPNG, and such holding company reorganization was effected in
accordance with Section 251(g) of the Delaware General Corporation Law; and
WHEREAS, the parties hereto desire to amend the Declaration in order to
substitute El Paso Energy for EPNG as sponsor of the Trust pursuant to such
holding company reorganization; and
WHEREAS, the entry into this First Amendment by the parties hereto is
in all respects authorized by the provisions of the Declaration; and
WHEREAS, all things necessary to make this First Amendment a valid
agreement according to its terms have been done.
<PAGE> 2
NOW, THEREFORE, for and in consideration of the premises, El Paso
Energy, the Delaware Trustee and the Administrative Trustees mutually covenant
and agree for the equal and proportionate benefit of the respective Holders from
time to time of the Trust Securities as follows:
ARTICLE 1
SECTION 1.01. Substitution of El Paso Energy. El Paso Energy does
hereby agree to succeed to and be substituted for EPNG under the Declaration
with the same effect as if it had been named originally therein as the Sponsor.
ARTICLE 2
MISCELLANEOUS
SECTION 2.01. Other Terms of Declaration. Except insofar as herein
otherwise expressly provided, all the provisions, terms and conditions of the
Declaration are in all respects ratified and confirmed and shall remain in full
force and effect.
SECTION 2.02. Terms Defined. All terms defined elsewhere in the
Declaration shall have the same meanings when used herein.
SECTION 2.03. Multiple Counterparts. This First Amendment may be
executed in any number of counterparts, each of which shall be deemed to be an
original for all purposes, but such counterparts shall together be deemed to
constitute but one and the same instrument.
SECTION 2.04. Responsibility of Delaware Trustee. The recitals
contained herein shall be taken as the statements of El Paso Energy, and the
Delaware Trustee assumes no responsibility for the correctness of the same. The
Delaware Trustee makes no representations as to the validity or sufficiency of
this First Amendment.
-2-
<PAGE> 3
IN WITNESS WHEREOF, this First Amendment has been duly executed by El
Paso Energy, the Delaware Trustee and the Administrative Trustees effective as
of the day and year first written above.
EL PASO ENERGY CORPORATION,
sponsor of EL PASO ENERGY CAPITAL Trust III
By: /s/ H. Brent Austin
--------------------------------------
Title: Executive Vice President and
Chief Financial Officer
CHASE MANHATTAN BANK
DELAWARE, as Delaware Trustee
By: /s/ Denis Kelly
--------------------------------------
Title: Trust Officer
/s/ H. Brent Austin
-----------------------------------------
H. Brent Austin, as Administrative
Trustee
/s/ Jeffrey I. Beason
-----------------------------------------
Jeffrey I. Beason, as Administrative
Trustee
/s/ C. Dana Rice
-----------------------------------------
C. Dana Rice, as Administrative Trustee
-3-
<PAGE> 1
EXHIBIT 12.1
EL PASO ENERGY CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED AND PREFERENCE STOCK DIVIDEND REQUIREMENTS
<TABLE>
<CAPTION>
FOR THE
SIX MONTHS
ENDED YEAR ENDED DECEMBER 31,
JUNE 30, ----------------------------------------------------
1998 1997 1996 1995 1994 1993
---------- ------ ------ ------ ------- -------
(DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C>
Earnings
Income from continuing operations .......... $ 113 $ 186 $ 38 $ 85 $ 90 $ 92
Income taxes ............................... 62 129 25 48 58 59
Minority interest .......................... 12 25 2 0 0 0
---------- ------ ------ ------ ------- -------
Income from continuing operations
before income taxes and minority
interest .............................. 187 340 65 133 148 151
Interest and debt expense .................. 119 218 100 85 76 71
Interest component of rentals .............. 5 7 5 3 3 3
Distributions in excess of earnings on
equity investments (undistributed
earnings on equity investments) ........ (13) 0 0 0 0 0
---------- ------ ------ ------ ------- -------
Total earnings available for
fixed charges ................... $ 298 $ 565 $ 170 $ 221 $ 227 $ 225
========== ====== ====== ====== ====== =======
Fixed Charges (a)
Interest and debt expense .................. 120 218 100 85 76 71
Interest components of rentals ............. 5 7 5 3 3 3
---------- ------ ------ ------ ------- -------
Fixed charges excluding preferred stock
dividend requirement .................... 125 225 105 88 79 74
Preferred stock dividend requirements ...... 18 25 2 0 0 0
---------- ------ ------ ------ ------- -------
Total fixed charges ................. $ 143 $ 250 $ 107 $ 88 $ 79 $ 74
========== ====== ====== ====== ====== =======
Ratio of Earnings to Fixed Charges (a) ....... 2.08 2.26 1.59 2.51 2.87 3.04
</TABLE>
- ----------
(a) The ratio of earnings to combined fixed charges and preferred and
preference stock dividend requirements for the periods presented is the
same as the ratio of earnings to fixed charges since El Paso Energy has
no outstanding preferred stock or preference stock and, therefore, no
dividend requirements.
For purposes of calculating these ratios: (i) "fixed charges" represent
interest cost (exclusive of interest on rate refunds), amortization of debt
costs, the estimated portion of rental expense representing the interest factor
and pre-tax preferred stock dividend requirements of majority-owned
subsidiaries; and (ii) "earnings" represent the aggregate of income from
continuing operations before income taxes, interest expense (exclusive of
interest on rate refunds), amortization of debt costs, the estimated portion of
rental expense representing the interest factor, and the actual amount of any
preferred stock dividend requirements of majority owned subsidiaries, adjusted
to reflect actual distributions from equity investments.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Post-Effective Amendment No.
1 to the Registration Statement of El Paso Energy Corporation, El Paso Energy
Capital Trust II and El Paso Energy Capital Trust III on Form S-3 (Registration
Nos. 333-42713, 02, 03) of our report dated March 12, 1998, on our audits of the
consolidated financial statements and financial statement schedule of El Paso
Natural Gas Company as of December 31, 1997 and 1996, and for the years ended
December 31, 1997, 1996 and 1995, which report is included in the Annual Report
on Form 10-K of El Paso Natural Gas Company for the year ended December 31,
1997. We also consent to the reference to our firm under the caption "Experts."
PricewaterhouseCoopers LLP
Houston, Texas
September 4, 1998
