<PAGE>
As filed with the Securities and Exchange Commission on October 31, 1996
REGISTRATION NO. 333-14617
POST-EFFECTIVE AMENDMENT NO. 2 TO REGISTRATION STATEMENT NO. 33-55153
POST-EFFECTIVE AMENDMENT NO. 4 TO REGISTRATION STATEMENT NO. 33-44327
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT, POST-EFFECTIVE AMENDMENT NO. 2
AND POST-EFFECTIVE AMENDMENT NO. 4
UNDER THE SECURITIES ACT OF 1933
---------------
EL PASO NATURAL GAS COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 74-0608280
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION
INCORPORATION OR ORGANIZATION) NO.)
BRITTON WHITE, JR.
SENIOR VICE PRESIDENT AND GENERAL
COUNSEL
ONE PAUL KAYSER CENTER ONE PAUL KAYSER CENTER
100 NORTH STANTON STREET 100 NORTH STANTON STREET
EL PASO, TEXAS 79901 EL PASO, TEXAS 79901
(915) 541-2600 (915) 541-2600
(NAME, ADDRESS, INCLUDING ZIP CODE,
(ADDRESS, INCLUDING ZIP CODE, AND AND TELEPHONE NUMBER, INCLUDING
TELEPHONE NUMBER, INCLUDING AREA AREA CODE, OF AGENT FOR SERVICE)
CODE, OF REGISTRANT'S PRINCIPAL
EXECUTIVE OFFICES)
---------------
COPIES TO:
GARY PAUL COOPERSTEIN, ESQ.
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
ONE NEW YORK PLAZA
NEW YORK, NEW YORK 10004
(212) 859-8000
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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 to be 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 of 1933, 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 of 1933, 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. [_]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933, OR UNTIL 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>
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included in this registration statement is a combined prospectus relating also
to each of Registration Statement on Form S-3 (No. 33-44327) and Registration
Statement on Form S-3 (No. 33-55153) previously filed by El Paso Natural Gas
Company and declared effective. This registration statement, which is a new
registration statement, also constitutes Post-Effective Amendment No. 4 to the
Registration Statement on Form S-3 (No. 33-44327) and Post-Effective Amendment
No. 2 to Registration Statement on Form S-3 (No. 33-55153), and each such
Post-Effective Amendment shall hereafter become effective concurrently with
the effectiveness of this registration statement and in accordance with
Section 8(c) of the Securities Act of 1933. This registration statement and
the registration statements amended hereby are collectively referred to herein
as the "Registration Statement".
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION DATED OCTOBER 31, 1996
PROSPECTUS
EL PASO NATURAL GAS COMPANY
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
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El Paso Natural Gas Company ("EPG" or the "Company") may offer and sell from
time to time in one or more series its (i) unsecured debt securities consisting
of notes, debentures or other evidences of indebtedness (the "Debt
Securities"), (ii) shares of preferred stock, $.01 par value (the "Preferred
Stock"), and (iii) shares of common stock, $3.00 par value (the "Common
Stock"). The Debt Securities, the Preferred Stock and the Common Stock offered
hereby are collectively hereinafter referred to as the "Securities". The
Securities will be limited to an aggregate initial public offering price not to
exceed $800,000,000, or, in the case of 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 supplement to this Prospectus (a "Prospectus Supplement").
Certain specific terms of the particular Securities in respect of which this
Prospectus is being delivered will be set forth in a related Prospectus
Supplement, including, where applicable, (i) in the case of 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 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, if any, provisions regarding
registration of transfer or exchange, the proceeds to EPG 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, voting and
other rights, the initial public offering price and other special terms; and
(iii) in the case of Common Stock, the terms of the offering and sales thereof.
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 , 1996
<PAGE>
AVAILABLE INFORMATION
EPG 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 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.
Such material also may be accessed electronically by means of the Commission's
home page on the Internet at http://www.sec.gov. EPG's Common Stock is listed
on the New York Stock Exchange, and reports, proxy statements and other
information concerning EPG may be inspected at the offices of the New York
Stock Exchange, 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 EPG 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 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,
1995 (the "Form 10-K");
2. EPG's Quarterly Report on Form 10-Q for the quarterly periods ended March
31, 1996, as amended pursuant to a Form 10-Q/A filed May 15, 1996, and June
30, 1996;
3. The portions of EPG's Proxy Statement on Schedule 14A for the Annual
Meeting of Stockholders held on April 30, 1996 that have been incorporated
by reference into the Form 10-K;
4. EPG's Current Reports on Form 8-K dated May 2, 1996, June 28, 1996 and
October 22, 1996; and
5.EPG's Registration Statement on Form 8-A filed with respect to the Common
Stock, as amended to date.
All documents filed by EPG 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. 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.
EPG 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 Natural Gas Company,
One Paul Kayser Center, 100 North Stanton Street, El Paso, Texas 79901
(telephone (915) 541-2600).
2
<PAGE>
THE COMPANY
GENERAL
EPG is a Delaware corporation which was incorporated in 1928. In recognition
of changes in the natural gas industry and the manner in which EPG manages its
businesses, and in order to facilitate a more detailed understanding of the
various activities in which it engages, EPG began doing business under the
name El Paso Energy Corporation (effective April 22, 1996) and has segregated
its business activities into three business segments: (i) natural gas
transmission, (ii) field and merchant services, and (iii) corporate and other.
The natural gas transmission segment includes one of the nation's largest
mainline natural gas transmission systems, connecting natural gas supply
regions in New Mexico, Texas, Oklahoma, and Colorado to markets in California,
Nevada, Arizona, New Mexico, Texas, and northern Mexico. The transmission
system consists of approximately 10,000 miles of pipeline and is connected to
one of the most prolific supply basins in the nation, the San Juan Basin of
northern New Mexico and southern Colorado.
The field and merchant services segment provides field services, including
gathering, products extraction, dehydration, purification and compression. In
addition, the field and merchant services segment purchases, markets and
trades natural gas, natural gas liquids, power and other energy commodities,
and provides risk management activities associated with these commodities.
This segment has approximately 7,900 miles of gathering lines and 64,000
horsepower of compression located in the San Juan, Anadarko and Permian
Basins, and in East Texas and Louisiana.
The corporate and other segment includes El Paso Energy International,
through which EPG conducts its international activities, and other corporate
activities.
EPG's principal executive offices are located at One Paul Kayser Center, 100
North Stanton Street, El Paso, Texas 79901, and its telephone number at that
address is (915) 541-2600. Upon consummation of the Merger (as defined below),
if it occurs, EPG's principal executive offices will be located at 1010 Milam
Street, Houston, Texas, and its telephone number at that address will be (713)
757-2131.
THE TENNECO MERGER
On June 19, 1996, EPG, El Paso Merger Company, an indirect wholly owned
subsidiary of EPG ("El Paso Subsidiary"), and Tenneco Inc. ("Tenneco") entered
into a definitive merger agreement (as amended and supplemented from time to
time, the "Merger Agreement"), pursuant to which El Paso Subsidiary will be
merged with and into Tenneco (the "Merger"). Prior to the Merger, Tenneco and
its subsidiaries will undertake various intercompany transfers and
distributions designed to restructure, divide and separate their existing
businesses, assets and liabilities so that all the assets, liabilities and
operations related to their automotive parts, packaging and administrative
services businesses and their shipbuilding business will be spun-off to
Tenneco's common stockholders (the "Distributions"). The remaining existing
and discontinued operations of Tenneco, consisting primarily of those
operations related to the transmission and marketing of natural gas (the
"Energy Business"), will continue to be owned by Tenneco.
The Merger is conditioned upon, among other things, the receipt of tax
rulings stating that the Distributions and the Merger are tax-free, completion
of a debt realignment plan by Tenneco, certain government approvals and
approval of Tenneco's stockholders.
Consideration to be paid by El Paso in the Merger will consist of:
. the retention of approximately $2.65 billion of debt less
approximately $275 million of new preferred stock obligations of
Tenneco following the Merger, subject to certain adjustments;
. the issuance of EPG equity securities valued at approximately $750
million, based on the June 18, 1996 closing price of $34.875 per
share of Common Stock, to Tenneco's existing common and preferred
stockholders, subject to the formulas set forth in the Merger
Agreement; and
. the retention of approximately $600 million of estimated assumed
liabilities related to certain discontinued businesses of Tenneco.
3
<PAGE>
The proposed issuance by EPG (the "Merger Stock Issuance") of up to
23,894,862 shares of Common Stock to Tenneco stockholders in connection with
the transactions contemplated by the Merger Agreement is being submitted for
approval of EPG's stockholders at a special meeting presently scheduled to be
held on , 1996. If the Merger Stock Issuance is not approved, the Merger
is still expected to be consummated but EPG will issue to Tenneco stockholders
7,000,000 shares of Common Stock, with the balance of the equity consideration
to consist of depositary shares, each representing a fractional interest in a
whole share of a new series of EPG voting preferred stock. Tenneco's
stockholders are being asked to vote on a significant reorganization of
Tenneco, of which the Merger and the Distributions are parts, at a special
meeting to be held on , 1996.
There can be no assurance that the Merger Stock Issuance will be approved.
Furthermore, although EPG believes that all the conditions to the Merger will
be satisfied, there can be no assurance that such conditions will be satisfied
and that the Merger will be consummated.
For further information regarding the Merger and the various transactions to
be undertaken in connection therewith, see EPG's Current Report on Form 8-K,
dated October 22, 1996 (the "October Form 8-K"), which Current Report is
incorporated herein by reference.
USE OF PROCEEDS
Unless otherwise specified in a Prospectus Supplement, the net proceeds from
the sale of the Securities will be used for general corporate purposes.
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 JUNE 30, YEAR ENDED DECEMBER 31,
-------------- -----------------------------
1996 1995 1994 1993 1992 1991
-------------- ----- ----- ----- ----- -----
<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..................... -- (a) 2.51x 2.87x 3.04x 2.73x 2.86x
</TABLE>
- --------
(a) Earnings for the six months ended June 30, 1996 were inadequate to cover
fixed charges by $18 million due to a special charge for employee separation
and asset impairments of $99 million pre-tax.
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 EPG has no outstanding preferred stock or
preference stock and, therefore, no dividend requirements.
For purposes of calculating these ratios: (i) "fixed charges" represent
interest expense (exclusive of interest on rate refunds), amortization of debt
costs and the portion of rental expense representing the interest factor; 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 and the portion of rental expense representing the
interest factor.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities offered hereby will represent unsecured obligations of
EPG. The Debt Securities offered hereby will be issued under an Indenture
dated as of , 1996 (the "Indenture"), between EPG and The Chase Manhattan
Bank, as trustee (the "Trustee"). The Indenture does not limit the aggregate
principal amount of Debt Securities that may be issued thereunder from time to
time in one or more series.
4
<PAGE>
The terms of the Debt Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). The Debt Securities are subject
to all such terms, and holders of Debt Securities are referred to the
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 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 Indenture, including the definitions therein of certain
terms, a copy of which 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 Indenture.
GENERAL
Reference is made to the Prospectus Supplement relating to the particular
series offered thereby for the terms of such Debt Securities, including where
applicable: (a) the form and title of the Debt Securities; (b) the aggregate
principal amount of the Debt Securities; (c) the date or dates on which the
Debt Securities may be issued; (d) the date or dates on which the principal of
and premium, if any, on the Debt Securities shall be payable; (e) the rate or
rates (which may be fixed or variable) at which the 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 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 Debt
Securities may be redeemed at the option of EPG 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 Debt Securities of the series shall be issuable;
(k) if other than the principal amount thereof, the portion of the principal
amount of the Debt Securities which shall be payable upon declaration of the
acceleration of the maturity thereof in accordance with the provisions of the
Indenture; (l) whether payment of the principal of and premium, if any, and
interest, if any, on the 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 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 Debt Securities that
differ from those set forth in the Indenture; (o) whether the Debt Securities
will be convertible; (p) whether the 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; and (q) any other terms not inconsistent
with the Indenture.
If any 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 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 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 Debt Securities offered hereby will be issued only in fully registered
form in denominations of $1,000 or any integral multiple thereof. The 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 Debt Securities. See "--Global Debt
Securities".
One or more series of 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
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<PAGE>
Federal income tax consequences and special considerations applicable to any
such series of Debt Securities will be described generally in the Prospectus
Supplement relating thereto.
GLOBAL DEBT SECURITIES
The 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") 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 Debt Securities in
individually certificated form, a global Debt Security may not be transferred
except as a whole to a nominee of the Depositary for such global 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.
The specific terms of the depositary arrangement with respect to a series of
Debt Securities and the rights of, and limitations on, owners of beneficial
interests in a global Debt Security representing all or a portion of a series
of Debt Securities will be described in the Prospectus Supplement relating to
such series.
CERTAIN COVENANTS
Limitations on Liens. The Indenture provides that EPG 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 Indenture or
thereafter acquired, to secure any Debt (as defined below) of EPG or any other
Person (as defined below) (other than the Debt Securities issued thereunder),
without in any such case making effective provision whereby all of the 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 EPG or any Restricted
Subsidiary in existence on the date of the Indenture or created pursuant to
an "after-acquired property" clause or similar term in existence on the
date of the Indenture or any mortgage, pledge agreement, security agreement
or other similar instrument in existence on the date of the Indenture;
(ii) any Lien upon any property or assets created at the time of
acquisition of such property or assets by EPG 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 EPG or any Restricted Subsidiary (whether or
not the obligations secured thereby are assumed by EPG 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 EPG or any Restricted Subsidiary of obligations
secured by any Lien existing at the time of the acquisition by EPG 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 EPG 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;
6
<PAGE>
(ix) any Lien in favor of EPG or any Restricted Subsidiary;
(x) any Lien created or assumed by EPG 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 EPG 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, 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 Indenture, EPG 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 EPG or any Person (other
than the Debt Securities) that is not excepted by clauses (i) through (xiv),
inclusive, above without securing the Debt Securities issued under the
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 Indenture provides that EPG 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) EPG 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 Debt Securities; or (iv) EPG 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 (as defined below) of EPG or any
Subsidiary, or (B) investment in another Principal Property.
Notwithstanding the foregoing, under the Indenture, EPG 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 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.
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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 EPG and its consolidated subsidiaries for EPG's most recently
completed fiscal quarter, prepared in accordance with generally accepted
accounting principles.
"Debt" means, generally, 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 EPG 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 EPG 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 EPG 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.
"Principal Property" means (a) any pipeline assets of EPG or any Subsidiary,
including any related facilities employed in the transportation, distribution,
or marketing of natural gas that are located in the United States or Canada,
and (b) any processing or manufacturing plant owned or leased by EPG 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
EPG's Board of Directors, is not material in relation to the activities of EPG
and its Subsidiaries as a whole.
"Restricted Subsidiary" means any Subsidiary of EPG 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.
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CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indenture provides that EPG may, without the consent of the Trustee or
the holders of any 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 EPG 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 Debt Securities and the performance and observance of any covenant and
condition of the Indenture on the part of EPG to be performed or observed,
(ii) immediately after giving effect to the transaction, no Default or Event
of Default exists, and (iii) EPG has delivered the Officer's Certificate and
Opinion of Counsel required by the Indenture. Any such successor Person shall
succeed to and be substituted for, and may exercise every right and power of,
EPG under the Indenture with the same effect as if it had been named a party
in the Indenture and EPG shall, except in the case of a lease, be released and
discharged from all its obligations under the Debt Securities and the
Indenture.
EVENTS OF DEFAULT
An "Event of Default" will occur under the Indenture with respect to Debt
Securities of a particular series issued thereunder if: (a) EPG shall fail to
pay the principal of, or premium, if any, on, such series at its maturity; (b)
EPG shall fail to pay when due any interest on such series and such default
shall continue for a period of 30 days; (c) EPG shall fail to perform or shall
breach any other term, covenant or warranty contained in the Indenture with
respect to such series for a period of 60 days after written notice thereof,
as provided in the Indenture; (d) certain events of bankruptcy shall have
occurred; or (e) any other Event of Default applicable to such series occurs.
The Indenture provides that if an Event of Default with respect to a series
of Debt Securities issued thereunder shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in principal amount of
Debt Securities of such series then outstanding may declare the principal
amount of all Debt Securities of such series to be due and payable immediately
upon giving written notice as provided in the Indenture. The Indenture
provides that the holders of a majority in principal amount of 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 Debt Securities of a series
may waive past defaults with respect to such series and its consequences
(except a continuing default in the payment of principal of and premium, if
any, or interest, if any, on any series of Debt Securities or a default in
respect of any covenant or provision of the Indenture which cannot be modified
or amended by a supplemental indenture without the consent of the holder of
each outstanding Debt Security affected thereby).
Pursuant to the Indenture, the holders of a majority in aggregate principal
amount of all affected series of 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 Trustee or exercising any trust or
power conferred on the Trustee, provided that such direction shall not be in
conflict with any rule of law or the Indenture. Before proceeding to exercise
any right or power under the Indenture at the direction of any holders, the
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 Indenture, EPG is required to furnish to the Trustee
annually an Officer's Certificate to the effect that to the best of such
officer's knowledge, EPG is not in default in the performance of the terms,
provisions and conditions of the Indenture or, if such officer has knowledge
that EPG is in default, specifying such default. The Indenture requires the
Trustee to give to all holders of Debt Securities outstanding thereunder
notice of any Default by EPG in the manner provided in the 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 Debt Securities outstanding thereunder, the 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
Trustee in good faith determine that withholding such notice is in the
interest of the holders of such outstanding Debt Securities.
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SATISFACTION AND DISCHARGE; LEGAL AND COVENANT DEFEASANCE
Under the terms of the Indenture, EPG may satisfy and discharge certain
obligations to holders of Debt Securities of any series which have not already
been delivered to the 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 Trustee funds in an amount sufficient to pay the principal
and any premium and interest to the date of such deposit (in case of 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 Indenture with respect to such Debt
Securities, and (iii) delivering to the Trustee an Officer's Certificate and
Opinion of Counsel relating to such satisfaction and discharge.
The Indenture also provides that EPG and any other obligor, if any, will be
discharged from any and all obligations in respect of any series of Debt
Securities issued thereunder (excluding, however, certain obligations, such as
the obligation to register the transfer or exchange of such outstanding 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 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 Indenture and the outstanding Debt Securities of such
series or on any Redemption Date established pursuant to clause (iii) below,
(ii) EPG's receipt of an Opinion of Counsel based on the fact that (A) EPG has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (B) since the date of the 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 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 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 Indenture or provision therefor satisfactory to the
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) EPG's delivery
to the Trustee of an Officer's Certificate and an Opinion of Counsel, each
stating that the conditions precedent under the Indenture have been complied
with.
Under the Indenture, EPG also may discharge its obligations referred to
above under "--Certain Covenants" and "--Consolidation, Merger and Sale of
Assets", as well as certain of its obligations relating to reporting
obligations under the Indenture, in respect of any series of 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 Debt Securities and the delivery of
an Opinion of Counsel confirming that the holders of the 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 Indenture does not contain provisions requiring redemption of the Debt
Securities issued thereunder, or adjustment to any terms of such Debt
Securities, upon any change in control of EPG.
Other than the limitations on Liens and the restriction on Sale-Leaseback
Transactions described above under "--Certain Covenants", the Indenture does
not contain any covenant or other provisions designed to afford holders of the
Debt Securities issued thereunder protection in the event of a highly
leveraged transaction involving EPG.
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MODIFICATION OF THE INDENTURE
The Indenture provides that EPG and the Trustee may enter into supplemental
indentures without the consent of the holders of Debt Securities issued
thereunder to: (a) secure any of such Debt Securities, (b) evidence the
succession of another Person to EPG under the Indenture and the Debt
Securities and the assumption by such successor Person of the obligations of
EPG thereunder; (c) add covenants and Events of Default for the benefit of the
holders of all or any series of such Debt Securities or to surrender any right
or power conferred by the Indenture upon EPG; (d) add to, change or eliminate
any of the provisions of the Indenture, provided that any such addition,
change or elimination shall become effective only after there are no such Debt
Securities of any series entitled to the benefit of such provision
outstanding; (e) establish the forms or terms of the Debt Securities of any
series issued thereunder; (f) cure any ambiguity or correct any inconsistency
in the Indenture; (g) evidence the acceptance of appointment by a successor
trustee; and (h) qualify the Indenture under the Trust Indenture Act.
The Indenture also contains provisions permitting EPG and the Trustee, with
the consent of the holders of a majority in aggregate principal amount of all
outstanding Debt Securities affected by such supplemental indenture (voting as
one class), to add any provisions to, or change in any manner or eliminate any
of the provisions of, the Indenture, or modify in any manner the rights of the
holders of such Debt Securities, provided that EPG and the Trustee may not,
without the consent of the holder of each outstanding 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 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 Debt Securities
required for any such supplemental indenture or for any waiver provided for in
the Indenture, (c) change EPG's obligation to maintain an office or agency for
payment of Debt Securities and the other matters specified therein or (d)
modify any of the provisions of the Indenture relating to the execution of
supplemental indentures with the consent of holders of 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
Indenture cannot be modified or waived without the consent of the holder of
each outstanding Debt Security affected thereby.
NO PERSONAL LIABILITY OF OFFICERS, DIRECTORS, EMPLOYEES OR STOCKHOLDERS
No director, officer, employee or stockholder, as such, of EPG or any of its
affiliates shall have any personal liability in respect of the obligations of
EPG under the Indenture or the Debt Securities by reason of his, her or its
status as such.
APPLICABLE LAW
The Indenture is, and the Debt Securities offered hereby will be, governed
by, and construed in accordance with, the laws of the State of New York.
CONCERNING THE TRUSTEE
The Indenture provides that, except during the continuance of an Event of
Default, the Trustee will perform only such duties as are specifically set
forth in the Indenture. If an Event of Default has occurred and is continuing,
the Trustee will use the same degree of care and skill in its exercise of the
rights and powers vested in it by the Indenture as a prudent person would
exercise under the circumstances in the conduct of such person's own affairs.
The Indenture contains limitations on the rights of the Trustee, should it
become a creditor of EPG, 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 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 Trustee
under the Indenture. EPG maintains banking and other commercial relationships
with The Chase Manhattan Bank in the ordinary course of business.
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DESCRIPTION OF CAPITAL STOCK
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) EPG's Restated Certificate
of Incorporation, as amended (the "EPG Charter"), and the Shareholder Rights
Agreement, dated as of July 7, 1992, between EPG and The First National Bank
of Boston, 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
EPG currently is authorized by the EPG Charter to issue up to 100,000,000
shares of Common Stock and up to 25,000,000 shares of Preferred Stock. As of
September 30, 1996, there were issued and outstanding 36,212,026 shares of
Common Stock and no shares of Preferred Stock.
COMMON STOCK
EPG currently is authorized by the EPG Charter to issue up to 100,000,000
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 EPG out of funds
legally available therefor. In the event of a liquidation, dissolution, or
winding up of EPG, 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 EPG's Common Stock is The First
National Bank of Boston.
PREFERRED STOCK
EPG's Board of Directors, without any further action by the stockholders of
EPG, 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 delaying, deterring, or preventing a change in control of
EPG. 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;
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(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
EPG;
(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 EPG, 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 Preferred Stock is outstanding.
Pursuant to the Shareholder Rights Agreement, the Board of Directors of EPG
has designated the Series A Preferred Stock (as defined below).
EPG is currently seeking approval from its stockholders to issue up to
23,894,862 shares of Common Stock (i.e., the Merger Stock Issuance) in
connection with the Merger. If the Merger Stock Issuance is not approved by
the stockholders of EPG, the Merger is still expected to be consummated, but
common stockholders and certain preferred stockholders of Tenneco will receive
an aggregate of 7,000,000 shares of Common Stock plus depositary shares
representing interests in shares of a new series of Preferred Stock to be
designated the Adjustable Rate Cumulative Preferred Stock, $.01 par value per
share (the "AR Preferred Stock"). Each share of AR Preferred Stock will
entitle the holder thereof to 15 votes per share on all matters submitted to a
vote at any meeting of EPG stockholders. In addition, the EPG Charter provides
that holders of Preferred Stock of EPG, including the holders of Series A
Preferred Stock and AR Preferred Stock, shall have the right to vote together
as a class to elect two directors of EPG during any period that dividends on
such stock are in arrears in an amount equal to six quarterly dividend
payments.
SHAREHOLDER RIGHTS AGREEMENT
In July 1992, EPG's Board of Directors declared a dividend distribution of
one right (a "Right") for each share of Common Stock then outstanding. All
shares of Common Stock issued subsequently also include these Rights. Under
certain conditions, each Right may be exercised to purchase from EPG one one-
hundredth of a share of a series of EPG's Preferred Stock, designated as
Series A Junior Participating Preferred Stock, $.01 par value (the "Series A
Preferred Stock"), at a price of $75 per one one-hundredth of a share, subject
to adjustment.
The EPG Charter provides that the holders of Series A Preferred Stock are
entitled to 100 votes per share on all matters submitted to a vote of the
stockholders of EPG, 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 EPG as described above.
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The Rights are exercisable only if, without the prior consent of EPG'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 EPG or commences or announces a tender or exchange offer,
after consummation of which such person or group would beneficially own 15% or
more of EPG's voting securities. If, after the Rights become exercisable, EPG
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 EPG, or if, during any period of
such ownership, there shall be any reclassification of securities or
recapitalization of EPG, or any merger or consolidation of EPG 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 EPG or any of its subsidiaries which is directly or indirectly
owned by such person, then 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
EPG 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 EPG 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
EPG.
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
EPG 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. 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.
EPG'S RESTATED CERTIFICATE OF INCORPORATION
The EPG Charter contains provisions applicable to a merger, consolidation,
asset sale, liquidation, recapitalization, or certain other business
transactions, including the issuance of stock of EPG ("Business
Combinations"). The EPG Charter requires the affirmative vote of 51% or more
of the voting stock of EPG, excluding any voting stock held by an interested
stockholder (defined in the EPG 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 EPG, 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 EPG Charter
14
<PAGE>
also requires the dissemination to stockholders of a proxy or information
statement describing the Business Combination.
The EPG Charter also prohibits the taking of any action by written
stockholder consent in lieu of a meeting and the subsequent amendment of the
EPG Charter to repeal or alter the above provisions without the affirmative
vote of 51% of EPG's voting stock, excluding voting stock held by any
interested stockholder.
PLAN OF DISTRIBUTION
EPG may offer or sell Securities 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 Securities directly to one or
more other purchasers. EPG may sell Securities as soon as practicable after
effectiveness of the Registration Statement of which this Prospectus is a
part.
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 EPG from the sales; and (vi) 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 Securities may be offered and sold by EPG directly or through agents
designated by EPG 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 EPG, to indemnification by EPG 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, EPG in the ordinary course of business.
If so indicated in the Prospectus Supplement relating to a particular series
of Securities, EPG will authorize underwriters, dealers, or agents to solicit
offers by certain institutions to purchase Securities of such series pursuant
to delayed delivery contracts providing for payment and delivery at a future
date. Such contracts will be subject only to those conditions set forth in the
related Prospectus Supplement and such Prospectus Supplement will set forth
the commission payable for solicitation for such contracts.
Other than Common Stock, all Securities offered will be a new issue of
securities with no established trading market. Any underwriter to whom
Securities are sold by EPG 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 on the New York Stock
Exchange. Any Common Stock sold pursuant to a Prospectus Supplement will be
listed on the New York Stock Exchange, subject to official notice of issuance.
No assurance can be given as to the liquidity of or the trading markets for
any Securities.
15
<PAGE>
LEGAL MATTERS
The validity of the Securities will be passed upon for EPG by Fried, Frank,
Harris, Shriver & Jacobson (a partnership including professional
corporations), New York, New York. 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 schedules of
EPG as of December 31, 1995 and 1994, and for the years ended December 31,
1995, 1994, and 1993, incorporated by reference in this Prospectus, have been
incorporated herein in reliance on the report of Coopers & Lybrand L.L.P.,
independent accountants, given on the authority of such firm as experts in
accounting and auditing.
The following financial statements and schedules are included or
incorporated by reference in EPG's preliminary proxy materials (the
"Preliminary Joint Proxy Statement-Prospectus"), which has been filed as an
exhibit to the October Form 8-K, which October Form 8-K is incorporated by
reference in this Prospectus (each of the following capitalized terms has the
meaning assigned to it in the Preliminary Joint Proxy Statement-Prospectus):
(i) (A) the Businesses of Tenneco Energy, (B) the Businesses of New
Tenneco, and (C) the Businesses of Newport News, each of which, to the
extent and for the periods indicated in their reports, have been audited by
Arthur Andersen LLP, independent public accountants, and are incorporated
herein by reference in reliance upon the authority of said firm as experts
in accounting and auditing in giving said reports; and
(ii) the combined financial statements of Mobil Plastics Division of
Mobil Oil Corporation for the period December 29, 1994 to November 17, 1995
and the year ended December 28, 1994, included in the Preliminary Joint Proxy
Statement-Prospectus of El Paso Natural Gas Company which was included as an
Exhibit to the Current Report of El Paso Natural Gas Company on Form 8-K dated
October 22, 1996, which is incorporated by reference herein have been audited
by Ernst & Young LLP, independent auditors, as set forth in their reports
thereon included therein. Such financial statements have been incorporated
herein by reference in reliance upon such reports given upon the authority of
such firm as experts in accounting and auditing.
16
<PAGE>
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 EPG 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.................. $258,336
Blue Sky expenses, including legal fees.............................. *
Printing and engraving expenses...................................... *
Legal fees and expenses.............................................. *
Rating agency fees................................................... *
Accounting fees and expenses......................................... *
Trustee's fees and expenses.......................................... *
Miscellaneous........................................................ *
--------
Total.............................................................. $ *
========
</TABLE>
- --------
* To be completed by amendment.
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 EPG's By-laws require 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 EPG 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 EPG or that, being or having been such a director or officer or an
employee of EPG, such person is or was serving at the request of EPG 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 EPG also provide that EPG 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 dividends or unlawful stock purchases or redemptions, or
(iv) any transaction from which the director derived an improper personal
benefit.
II-1
<PAGE>
Article 10 of EPG's Restated Certificate of Incorporation, as amended,
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 EPG shall not be
liable to EPG 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 EPG for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
EPG maintains directors' and officers' liability insurance which provides
for payment, on behalf of the directors and officers of EPG 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 EPG and/or its subsidiaries, as the case may be.
Reference is made to Exhibits 1.1 and 1.2 hereto, respectively, which
contain provisions for indemnification of EPG, 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>
EXHIBITNO. EXHIBIT
---------- -------
<C> <C> <S>
1.1 -- Form of EPG Debt Securities Underwriting Agreement
1.2 -- Form of EPG Equity Securities Underwriting Agreement
+2.1 -- Agreement and Plan of Merger, dated as of June 19, 1996, as
such may be amended from time to time, among EPG, El Paso
Merger Company and Tenneco Inc.
+2.2 -- Agreement, dated June 19, 1996, between EPG and Tenneco Inc.,
relating to consulting services
4.1 -- Form of Indenture between EPG and The Chase Manhattan Bank,
as Trustee
4.2 -- Restated Certificate of Incorporation of EPG (incorporated by
reference to Exhibit 3.A of EPG's Form 10-K for the fiscal
year ended December 31, 1991, file no. 1-2700, filed January
29, 1992); Certificate of Designation, Preferences and Rights
of Series A Junior Participating Preferred Stock of EPG,
dated July 7, 1992 (incorporated by reference to Exhibit
3.A.1 of EPG's Form 10-K for the fiscal year ended December
31, 1992, file no. 1-2700, filed February 3, 1993)
4.3 -- By-laws of EPG, as amended April 1, 1996 (incorporated by
reference to Exhibit 3(ii) of EPG's Form 10-Q for the quarter
ended March 31, 1996, file no. 1-2700, filed May 15, 1996)
4.4 -- Shareholder Rights Agreement, dated as of July 7, 1992,
between EPG and The First National Bank of Boston, as Rights
Agent (incorporated by reference to Exhibit 4 of EPG's Form
10-Q for the quarter ended September 30, 1992, file no. 1-
2700, filed November 12, 1992)
+5 -- Opinion of Fried, Frank, Harris, Shriver & Jacobson as to the
legality of the Securities
*12 -- 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 Coopers & Lybrand L.L.P.
23.2 -- Consent of Arthur Andersen LLP
23.3 -- Consent of Arthur Andersen LLP
23.4 -- Consent of Ernst & Young LLP
+23.5 -- Consent of Fried, Frank, Harris, Shriver & Jacobson (included
in Exhibit 5)
*24 -- Powers of Attorney
*25 -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of the Trustee
</TABLE>
- --------
*Previously filed.
+To be filed by amendment.
II-2
<PAGE>
ITEM 17. UNDERTAKINGS
A.The undersigned Registrant hereby undertakes:
(1)To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(a)To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b)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; and
(c)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(1)(a) and A(1)(b) 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 Registration hereby undertakes that, for purposes of
determining any liability under the Securities Act, such filing of EPG's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
C.Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the provisions described in Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the
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
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-3
<PAGE>
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 be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of El Paso, State of Texas, on October 31, 1996.
EL PASO NATURAL GAS COMPANY
/s/ H. Brent Austin
By :_________________________________
H. Brent Austin
Executive Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No.1 to the Registration Statement has been signed below by the
following persons in the capacities and on the dates as indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
*
____________________________________ Chairman of the Board, October 31, 1996
William A. Wise Chief Executive Officer
and Director
/s/ H. Brent Austin Executive Vice President October 31, 1996
____________________________________ and Chief Financial Officer
H. Brent Austin
*
____________________________________ Vice President, Chief October 31, 1996
Jeffrey I. Beason Accounting Officer,
Controller and Treasurer
*
____________________________________ Director October 31, 1996
Byron Allumbaugh
*
____________________________________ Director October 31, 1996
Eugenio Garza Laguera
*
____________________________________ Director October 31, 1996
James F. Gibbons
*
____________________________________ Director October 31, 1996
Ben F. Love
____________________________________ Director October 31, 1996
Kenneth L. Smalley
*
____________________________________ Director October 31, 1996
Malcolm Wallop
*By: /s/ H. Brent Austin
____________________________________
H. Brent Austin
Attorney-in-Fact
</TABLE>
II-4
<PAGE>
LIST OF EXHIBITS
<TABLE>
<CAPTION>
PAGE
EXHIBIT NO. EXHIBIT NO.
----------- ------- ----
<C> <C> <S> <C>
1.1 -- Form of EPG Debt Securities Underwriting Agreement
1.2 -- Form of EPG Equity Securities Underwriting Agreement
+2.1 -- Agreement and Plan of Merger, dated as of June 19,
1996, as such may be amended from time to time, among
EPG, El Paso Merger Company and Tenneco Inc.
+2.2 -- Agreement, dated June 19, 1996, between EPG and
Tenneco Inc., relating to consulting services
4.1 -- Form of Indenture between EPG and The Chase Manhattan
Bank, as Trustee
4.2 -- Restated Certificate of Incorporation of EPG
(incorporated by reference to Exhibit 3.A of EPG's
Form 10-K for the fiscal year ended December 31, 1991,
file no. 1-2700, filed January 29, 1992); Certificate
of Designation, Preferences and Rights of Series A
Junior Participating Preferred Stock of EPG, dated
July 7, 1992 (incorporated by reference to Exhibit
3.A.1 of EPG's Form 10-K for the fiscal year ended
December 31, 1992, file no. 1-2700, filed February 3,
1993)
4.3 -- By-laws of EPG, as amended April 1, 1996 (incorporated
by reference to Exhibit 3(ii) of EPG's Form 10-Q for
the quarter ended March 31, 1996, file no. 1-2700,
filed May 15, 1996)
4.4 -- Shareholder Rights Agreement, dated as of July 7,
1992, between EPG and The First National Bank of
Boston, as Rights Agent (incorporated by reference to
Exhibit 4 of EPG's Form 10-Q for the quarter ended
September 30, 1992, file no. 1-2700, filed November
12, 1992)
+5 -- Opinion of Fried, Frank, Harris, Shriver & Jacobson as
to the legality of the Securities
*12 -- 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 Coopers & Lybrand L.L.P.
23.2 -- Consent of Arthur Andersen LLP
23.3 -- Consent of Arthur Andersen LLP
23.4 -- Consent of Ernst & Young LLP
+23.5 -- Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5)
*24 -- Powers of Attorney
*25 -- Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of the Trustee
</TABLE>
- --------
*Previously filed.
+To be filed by amendment.
<PAGE>
EXHIBIT 1.1
EL PASO NATURAL GAS COMPANY
(A DELAWARE CORPORATION)
(TITLE OF DEBT SECURITIES)
TERMS AGREEMENT
Dated: ( ) , 199( )
El Paso Natural Gas Company
One Paul Kayser Center
100 North Stanton Street
El Paso, Texas 79901
Dear Sirs:
We (the "Representative(s)") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
El Paso Natural Gas Company, a Delaware corporation (the "Company"), proposes
to issue and sell $( ) aggregate principal amount of its (Title of Debt
Securities) (the "Debt Securities"). The Debt Securities will be issued
pursuant to the provisions of an Indenture dated as of ( ), 1996 (the
"Indenture"), between the Company and The Chase Manhattan Bank, as Trustee
(the "Trustee").
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell and the Underwriters agree to
purchase, severally and not jointly, the respective principal amounts of Debt
Securities set forth below opposite their names at the (respective) purchase
price(s) set forth below.
<TABLE>
<CAPTION>
UNDERWRITER PRINCIPAL AMOUNT OF DEBT SECURITIES
----------- -----------------------------------
<S> <C>
$
------------
Total............................. $
============
</TABLE>
The Debt Securities shall have the terms set forth in the Prospectus dated
( ), 199( ), and the Prospectus Supplement dated ( ),
199( ), including the following:
Title:
(Currency: )
Principal Amount to be Issued:
Maturity Date:
Interest Rate or Formula:
Interest Payment Dates: Each ( ) and ( ), commencing
( ), ( )
1
<PAGE>
Redemption Provisions:
Sinking Fund Requirements:
Delayed Delivery Contracts: (authorized) (not authorized)
(Date of Delivery:
Minimum Contract:
Maximum Aggregate Principal Amount:
Fee: %)
(Initial Public Offering Price: ( )%, plus accrued interest, if any, or
amortized original issue discount, if any, from ( ), 19( ).)
Purchase Price: ( )%, plus accrued interest, if any, or amortized original
issue discount, if any, from ( ), 19( ) (payable in (immediately
available) funds).
Other Terms:
Closing Date and Location:
All provisions contained in the document attached as Annex A hereto entitled
"El Paso Natural Gas Company--Underwriting Agreement Standard Provisions (Debt
Securities)", are hereby incorporated by reference in their entirety and shall
be deemed to be a part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein. Terms defined in such document
are used herein as therein defined.
Please confirm your agreement by having an authorized officer sign a copy of
this Terms Agreement in the space set forth below.
Very truly yours,
(Name(s) of Representative(s))
Acting severally on behalf of
(itself) (themselves) and the
several Underwriters named herein
By: (Name of Lead-Representative)
By: _________________________________
Name:
Title:
Accepted as of the date first above written:
El Paso Natural Gas Company
By: _________________________________
Name:
Title:
2
<PAGE>
ANNEX A
EL PASO NATURAL GAS COMPANY
(A DELAWARE CORPORATION)
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
El Paso Natural Gas Company, a Delaware corporation (the "Company") proposes
to issue and sell up to [$ ] aggregate principal amount of its unsecured
debt securities (the "Debt Securities"), from time to time in one or more
offerings on terms determined at the time of sale. The Debt Securities will be
issued under an Indenture dated as of [ ], 1996, as amended, modified and
supplemented from time to time (the "Indenture"), between the Company and The
Chase Manhattan Bank, as trustee (the "Trustee"). Each issue of Debt
Securities may vary as to the aggregate principal amount, maturity date,
interest rate or formula and timing of payment thereof, redemption provisions,
conversion provisions and sinking fund requirements, if any, and any other
variable terms which the Indenture contemplates may be set forth in the Debt
Securities as issued from time to time.
This is to confirm the arrangements with respect to the purchase of Debt
Securities from the Company by the Representative(s) and the several
Underwriters listed in the applicable terms agreement entered into between the
Representative(s) and the Company of which this Underwriting Agreement is
Annex A thereto (the "Terms Agreement"). Terms defined in the Terms Agreement
are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-14617) in respect
of the Debt Securities, shares of the Company's Common Stock, $3.00 par value
per share, and shares of the Company's Preferred Stock, $.01 par value per
share, which registration statement also constitutes a post-effective
amendment to registration statement No. 33-44327, relating to the Company's
debt securities and a post-effective amendment to registration statement No.
33-55153, and has filed such amendments thereto as may have been required to
the date of the Terms Agreement. Such registration statement and such post-
effective amendments, as amended, have been declared effective by the
Commission and the Indenture has been qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"). Such registration statement
and such post-effective amendments, as amended, including all documents
incorporated therein by reference, as from time to time amended or
supplemented pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Securities Act of 1933, as amended (the "Securities
Act"), or otherwise, and any registration statement filed pursuant to Rule
462(b) under the Securities Act are herein collectively referred to as the
"Registration Statement". Such combined prospectus constituting a part of the
Registration Statement and any prospectus subject to completion taken together
with any term sheet meeting the requirements of Rule 434(b) under the
Securities Act, as applicable, are collectively referred to herein as the
"Prospectus"; provided, however, that a supplement to the Prospectus
contemplated by Section 3(a) hereof (a "Prospectus Supplement") shall be
deemed to have supplemented the Prospectus only with respect to the offering
of Debt Securities to which it relates.
1. Representations and Warranties. The Company represents and warrants to
each of the Underwriters named in the Terms Agreement that:
(a) The Registration Statement has become effective under the Securities
Act, no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are pending
before or, to the best of the Company's knowledge, contemplated by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange
1
<PAGE>
Act and the applicable rules and regulations of the Commission thereunder;
(ii) each part of the Registration Statement, when such part became
effective, did not contain, and each such part, as amended or supplemented,
if applicable, will not contain, any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; (iii) the Registration
Statement and the Prospectus comply, and, as amended or supplemented, if
applicable, will comply, in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder; and
(iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this Section
1(b) do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
the Representative(s) expressly for use in the Registration Statement or
Prospectus, or (B) to that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) of the Trustee under
the Trust Indenture Act.
(c) The Company has been duly incorporated and is validly existing in
good standing under the laws of the State of Delaware, has the corporate
power and authority to own its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the assets, business, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole (a "Material Adverse
Effect").
(d) Each significant subsidiary of the Company within the meaning of
Regulation S-K (each hereinafter referred to as a "Subsidiary") has been
duly incorporated and is a corporation duly organized, validly existing in
good standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
Material Adverse Effect.
(e) This Agreement and the Delayed Delivery Contracts, if any, have been
duly authorized, executed and delivered by the Company.
(f) The Indenture has been duly authorized, executed and delivered by the
Company and duly qualified under the Trust Indenture Act and, when duly
executed and delivered by the Trustee, will be a valid and binding
agreement of the Company, enforceable in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency
(including all laws relating to fraudulent conveyance), reorganization,
moratorium and other similar laws of general applicability relating to or
affecting creditors' rights generally and general principles of equity,
regardless of whether enforcement is considered in a proceeding in equity
or at law (collectively, the "Bankruptcy Exceptions").
(g) The Debt Securities being sold pursuant to a Terms Agreement have, as
of the date of such Terms Agreement, been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of such Terms Agreement, will be entitled to the benefits of
the Indenture and will be valid and binding obligations of the Company, in
each case enforceable in accordance with their respective terms, except as
such enforcement may be limited by the Bankruptcy Exceptions; and the Debt
Securities being sold pursuant to a Terms Agreement conform in all material
respects to all descriptions thereof contained in the Prospectus.
(h) Neither the Company nor any Subsidiaries are (i) in violation of
their respective charters or by-laws or (ii) in default in the performance
of any obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any other agreement,
indenture or instrument to
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which the Company or any Subsidiaries is a party or by which the Company or
any Subsidiaries or their respective property is bound, except in the case
of clause (ii) for such violations or defaults as would not, individually
or in the aggregate, have a Material Adverse Effect.
(i) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement, the Indenture and the
Debt Securities will not violate (i) the Restated Certificate of
Incorporation, as amended, or By-laws of the Company, (ii) any provision of
applicable law, (iii) any agreement or other instrument binding upon the
Company or any Subsidiaries, or (iv) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any Subsidiary, except, in the case of clauses (ii) through (iv),
inclusive, for such violations as would not, individually or in the
aggregate, have a Material Adverse Effect. No consent, approval,
authorization or order of or qualification with any U.S. governmental body
or agency is required for the performance by the Company of its obligations
under this Agreement, the Indenture or the Debt Securities, except (x) such
as may be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Debt Securities or (y) where
the failure to obtain such consent, approval, authorization, order or
qualification as would not, individually or in the aggregate, have a
Material Adverse Effect or would not adversely affect the offering of the
Debt Securities as contemplated in the Prospectus Supplement.
(j) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise be
stated in or contemplated by the Registration Statement and Prospectus,
there has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the assets, business,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(k) Other than as set forth or incorporated by reference in the
Registration Statement and Prospectus, there are no legal or governmental
proceedings instituted or, to the best of the Company's knowledge,
threatened against the Company or any Subsidiaries which would restrict the
issuance and sale of the Debt Securities as contemplated by the Prospectus
or which are required under the Securities Act to be disclosed therein and
which are not disclosed. No contract or document of a character required
under the Securities Act to be described in the Registration Statement or
Prospectus or to be filed as an exhibit to the Registration Statement is
not so described or filed as required.
(l) The financial statements, together with related schedules and notes
forming part of the Registration Statement and the Prospectus (and any
amendment or supplement thereto), present fairly in all material respects
the consolidated financial position, results of operations and changes in
financial position of the Company and its consolidated subsidiaries on the
basis stated in the Registration Statement at the respective dates or for
the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and
statistical information and data of the Company (including any pro forma
financial information) set forth in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) is, in all material
respects, accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company.
(m) The Company is not, nor is it directly or indirectly controlled by or
acting on behalf of any person which is, (i) an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, and the
rules and regulations promulgated by the Commission thereunder, or (ii) a
"holding company" within the meaning of, or subject to regulation under,
the Public Utility Holding Company Act of 1935, as amended, and the rules
and regulations promulgated by the Commission thereunder.
(n) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
2. Purchase and Sale. The obligations of the Underwriters to purchase, and
the Company to sell, the Debt Securities shall be evidenced by the Terms
Agreement. The Terms Agreement shall specify the principal amount of Debt
Securities, the names of the Underwriters participating in such offering
(subject to substitution as provided in Section 8 hereof), the principal
amount of Debt Securities which each such Underwriter severally agrees to
purchase, the purchase price to be paid by the Underwriters for the Debt
Securities, the initial public
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offering price, the time and place of delivery and payment, any delayed
delivery arrangements and any other terms of the Debt Securities not already
specified in the Indenture (including, but not limited to, designations,
denominations, interest rates or formulas and payment dates, maturity dates,
conversion provisions, redemption provisions and sinking fund requirements).
The several commitments of the Underwriters to purchase Debt Securities
pursuant to the Terms Agreement shall be deemed to have been made on the basis
of the representations and warranties herein contained and shall be subject to
the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Debt Securities to
be purchased by the Underwriters shall be made at the office of Fried, Frank,
Harris, Shriver & Jacobson, One New York Plaza, New York, New York 10004, or
at such other place as shall be agreed upon by the Representative(s) and the
Company, at (9:00) A.M., New York City time, on the third or fourth business
day (unless otherwise permitted by the Commission pursuant to Rule 15c6-1 of
the Exchange Act, or postponed in accordance with the provisions of Section 8
hereof) following the date of the Terms Agreement or such other time as shall
be agreed upon by the Representative(s) and the Company (each such time and
date being referred to as a "Closing Time"). Payment shall be made to the
Company by wire transfer of immediately available (same-day) funds, against
delivery to the Representative(s) for the respective accounts of the
Underwriters of the Debt Securities to be purchased by them. Certificates for
such Debt Securities shall be in such denominations and registered in such
names as the Representative(s) may request in writing at least two business
days prior to the applicable Closing Time. Such certificates will be made
available for examination and packaging by the Representative(s) on or before
the first business day prior to Closing Time.
If authorized by the Terms Agreement, the Underwriters named therein may
solicit offers to purchase Debt Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts") substantially in the
form of Exhibit A hereto with such changes therein as the Company may approve.
As compensation for arranging Delayed Delivery Contracts, the Company will pay
to the Representative(s) at Closing Time, for the accounts of the
Underwriters, a fee specified in the Terms Agreement for each of the Debt
Securities for which Delayed Delivery Contracts are made at Closing Time as
specified in the Terms Agreement. Any Delayed Delivery Contracts are to be
with institutional investors of the types set forth in the Prospectus
Supplement. At Closing Time, the Company will enter into Delayed Delivery
Contracts (for not less than the minimum principal amount of Debt Securities
per Delayed Delivery Contract specified in the applicable Terms Agreement)
with all purchasers proposed by the Underwriters and previously approved by
the Company as provided below, but not for an aggregate principal amount of
Debt Securities in excess of that specified in the Terms Agreement. The
Underwriters will not have any responsibility for the validity or performance
of Delayed Delivery Contracts.
The Representative(s) shall submit to the Company, at least three business
days prior to Closing Time, the names of any institutional investors with
which it is proposed that the Company will enter into Delayed Delivery
Contracts and the principal amount of Debt Securities to be purchased by each
of them, and the Company will advise the Representative(s), at least two
business days prior to Closing Time, of the names of the institutions with
which the making of Delayed Delivery Contracts is approved by the Company and
the principal amount of Debt Securities to be covered by each such Delayed
Delivery Contract.
The principal amount of Debt Securities to be purchased by the respective
Underwriters pursuant to the Terms Agreement shall be reduced by the principal
amount of Debt Securities covered by Delayed Delivery Contracts, as to each
Underwriter as set forth in a written notice delivered by the
Representative(s) to the Company; provided, however, that the aggregate
principal amount of Debt Securities to be purchased by all Underwriters shall
be the aggregate principal amount of Debt Securities covered by the applicable
Terms Agreement, less the principal amount of Debt Securities covered by
Delayed Delivery Contracts.
3. Covenants of the Company. In further consideration of the agreements of
the Underwriters contained herein, the Company covenants as follows:
(a) Immediately following the execution of the Terms Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal
amount of Debt Securities covered thereby and their terms not otherwise
specified in the Indenture, the names of the Underwriters participating in
the offering and the
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principal amount of Debt Securities which each severally has agreed to
purchase, the price at which the Debt Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, the
selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as the Representative(s) and the
Company deem appropriate in connection with the offering of the Debt
Securities. The Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424 of the
Securities Act and will furnish to the Underwriters named therein as many
copies of the Prospectus and such Prospectus Supplement as the
Representative(s) shall reasonably request.
(b) To furnish to the Representative(s), without charge, one signed copy
of the Registration Statement (including exhibits thereto) and for delivery
to each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in paragraph
(c) below, as many copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto or to the
Registration Statement as the Representative(s) may reasonably request.
(c) At any time when the Prospectus is required by the Securities Act to
be delivered in connection with sales of the Debt Securities, the Company
will give the Representative(s) notice of its intention to file any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus (including any term sheet within the meaning of Rule 434
under the Securities Act ), whether pursuant to the Securities Act, the
Exchange Act or otherwise, and will furnish the Representative(s) with
copies of each such proposed amendment or supplement or other documents
proposed to be filed a reasonable time in advance of filing.
(d) To advise the Representative(s) promptly and, if requested by the
Representative(s), to confirm such advice in writing, (i) of any request by
the Commission for amendments to the Registration Statement or amendments
or supplements to the Prospectus or for additional information, (ii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of the suspension of qualification of the
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for such purposes, and (iii) of the happening of any event
during the period referred to in paragraph (c) above which makes any
statement of a material fact made in the Registration Statement or the
Prospectus untrue or which requires the making of any additions to or
changes in the Registration Statement in order to make the statements
therein not misleading or the Prospectus in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company
will make every reasonable effort to obtain the withdrawal or lifting of
such order at the earliest possible time.
(e) If, at any time when the Prospectus is required by the Securities Act
to be delivered in connection with sales of any of the Debt Securities, any
event shall occur or condition exist as a result of which it is necessary,
in the opinion of counsel for the Underwriters or counsel for the Company,
to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made when
the Prospectus is delivered to a purchaser, not misleading, or if, in the
opinion of either such counsel, it is necessary to amend or supplement the
Prospectus to comply with U.S. laws, [and, if appropriate, foreign laws],
the Company will promptly prepare and file with the Commission and furnish,
at its own expense, to the Underwriters, and to the dealers (whose names
and addresses the Representative(s) will furnish to the Company) to which
Debt Securities may have been sold by the Representative(s) on behalf of
the Underwriters and to any other dealer upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances
under which they were made when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus, as so amended or supplemented,
will comply with such U.S. laws [and, if appropriate, foreign laws].
(f) The Company will endeavor in good faith to qualify the Debt
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative(s) shall reasonably request; provided,
however, that the Company shall not be obligated to file any general
consent to service or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company will maintain
such
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<PAGE>
qualification in effect for so long as may be required for the distribution
of the Debt Securities. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which the Debt
Securities have been qualified as above provided.
(g) With respect to each sale of Debt Securities, the Company will make
generally available to its security holders as soon as practicable an
earnings statement which shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 of the Commission thereunder.
(h) Unless otherwise provided in the Terms Agreement, between the date of
the Terms Agreement and the later of termination of any trading
restrictions and the Closing Time with respect to the Debt Securities
covered thereby (it being understood that the Representative(s) promptly
will notify the Company as to the termination of trading restrictions on
such Debt Securities), the Company will not, without the Representative(s')
prior consent, offer to sell, enter into any agreement to sell, or
guarantee any new issue of Debt Securities with a maturity of more than ( )
year(s), including additional Debt Securities (other than INSERT AGREED
UPON EXCEPTIONS).
(i) To use its reasonable efforts to do and perform all things required
or necessary to be done and performed under this Agreement by the Company
prior to the Closing Time and to satisfy all conditions precedent to the
delivery of the Debt Securities.
4. Conditions to Closing. The several obligations of the Underwriters to
purchase Debt Securities pursuant to the Terms Agreement are subject to the
following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct at the applicable Closing Time
with the same force and effect as if made on and as of such Closing Time.
(b) As of the applicable Closing Time, there shall not have been, since
the date of the Terms Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, as
amended and supplemented,
(i) any downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change, in
the rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) any change, or any development involving a prospective change,
in the assets, business, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus, as amended or supplemented as of such time,
that, in the reasonable judgment of the Representative(s), is material
and adverse and that makes it, in the reasonable judgment of the
Representative(s), impracticable to market the Debt Securities on the
terms and in the manner contemplated in the Prospectus, as so amended
or supplemented.
(c) The Representative(s) shall have received at the applicable Closing
Time a certificate, dated the applicable Closing Time and signed by an
executive officer of the Company, to the effect set forth in clauses (b)
(i) and (ii) above and to the effect that the representations and
warranties of the Company contained in this Agreement are true and correct
at the applicable Closing Time and that the Company has complied in all
material respects with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied on or before the
applicable Closing Time. The officer signing and delivering such
certificate may rely upon the best of his knowledge with respect to
Sections 1(a) and 1(k) as to proceedings contemplated or threatened.
(d) The Representative(s) shall have received at the applicable Closing
Time (i) an opinion of Fried, Frank, Harris, Shriver & Jacobson, special
counsel to the Company, addressing the matters set forth in
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<PAGE>
Exhibit B attached hereto, and (ii) an opinion of the (General Counsel)
(Associate General Counsel) of the Company, addressing the matters set
forth in Exhibit C attached hereto.
(e) The Representative(s) shall have received at the applicable Closing
Time an opinion of ( ), special counsel for the Underwriters, dated the
applicable Closing Time, with respect to all such matters as the
Representative(s) may reasonably request.
(f) The Representative(s) shall have received on the date of the Terms
Agreement and as of the applicable Closing Time a letter, dated such date,
in form and substance satisfactory to the Representative(s), from
independent accountants for the Company, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representative(s) by notice to the Company at any time at or prior to the
applicable Closing Time, and such termination shall be without any liability
of any party to any other party except as provided in Section 5.
5. Payment of Expenses. The Company will pay all expenses, fees and taxes
incident to the performance of its obligations under the Terms Agreement
(which incorporates by reference these Standard Provisions), including,
without limitation (i) the preparation and filing of the Registration
Statement and the Prospectus and all amendments and supplements thereto, and
the reproduction of this Agreement, (ii) the preparation, issuance and
delivery of the Debt Securities to the Underwriters, (iii) the fees and
disbursements of the Company's counsel and accountants and the Trustee and its
counsel, (iv) the qualification of the Debt Securities under securities laws
in accordance with the provisions of Section 3(f), including filing fees and
the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky Surveys and
Legal Investment Surveys, (v) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration Statement and
any amendments thereto, and of the Prospectus and any amendment or supplement
thereto, (vi) the reproduction and delivery to the Underwriters of copies of
the Indenture and any Blue Sky Surveys and Legal Investment Surveys, (vii) the
fees, if any, charged by rating agencies for rating the Debt Securities,
(viii) the fees and expenses, if any, incurred in connection with the listing
of the Debt Securities on any national securities exchange, and (ix) the fees
and expenses, if any, relating to clearance with the National Association of
Securities Dealers, Inc.
[If this Agreement is terminated by the Representative(s) in accordance with
the provisions of Section 4, the Company shall reimburse the Underwriters
named in the Terms Agreement for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the
Underwriters.]
6. Indemnification and Contribution. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, except insofar
as such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished to the Company in writing by such Underwriter through
the Representative(s) expressly for use therein or was based on the Form T-1
of the Trustee. The foregoing indemnity with respect to any preliminary
prospectus or any Prospectus that is supplemented or amended shall not inure
to the benefit of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such loss, claim, damage or liability
purchased the Debt Securities which are the subject thereof if such
Underwriter in a
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timely manner received a copy of such Prospectus (or such Prospectus as so
amended or supplemented), and a copy of the Prospectus (or the Prospectus as
amended or supplemented), excluding documents incorporated therein by
reference, was not sent or given by or on behalf of such Underwriter to such
person, at or prior to the confirmation of the sale of such Debt Securities to
such person in any case where delivery of a Prospectus (or an amended or
supplemented Prospectus) at or prior to the written confirmation of the sale
of the Debt Securities is required by the Securities Act and the untrue
statement or omission or the alleged untrue statement or omission was
corrected in the Prospectus (or the Prospectus as amended or supplemented).
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred by the Company, its directors, such officers or any such controlling
person in connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, but only with
reference to information relating to such Underwriter furnished to the Company
by such Underwriter in writing through the Representative(s) expressly for use
in the Registration Statement, any preliminary prospectus, the Prospectus or
any amendments or supplements thereto.
Promptly after receipt by an indemnified party under the first or second
paragraph in this Section 6 of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under this Section. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall
the indemnified party's reasonable legal expenses as incurred and shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation, and the
indemnifying party shall not be responsible for the cost of more than one
counsel for all indemnified parties (excluding any necessary local counsel) in
connection with any actions arising from the same facts. No indemnifying party
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim, and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of any indemnified
party.
If the indemnification provided for in the first or second paragraph in this
Section 6 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Debt Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to
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<PAGE>
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the Underwriters
on the other hand in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand in connection with the
offering of the Debt Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Debt Securities
(before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus Supplement, bear to the
aggregate public offering price of the Debt Securities. The relative fault of
the Company on the one hand and of the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this
Section 6 are several in proportion to the respective principal amounts of
Debt Securities purchased by each of such Underwriters and not joint.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Debt Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 6 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or
in equity.
The indemnity and contribution provisions contained in this Section 6 and
the representations and warranties of the Company contained herein or made
pursuant hereto shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Company, its directors or officers or any person controlling
the Company, and (iii) acceptance of and payment for any of the Debt
Securities.
7. Termination. This Agreement may be terminated, upon written notice given
by the Representative(s) to the Company, at any time prior to the applicable
Closing Time, if (a) after the execution and delivery of the Terms Agreement
and prior to the Closing Time (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except
as may otherwise be stated in or contemplated by the Registration Statement
and the Prospectus, any material adverse change, or any development involving
a prospective material adverse change, in the assets, business, financial
condition or results of operations of the Company and its subsidiaries taken
as a whole occurs, (ii) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange or the NASDAQ National Market, (iii)
trading of any securities of the Company shall have been suspended on any
national securities exchange or on the NASDAQ National Market, (iv) a general
moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (v) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the reasonable judgment
of the Representative(s), is material and
9
<PAGE>
adverse, and (b) in the case of any of the events specified in clauses (a)(i)
through (v), such event, singly or together with any other such event, makes
it, in the reasonable judgment of the Representative(s), impracticable to
market the Debt Securities on the terms and in the manner contemplated by the
Prospectus and the Prospectus Supplement, as such may be amended or
supplemented.
8. Defaulting Underwriters. If one or more of the Underwriters participating
in an offering of Debt Securities shall fail or refuse at the applicable
Closing Time to purchase Debt Securities which it or they are obligated to
purchase under the applicable Terms Agreement (the "Defaulted Securities"),
and the aggregate amount of Defaulted Securities is not more than one-tenth of
the aggregate amount of the Debt Securities to be purchased pursuant to the
Terms Agreement, the non-defaulting Underwriters named in such Terms Agreement
shall be obligated severally in the proportions that the amount of Debt
Securities set forth opposite their respective names above bears to the
aggregate amount of Debt Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the
Representative(s) may specify, to purchase the Debt Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the amount of Debt
Securities that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 8 by an amount in excess of
[one-ninth] of such amount of Debt Securities without the written consent of
such Underwriter. If, at the applicable Closing Time, any Underwriter or
Underwriters shall fail or refuse to purchase Debt Securities and the
aggregate amount of Debt Securities with respect to which such default occurs
is more than one-tenth of the aggregate amount of Debt Securities to be
purchased pursuant to such Terms Agreement, and arrangements satisfactory to
the Representative(s) and the Company for the purchase of such Debt Securities
are not made within 48 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or
the Company. In any such case either the Representative(s) or the Company
shall have the right to postpone the Closing Time but in no event for longer
than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering of the Debt Securities.
9. Parties. This Agreement shall inure to the benefit of and be binding upon
the Company and any Underwriter who becomes a party hereto, and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto or thereto and their respective successors and the
controlling persons and officers and directors referred to in Section 6 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the parties and their respective successors
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Debt Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
10. Counterparts. The Underwriting Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
10
<PAGE>
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
13. Notices. All references herein and in the Underwriting Agreement to the
Representative(s) when made in connection with any notice to or communication
by or with such Representative(s) shall, if there is more than one
representative, be deemed to be to the Lead Representative, as designated in
the Terms Agreement, and all notices shall be given to such Lead
Representative at the address set forth therein.
11
<PAGE>
Exhibit A
EL PASO NATURAL GAS COMPANY
(A DELAWARE CORPORATION)
(TITLE OF SECURITIES)
DELAYED DELIVERY CONTRACT
Dated: ( ), 19( )
El Paso Natural Gas Company
100 North Stanton Street
El Paso, Texas 79901
Attention: ( )
Dear Sirs:
The undersigned hereby agrees to purchase from El Paso Natural Gas Company
(the "Company"), and the Company agrees to sell to the undersigned on
( ), 19( ) (the "Delivery Date"), ( ) principal amount of
the Company's (insert title of security) (the "Securities"), offered by the
Company's Prospectus dated ( ), 19( ), as supplemented by the
Prospectus Supplement dated ( ), 19( ), receipt of which is
hereby acknowledged at a purchase price of ( % of the principal amount
thereof, plus accrued interest from ( ), 19( )) to the Delivery
Date, and on the further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Company (by wire transfer) (or its
order by certified or official bank check in New York Clearing House funds) at
the office of Fried, Frank, Harris, Shriver & Jacobson, on the Delivery Date,
upon delivery to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and registered in
such names as the undersigned may designate by written or telegraphic
communication addressed to the Company not less than five full business days
prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date shall be subject only to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before ( ),
19( ), shall have sold to the Underwriters of the Securities (the
"Underwriters") such principal amount of the Securities as is to be sold to
them pursuant to the Terms Agreement dated ( ), 19( ), between
the Company and the Underwriters. The obligation of the undersigned to take
delivery of and make payment for Securities shall not be affected by the
failure of any purchaser to take delivery of and make payments for Securities
pursuant to other contracts similar to this contract. The undersigned
represents and warrants to you that its investment in the Securities is not,
as of the date hereof, prohibited under the laws of any jurisdiction to which
the undersigned is subject and which govern such investment.
Promptly after completion of the sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
A-1
<PAGE>
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment
or purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid
and binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery Contracts
for an aggregate principal amount of Securities in excess of ($ ) and
that the acceptance of any Delayed Delivery Contract is in the Company's sole
discretion and, without limiting the foregoing, need not be on a first-come,
first-served basis. If this contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance on a copy hereof and
mail or deliver a signed copy hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such copy is so mailed or delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
-------------------------------------
(Name of Purchaser)
By: _________________________________
(Title)
-----------------------------------
-----------------------------------
Accepted as of the date first above written.
EL PASO NATURAL GAS COMPANY
By: ___________________________
(Title)
A-2
<PAGE>
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed are as follows:
(Please print.)
<TABLE>
<CAPTION>
TELEPHONE NO. (INCL. AREA
NAME CODE)
---- --------------------------
<S> <C>
</TABLE>
A-3
<PAGE>
Exhibit B
Opinion of [ ], Counsel for the Company
The opinion of counsel for the Company to be delivered pursuant to Section
4(d) of the Underwriting Agreement shall be to the effect that:
(i) the Registration Statement has become effective under the Securities
Act, and, to the best knowledge of such counsel, no stop order suspending
its effectiveness of the Registration Statement is in effect, and no
proceedings for that purpose are pending before or, to such counsel's
knowledge, contemplated by the Commission;
(ii) the Underwriting Agreement and the Delayed Delivery Contracts, if
any, have been duly authorized, executed and delivered by the Company;
(iii) the form and terms of the Debt Securities have been duly and
validly authorized and established in conformity with the provisions of the
Indenture by all necessary corporate action by the Company, and when such
Debt Securities have been duly executed, authenticated and delivered
against payment therefor in accordance with the provisions of the Indenture
and this Agreement, they will constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms and the terms of the Indenture, except as such enforcement
may be limited by the Bankruptcy Exceptions; and the Indenture has been
duly authorized, executed and delivered by the Company, has been qualified
under the Trust Indenture Act, and constitutes a legal, valid and binding
obligation enforceable against the Company in accordance with its terms,
except as such enforcement may be limited by the Bankruptcy Exceptions;
(iv) the execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement, the
Indenture and the Debt Securities will not violate any provision of
applicable law or the Restated Certificate of Incorporation, as amended, or
By-laws of the Company;
(v) no consent, approval, authorization or order of or qualification with
any U.S. federal or New York or (with respect to matters arising under the
Delaware General Corporation Law) Delaware body or agency is required for
the performance by the Company of its obligations under the Underwriting
Agreement, the Indenture or the Debt Securities, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Debt Securities or except when
the failure to obtain such consent, approval, authorization, order or
qualification would not, individually or in the aggregate, have a Material
Adverse Effect;
(vi) the Company is not (i) an "investment company" within the meaning of
the Investment Company Act of 1940, as amended, and the rules and
regulations promulgated by the Commission thereunder, or (ii) a "holding
company" within the meaning of, or subject to regulation under, the Public
Utility Holding Company Act of 1935, as amended, and the rules and
regulations promulgated by the Commission thereunder;
(vii) the statements (A) in the Prospectus Supplement under the caption
"Certain Terms of the Debt Securities" and in the Basic Prospectus under
the caption "Description of Debt Securities," and (B) in the Registration
Statement under Item 15, insofar as such statements constitute a summary of
the legal matters referred to therein, fairly present the information
disclosed therein in all material respects;
(viii) such counsel (A) is of the opinion that each document, if any,
filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus (except for financial statements and schedules and other
financial or statistical data included therein as to which such counsel
need not express any opinion) complied when so filed as to form in all
material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (B) believes that (except for
financial statements and schedules and other financial or statistical data
as to which such counsel need not express any belief and except for that
part of the Registration Statement that constitutes the Form T-1 of the
Trustee heretofore referred to) each part of the Registration Statement,
when such part became effective, did not, and as of the
B-1
<PAGE>
date such opinion is delivered, does not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (C) is
of the opinion that the Registration Statement and Prospectus (except for
financial statements and schedules and other financial or statistical data
included therein as to which such counsel need not express any opinion)
comply as to form in all material respects with the requirements of the
Securities Act, the Trust Indenture Act and the applicable rules and
regulations of the Commission thereunder, and (D) believes that (except for
financial statements and schedules and other financial or statistical data
as to which such counsel need not express any belief) the Prospectus as of
the date such opinion is delivered does not contain an untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
With respect to paragraph (viii) above, Fried, Frank, Harris, Shriver &
Jacobson may state that (A) their opinion and belief is based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification, except as
specified, (B) no opinion or belief is being expressed with respect to Tenneco
Inc. and its businesses other than Tenneco Energy, [and (C) no opinion or
belief is being expressed with respect to documents incorporated by reference
in the Registration Statement and Prospectus].
In addition, such counsel shall state that in the course of the preparation
by the Company of the Registration Statement, the Prospectus and the
Prospectus Supplement, such counsel participated in conferences with certain
of the officers and representatives of the Company, at which the Registration
Statement, the Prospectus and the Prospectus Supplement were discussed. Given
the limitations inherent in the independent verification of factual matters
and the character of determinations involved in the registration process, such
counsel does not pass upon and need not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or the Prospectus Supplement, except as
specifically described in the opinion in paragraph ( ) above. Subject to the
foregoing and on the basis of the information such counsel gained in the
performance of the services referred to above, including information obtained
from officers and other representatives of the Company, such counsel shall
state that no facts have come to such counsel's attention that have caused it
to believe that the Registration Statement, at the time it became effective
[or at the time an Annual Report on Form 10-K was filed (whichever is later)],
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectus and any Prospectus
Supplement, as of their respective dates [or at the date hereof], included or
includes, as the case may be, any untrue statement of a material fact or
omitted or omits, as the case may be, to state a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading. Such counsel need express no view or
belief, however, with respect to (i) financial statements, schedules or notes
thereto or other financial and statistical data included in or omitted from
the Registration Statement or Prospectus or any Prospectus Supplement or (ii)
any part of the Registration Statement which shall constitute a Statement of
Eligibility on Form T-1 under the Trust Indenture Act.
B-2
<PAGE>
Exhibit C
Opinion of ( ), (General Counsel) (Associate General
Counsel) of the Company
The opinion of ( ), general counsel of the Company, to be delivered pursuant
to Section 4(d) of the Underwriting Agreement shall be to the effect that:
(i) the Company has been duly incorporated and is validly existing and in
good standing under the laws of the State of Delaware;
(ii)(A) the Company has the corporate power and authority to own its
properties and to conduct its business as described in the Prospectus, as
amended or supplemented, and (B) the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
Material Adverse Effect;
(iii) each Subsidiary of the Company has been duly incorporated and is a
corporation duly organized, validly existing in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its properties and to conduct its business as described in
the Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a Material Adverse Effect;
(iv) the execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement, the
Indenture and the Debt Securities will not violate, to the best of such
counsel's knowledge (A) any agreement or other instrument binding upon the
Company or any Subsidiaries, or (B) to the best of such counsel's
knowledge, any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any Subsidiary except, in
each case, for such violations as would not, individually or in the
aggregate, have a Material Adverse Effect;
(v) the statements under the caption (A) "Item 3--Legal Proceedings" of
the Company's most recent annual report on Form 10-K incorporated by
reference into the Prospectus and (B) "Item 1--Legal Proceedings" of Part
II of the Company's quarterly reports on Form 10-Q, if any, filed since
such annual report, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information disclosed therein in all material
respects;
(vi) after due inquiry, such counsel does not know of any legal or
governmental proceedings instituted or threatened against the Company or
any of its subsidiaries which would restrict the issuance and sale of the
Debt Securities as contemplated by the Prospectus, or would be required to
be disclosed therein and which is not disclosed; also, such counsel does
not know of any statutes, regulations, contracts or other documents which
are required to be summarized in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to the
Registration Statement which are not summarized, filed or incorporated as
required; and
(vii) such counsel (A) is of the opinion that each document, if any,
filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus (except for financial statements and schedules and other
financial or statistical data included therein as to which such counsel
need not express any opinion) complied when so filed as to form in all
material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (B) believes that (except for
financial statements and schedules and other financial or statistical data
as to which such counsel need not express any belief and except for that
part of the Registration Statement that constitutes the Form T-1 of the
Trustee heretofore referred to) each part of the Registration Statement,
when such part became effective, did not, and as of the date such opinion
is delivered, does not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (C) is of the opinion that the
Registration Statement and Prospectus (except for financial statements and
schedules
C-1
<PAGE>
and other financial or statistical data included therein as to which such
counsel need not express any opinion) comply as to form in all material
respects with the requirements of the Securities Act, the Trust Indenture
Act and the applicable rules and regulations of the Commission thereunder,
and (D) believes that (except for financial statements and schedules and
other financial or statistical data as to which such counsel need not
express any belief) the Prospectus as of the date such opinion is delivered
does not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
With respect to paragraph (vii) above, such counsel may state that (A) its
option and belief is based upon its participation in the preparation of the
Registration Statement and Prospectus and any amendments or Supplements
thereto and review and discussion of the contents thereof, but are without
independent check or verification, except as specified, and (B) no opinion or
belief is being expressed with respect to Tenneco Inc. and its business other
than Tenneco Energy.
In addition, such counsel shall state that in the course of the preparation
by the Company of the Registration Statement, the Prospectus and the
Prospectus Supplement, such counsel participated in conferences with certain
of the officers and representatives of the Company, at which the Registration
Statement, the Prospectus and the Prospectus Supplement were discussed. Given
the limitations inherent in the independent verification of factual matters
and the character of determinations involved in the registration process, such
counsel does not pass upon and need not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or the Prospectus Supplement, except as
specifically described in the opinion in paragraph ( ) above. Subject to the
foregoing and on the basis of the information such counsel gained in the
performance of the services referred to above, including information obtained
from officers and other representatives of the Company, such counsel shall
state that no facts have come to such counsel's attention that have caused it
to believe that the Registration Statement, at the time it became effective
[or at the time an Annual Report on Form 10-K was filed (whichever is later)],
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectus and any Prospectus
Supplement, as of their respective dates [or at the date hereof], included or
includes, as the case may be, any untrue statement of a material fact or
omitted or omits, as the case may be, to state a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading. Such counsel need express no view or
belief, however, with respect to (i) financial statements, schedules or notes
thereto or other financial and statistical data included in or omitted from
the Registration Statement or Prospectus or any Prospectus Supplement or (ii)
any part of the Registration Statement which shall constitute a Statement of
Eligibility on Form T-1 under the Trust Indenture Act.
C-2
<PAGE>
EXHIBIT 1.2
EL PASO NATURAL GAS COMPANY
(A DELAWARE CORPORATION)
(TITLE OF SECURITIES)
TERMS AGREEMENT
Dated: ( ), 199( )
El Paso Natural Gas Company
100 North Stanton Street
El Paso, Texas 79901
Dear Sirs:
We (the "Representative(s)") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
El Paso Natural Gas Company, a Delaware corporation (the "Company"), proposes
to issue and sell the number of shares of its (Common Stock, $3.00 par value
(the "Common Stock")) (Preferred Stock, $.01 par value (the "Preferred
Stock")) (such (Common Stock) (Preferred Stock) (collectively) hereinafter
(also) referred to as the "Underwritten Securities").
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell and the Underwriters agree to
purchase, severally and not jointly, the respective number of shares of
Initial Underwritten Securities (as defined in the Underwriting Agreement--
Basic Provisions referenced below) set forth opposite their respective names,
and a proportionate share of Option Securities (as defined in the Underwriting
Agreement--Basic Provisions referenced below) to the extent any are purchased,
at the purchase price set forth below.
<TABLE>
<CAPTION>
NUMBER OF SHARES OF
UNDERWRITERS INITIAL UNDERWRITTEN SECURITIES
------------ -------------------------------
<S> <C>
</TABLE>
1
<PAGE>
The Underwritten Securities shall have the terms set forth in the Prospectus
dated ( ), 199( ), and the Prospectus Supplement dated (
), 199( ), including the following:
Title:
Number of Shares:
(Dividend Rate: $( ) ( %). Payable: )
(Stated Value:)
(Ranking:)
Public Offering Price Per Share: $( ) (, plus accumulated dividends, if any,
from ( ), 19 ( ).
Purchase Price Per Share: $( ) (, plus accumulated dividends, if any, from
( ), 19 ( ).)
(Conversion Provisions:)
(Redemption Provisions:)
(Sinking Fund Requirements:)
Number of Option Securities, if any, that may be purchased by the
Underwriters:
(Delayed Delivery Contracts: (authorized) (not authorized)
(Date of Delivery:
Minimum Contract:
Maximum Number of Shares:
Fee: )
Other Terms:
Closing Date and Location:
All provisions contained in the document attached as Annex A hereto entitled
"El Paso Natural Gas Company--Common Stock ($3.00 par value) and Preferred
Stock ($.01 par value)--Underwriting Agreement Standard Provisions," are
hereby incorporated by reference in their entirety and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are used herein as
therein defined.
Please confirm your agreement by having an authorized officer sign a copy of
this Terms Agreement in the space set forth below.
Very truly yours,
(Name(s) of Representative(s))
Acting severally on behalf of
(itself) (themselves) and the
several Underwriters named herein
By: (Name of Lead-Representative)
By: _________________________________
Name:
Title:
Accepted:
El Paso Natural Gas Company
By: _________________________________
Name:
Title:
2
<PAGE>
Annex A
EL PASO NATURAL GAS COMPANY
(A DELAWARE CORPORATION)
COMMON STOCK ($3.00 PAR VALUE)
AND
PREFERRED STOCK ($.01 PAR VALUE)
UNDERWRITING AGREEMENT STANDARD PROVISIONS
El Paso Natural Gas Company, a Delaware corporation (the "Company") proposes
to issue and sell shares of Common Stock, $3.00 par value (the "Common
Stock"), or Preferred Stock, $.01 par value (the "Preferred Shares"), or both,
from time to time in one or more offerings on terms determined at the time of
sale. The Common Stock and the Preferred Shares are hereinafter referred to as
the "Securities." Each issue of Preferred Shares may vary as to the specific
number of shares, title, stated value and liquidation preference, issuance
price, ranking, dividend rate or rates (or method of calculation), dividend
payment dates, any redemption or sinking fund requirements, any conversion
provisions and any other variable terms as set forth in the applicable
certificate of designation (each, a "Certificate of Designation") relating to
such Preferred Shares.
This is to confirm the arrangements with respect to the purchase of the
Underwritten Securities (as defined in Section 2 hereof) from the Company by
the Representative(s) and the several Underwriters listed in the applicable
terms agreement entered into between the Representative(s) and the Company of
which this Underwriting Agreement is Annex A thereto (the "Terms Agreement").
Terms defined in the Terms Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-14617) in respect
of the Securities and the Company's debt securities, which registration
statement also constitutes a post-effective amendment to registration
statement No. 33-44327 relating to the Company's debt securities and a post-
effective amendment to Registration Statement No. 33-55153, and has filed such
amendments thereto as may have been required to the date of the Terms
Agreement. Such registration statement and such post-effective amendments, as
amended, have been declared effective by the Commission. Such registration
statement and such post-effective amendments, as amended, including all
documents incorporated therein by reference, as from time to time amended or
supplemented pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Securities Act of 1933, as amended (the "Securities
Act"), or otherwise, and any registration statement filed pursuant to Rule
462(b) under the Securities Act are herein collectively referred to as the
"Registration Statement". Such combined prospectus constituting a part of the
Registration Statement and any prospectus subject to completion taken together
with any term sheet meeting the requirements of Rule 434(b) under the
Securities Act, as applicable, are collectively referred to herein as the
"Prospectus"; provided, however, that a supplement to the Prospectus
contemplated by Section 3(a) hereof (a "Prospectus Supplement") shall be
deemed to have supplemented the Prospectus only with respect to the offering
of Underwritten Securities to which it relates.
1. Representations and Warranties. The Company represents and warrants to
each of the Underwriters named in the Terms Agreement that:
(a) The Registration Statement has become effective under the Securities
Act, no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are pending
before or, to the best of the Company's knowledge, contemplated by the
Commission.
1
<PAGE>
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder; (ii)
each part of the Registration Statement, when such part became effective,
did not contain, and each such part, as amended or supplemented, if
applicable, will not contain, any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; (iii) the Registration
Statement and the Prospectus comply, and, as amended or supplemented, if
applicable, will comply, in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder; and
(iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this Section
1(b) do not apply to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representative(s) expressly for use in the Registration Statement or
Prospectus.
(c) The Company has been duly incorporated and is validly existing in
good standing under the laws of the State of Delaware, has the corporate
power and authority to own its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or to be in good standing would not have a material adverse
effect on the assets, business, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect").
(d) Each significant subsidiary of the Company within the meaning of
Regulation S-K (each hereinafter referred to as a "Subsidiary") has been
duly incorporated and is a corporation duly organized, validly existing in
good standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
Material Adverse Effect on the Company and its significant subsidiaries,
taken as a whole.
(e) The authorized, issued and outstanding capital stock of the Company
is as set forth under "( )" and is accurate as of the date indicated in
such section.
(f) This Agreement and the Delayed Delivery Contracts, if any, have been
duly authorized, executed and delivered by the Company.
(g) All the outstanding shares of capital stock of the Company have been
duly authorized and are validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights; the Underwritten
Securities being sold pursuant to a Terms Agreement have, as of the date of
such Terms Agreement, been duly authorized by the Company and such
Underwritten Securities have been duly authorized for issuance and sale
pursuant to this Agreement (or will have been so authorized prior to each
issuance of Underwritten Securities) and such Underwritten Securities, when
issued and delivered by the Company pursuant to this Agreement, against
payment of the consideration set forth in this Agreement, will be validly
issued, fully paid and nonassessable; the Underwritten Securities being
sold pursuant to a Terms Agreement conform in all material respects to all
statements relating thereto contained in the Prospectus; and the issuance
of the Underwritten Securities is not subject to any preemptive or other
similar rights.
(h) Neither the Company nor any of its Subsidiaries are (i) in violation
of their respective charters or by-laws or (ii) in default in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any other
agreement, indenture or instrument to the conduct of the business of the
Company or any Subsidiaries, taken as a whole, to which the Company or any
Subsidiaries is a party or by which the Company or any of its Subsidiaries
or their respective property is bound, except, in the case of (ii) for such
violations or defaults as would not, individually or in the aggregate, have
a Material Adverse Effect.
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(i) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement will not violate (i)
the Restated Certificate of Incorporation, as amended, or By-laws of the
Company, (ii) any provision of applicable law, (iii) any agreement or other
instrument binding upon the Company or any Subsidiaries or (iv) any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any Subsidiary, except, in the case of
clauses (ii) through (iv), inclusive, for such violations as would not,
individually or in the aggregate, have a Material Adverse Effect. No
consent, approval, authorization or order of or qualification with any U.S.
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, except such as may be required by
the securities or Blue Sky laws of the various states in connection with
the offer and sale of the Underwritten Securities or except as would not,
individually or in the aggregate, have a Material Adverse Effect or would
not adversely affect the offering of the Underwritten Securities as
contemplated in the Prospectus Supplement.
(j) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise be
stated in or contemplated by the Registration Statement and Prospectus,
there has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the assets, business,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(k) If applicable, the shares of Common Stock issuable upon conversion of
any issue of Preferred Shares have been duly authorized and reserved for
issuance upon the conversion by all necessary corporate action and when
issued upon conversion, will be validly issued, fully paid and
nonassessable, and the issuance of such shares upon such conversion will
not be subject to preemptive rights.
(l) Other than as set forth or incorporated by reference in the
Registration Statement and Prospectus, there are no legal or governmental
proceedings instituted or, to the best of the Company's knowledge,
threatened against the Company or any Subsidiaries which would restrict the
issuance and sale of the Underwritten Securities as contemplated by the
Prospectus or which are required under the Securities Act to be disclosed
therein and which are not disclosed. No contract or document of a character
required under the Securities Act to be described in the Registration
Statement or Prospectus or to be filed as an exhibit to the Registration
Statement is not described or filed as required.
(m) The financial statements, together with related schedules and notes
forming part of the Registration Statement and the Prospectus (and any
amendment or supplement thereto), present fairly in all material respects
the consolidated financial position, results of operations and changes in
financial position of the Company and its consolidated subsidiaries on the
basis stated in the Registration Statement at the respective dates or for
the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and
statistical information and data of the Company (including any pro forma
financial information) set forth in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) is, in all material
respects, accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company.
(n) The Company is not, nor is it directly or indirectly controlled by or
acting on behalf of any person which is, (i) an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, and the
rules and regulations promulgated by the Commission thereunder, or (ii) a
"holding company" within the meaning of, or subject to regulation under,
the Public Utility Holding Company Act of 1935, as amended, and the rules
and regulations promulgated by the Commission thereunder.
(o) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
2. Purchase and Sale. The obligations of the Underwriters to purchase, and
the Company to sell, the Underwritten Securities shall be evidenced by the
Terms Agreement. The Terms Agreement shall specify the number of Underwritten
Securities to be initially issued (the "Initial Underwritten Securities"), the
names of the
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Underwriters participating in such offering (subject to substitution as
provided in Section 8 hereof), the number of Initial Underwritten Securities
which each such Underwriter severally agrees to purchase, the price at which
the Initial Underwritten Securities are to be purchased by the Underwriters
from the Company, the initial public offering price, the time and place of
delivery and payment, any delayed delivery arrangements and any other terms of
the Initial Underwritten Securities pursuant to which they are being issued
(including, but not limited to, designations, conversion provisions,
redemption provisions and sinking fund requirements). In addition, each Terms
Agreement shall specify whether the Company has agreed to grant to the
Underwriters an option to purchase additional Underwritten Securities subject
to such option (the "Option Securities"). As used herein, the term
Underwritten Securities shall include the Initial Underwritten Securities and
all or any portion of the Option Securities agreed to be purchased by the
Underwriters as provided herein, if any.
The several commitments of the Underwriters to purchase Underwritten
Securities pursuant to the Terms Agreement shall be deemed to have been made
on the basis of the representations and warranties herein contained and shall
be subject to the terms and conditions herein set forth.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the Terms Agreement relating to any
Initial Underwritten Securities, an option to the Underwriters, named in such
Terms Agreement, severally and not jointly, to purchase up to the number of
Option Securities set forth therein at the same price per share as is
applicable to the Initial Underwritten Securities. Such option, if granted,
will expire 30 days or such lesser number of days as may be specified in the
Terms Agreement after the Closing Time (as hereinafter defined) relating to
the Initial Underwritten Securities, and may be exercised in whole or in part
from time to time only for the purchase of covering over-allotments which may
be made in connection with the offering and distribution of the Initial
Underwritten Securities upon notice by the Representative(s) to the Company
setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment
and delivery for such Option Securities. Any such time and date of delivery (a
"Date of Delivery") shall be determined by the Representative(s), but shall
not be later than ten full business days and not earlier than two full
business days after the exercise of said option, unless otherwise agreed upon
by the Representative(s) and the Company. If the option is exercised as to all
or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number
of Option Securities then being purchased which the number of Initial
Underwritten Securities each such Underwriter has agreed to purchase as set
forth in the related Terms Agreement bears to the total number of Initial
Underwritten Securities, subject to such adjustments as the Representative(s)
in (your) (their) discretion shall make to eliminate any sales or purchases of
fractional shares.
Payment of the purchase price for, and delivery of, any Initial Underwritten
Securities to be purchased by the Underwriters shall be made at the office of
Fried, Frank, Harris, Shriver & Jacobson, One New York Plaza, New York, New
York 10004, or at such other place as shall be agreed upon by the
Representative(s) and the Company, at (9:00) A.M., New York City time, on the
third or fourth business day (unless otherwise permitted by the Commission
pursuant to Rule 15e6-1 of the Exchange Act or postponed in accordance with
the provisions of Section 8) following the date of the Terms Agreement or such
other time as shall be agreed upon by the Representative(s) and the Company
(each such time and date being referred to as a "Closing Time"). In addition,
in the event that any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of certificates
representing, such Option Securities, shall be made at the above-mentioned
office of Fried, Frank, Harris, Shriver & Jacobson, or at such other place as
shall be agreed upon by the Representative(s) to the Company. Payment shall be
made to the Company by wire transfer of immediately available (same-day)
funds, against delivery to the Representative(s) for the respective accounts
of the Underwriters of the Underwritten Securities to be purchased by them.
Certificates for such Underwritten Securities shall be in such denominations
and registered in such names as the Representative(s) may request in writing
at least two business days prior to the applicable Closing Time or Date of
Delivery, as the case may be. Such certificates or receipts will be made
available for examination and packaging by the Representative(s) on or before
the first business day prior to Closing Time or Date of Delivery, as the case
may be.
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If authorized by the Terms Agreement, the Underwriters named therein may
solicit offers to purchase Underwritten Securities from the Company pursuant
to delayed delivery contracts ("Delayed Delivery Contracts") substantially in
the form of Exhibit A hereto with such changes therein as the Company may
approve. As compensation for arranging Delayed Delivery Contracts, the Company
will pay to the Representative(s) at Closing Time, for the accounts of the
Underwriters, a fee specified in the Terms Agreement for each of the
Underwritten Securities for which Delayed Delivery Contracts are made at
Closing Time as specified in the Terms Agreement. Any Delayed Delivery
Contracts are to be with institutional investors of the types set forth in the
Prospectus Supplement. At Closing Time, the Company will enter into Delayed
Delivery Contracts (for not less than the minimum number of Securities per
Delayed Delivery Contract specified in the applicable Terms Agreement) with
all purchasers proposed by the Underwriters and previously approved by the
Company as provided below, but not for an aggregate number of Underwritten
Securities in excess of that specified in the Terms Agreement. The
Underwriters will not have any responsibility for the validity or performance
of Delayed Delivery Contracts.
The Representative(s) shall submit to the Company, at least three business
days prior to Closing Time, the names of any institutional investors with
which it is proposed that the Company will enter into Delayed Delivery
Contracts and the number of Underwritten Securities to be purchased by each of
them, and the Company will advise the Representative(s), at least two business
days prior to Closing Time, of the names of the institutions with which the
making of Delayed Delivery Contracts is approved by the Company and the number
of Underwritten Securities to be covered by each such Delayed Delivery
Contract.
The number of Underwritten Securities to be purchased by the respective
Underwriters pursuant to the Terms Agreement shall be reduced by the number of
Underwritten Securities covered by Delayed Delivery Contracts, as to each
Underwriter as set forth in a written notice delivered by the
Representative(s) to the Company; provided, however, that the total number of
Underwritten Securities to be purchased by all Underwriters shall be the total
number of Underwritten Securities covered by the applicable Terms Agreement,
less the number of Underwritten Securities covered by Delayed Delivery
Contracts.
The Company hereby agrees and the Company shall, concurrently with the
execution of this Agreement, deliver an agreement executed by (i) each of the
directors and executive officers of the Company, and (ii) each five percent or
greater stockholder identified to the Company by the Representative(s)
pursuant to which each such person agrees, not to offer, sell, contract to
sell, grant any option to purchase, or otherwise dispose of any common stock
of the Company or any securities convertible into or exercisable or
exchangeable for such common stock or in any other manner transfer all or a
portion of the economic consequences associated with the ownership of any such
common stock, except to the Underwriters pursuant to this Agreement, for a
period of days after the date of the Prospectus without the prior written
consent of the Representative(s). Notwithstanding the foregoing, during such
period (i) the Company may grant stock options pursuant to the Company's
existing stock option plan and (ii) the Company may issue shares of its common
stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof.
3. Covenants of the Company. In further consideration of the agreements of
the Underwriters contained herein, the Company covenants as follows:
(a) Immediately following the execution of the Terms Agreement, the
Company will prepare a Prospectus Supplement setting forth the number of
Underwritten Securities covered thereby and their terms not otherwise set
forth in the Prospectus, the names of the Underwriters participating in the
offering and the number of Underwritten Securities which each severally has
a agreed to purchase, the price at which the Underwritten Securities are to
be purchased by the Underwriters from the Company, the initial public
offering price, the selling concession and reallowance, if any, any delayed
delivery arrangements, and such other information as the Representative(s)
and the Company deem appropriate in connection with the offering of the
Underwritten Securities. The Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule 424 of
the Securities Act and will furnish to the Underwriters named therein as
many copies of the Prospectus and such Prospectus Supplement as the
Representative(s) shall reasonably request.
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(b) To furnish to the Representative(s), without charge, one signed copy
of the Registration Statement (including exhibits thereto) and for delivery
to each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in paragraph
(c) below, as many copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto or to the
Registration Statement as the Representative(s) may reasonably request.
(c) At any time when the Prospectus is required by the Securities Act to
be delivered in connection with sales of the Underwritten Securities, the
Company will give the Representative(s) notice of its intention to file any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus (including any term sheet within the meaning of Rule 434
under the Securities Act), whether pursuant to the Securities Act, the
Exchange Act or otherwise, and will furnish the Representative(s) with
copies of each such proposed amendment or supplement or other documents
proposed to be filed a reasonable time in advance of filing.
(d) To advise the Representative(s) promptly and, if requested by the
Representative(s), to confirm such advice in writing, (i) of any request by
the Commission for amendments to the Registration Statement or amendments
or supplements to the Prospectus or for additional information, (ii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of the suspension of qualification of the
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for such purposes, and (iii) of the happening of any event
during the period referred to in paragraph (c) above which makes any
statement of a material fact made in the Registration Statement or the
Prospectus untrue or which requires the making of any additions to or
changes in the Registration Statement in order to make the statements
therein not misleading or the Prospectus in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company
will make every reasonable effort to obtain the withdrawal or lifting of
such order at the earliest possible time.
(e) If, at any time when the Prospectus is required by the Securities Act
to be delivered in connection with sales of any of the Underwritten
Securities, any event shall occur or condition exist as a result of which
it is necessary, in the opinion of counsel for the Underwriters or counsel
for the Company, to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances under which they were
made when the Prospectus is delivered to a purchaser, not misleading, or
if, in the opinion of either such counsel, it is necessary to amend or
supplement the Prospectus to comply with the U.S. laws, [and if
appropriate, foreign laws], the Company will promptly prepare and file with
the Commission and furnish, at its own expense, to the Underwriters, and to
the dealers (whose names and addresses the Representative(s) will furnish
to the Company) to which Underwritten Securities may have been sold by the
Representative(s) on behalf of the Underwriters and to any other dealer
upon request, either amendments or supplements to the Prospectus so that
the statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances under which they were made when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with such U.S. laws
[and if appropriate, foreign laws].
(f) The Company will endeavor in good faith to qualify the Underwritten
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative(s) shall reasonably request; provided,
however, that the Company shall not be obligated to file any general
consent to service or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company will maintain
such qualification in effect for so long as may be required for the
distribution of the Underwritten Securities. The Company will file such
statements and reports as may be required by the laws of each jurisdiction
in which the Underwritten Securities have been qualified as above provided.
(g) With respect to each sale of Underwritten Securities, the Company
will make generally available to its security holders as soon as
practicable an earnings statement, in which shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission
thereunder.
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(h) Unless otherwise provided in the Terms Agreement, between the date of
the Terms Agreement and the later of termination of any trading
restrictions and the Closing Time or Date of Delivery, as the case may be,
with respect to the Underwritten Securities covered thereby (it being
understood that the Representative(s) promptly will notify the Company as
to the termination of trading restrictions on such Underwritten
Securities), the Company will not without the Representative(s') prior
consent, offer to sell, or enter into any agreement to sell, any Securities
of the same class or series or ranking on a parity with such Underwritten
Securities or, if such Terms Agreement relates to Underwritten Securities
that are convertible into Common Stock, any Common Stock or any security
convertible into Common Stock (except for Common Stock issued pursuant to
reservations or agreements, pursuant to any employee stock option plan,
stock ownership plan or dividend reinvestment plan).
(i) To use its reasonable best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by the
Company prior to the Closing Time and to satisfy all conditions precedent
to the delivery of the Securities.
4. Conditions to Closing. The several obligations of the Underwriters to
purchase Underwritten Securities pursuant to the Terms Agreement are subject
to the following conditions:
(a) All representations and warranties of the Company contained in this
Agreement shall be true and correct at the applicable Closing Time with the
same force and effect as if made on and as of such Closing Time.
(b) As of the applicable Closing Time, there shall not have been, since
the date of the Terms Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, as
amended and supplemented,
(i) any downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change, in
the rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) any change, or any development involving a prospective change,
in the assets, business, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus, as amended or supplemented as of such time,
that, in the reasonable judgment of the Representative(s), is material
and adverse and that makes it, in the reasonable judgment of the
Representative(s), impracticable to market the Underwritten Securities
on the terms and in the manner contemplated in the Prospectus as so
amended or supplemented.
(c) The Representative(s) shall have received at the Closing Time a
certificate, dated the applicable Closing Time and signed by an executive
officer of the Company, to the effect set forth in clauses (b)(i) and (ii)
above and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct at the applicable
Closing Time and that the Company has complied in all material respects
with all of the agreements and satisfied all of the conditions on its part
to be performed or satisfied on or before the applicable Closing Time. The
officer signing and delivering such certificate may rely upon the best of
his knowledge with respect to Section 1(l) and 1(o) as to proceedings
contemplated or threatened.
(d) The Representative(s) shall have received at the Closing Time (i) an
opinion of Fried, Frank, Harris, Shriver & Jacobson, special counsel to the
Company, addressing the matters set forth in Exhibit B attached hereto and
(ii) an opinion of the (General Counsel)(Associate General Counsel) of the
Company, addressing the matters set forth in Exhibit C attached hereto.
(e) The Representative(s) shall have received at the applicable Closing
Time an opinion of ( ), special counsel for the Underwriters, dated the
applicable Closing Time, with respect to all such matters as the
Representative(s) may reasonably request.
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(f) The Representative(s) shall have received on the date of the Terms
Agreement and as of the applicable Closing Time a letter, dated such date,
in form and substance satisfactory to the Representative(s), from
independent accountants for the Company, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus.
(g) In the event the Underwriters exercise their option provided in a
Terms Agreement as set forth in Section 2 hereof to purchase all or any
portion of the Option Securities, the Representative(s) shall have
received:
(1) A certificate, dated such Date of Delivery, signed by an
executive officer of the Company, confirming that the certificate
delivered at Closing Time pursuant to Section 4(c) hereof remains true
and correct as of such Date of Delivery.
(2) An opinion of Fried, Frank, Harris, Shriver & Jacobson, in form
and substance satisfactory to the Representative(s), dated such Date of
Delivery, relating to the Option Securities and otherwise substantially
to the same effect as the opinion required by Section 4(d)(i) hereof.
(3) An opinion of the (General Counsel)(Associate General Counsel) of
the Company, in form and substance satisfactory to the
Representative(s), dated such Date of Delivery, relating to the Option
Securities and otherwise substantially to the same effect as the
opinion required by Section 4(d)(ii).
(4) An opinion of ( ), counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Securities and otherwise
substantially to the same effect as the opinion required by Section
4(e) hereof.
(5) A letter from the Company's independent accountants in form and
substance satisfactory to the Representative(s) and dated the Date of
Delivery, substantially the same in scope and substance as the letter
furnished to the Representative(s) pursuant to Section 4(f) hereof on
the applicable Closing Time.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representative(s) by notice to the Company at any time at or prior to the
applicable Closing Time, and such termination shall be without any liability
of any party to any other party except as provided in Section 5.
Payment of Expenses. The Company will pay all expenses, fees and taxes
incident to the performance of its obligations under the Terms Agreement
(which incorporates by reference these Standard Provisions), including,
without limitation, (i) the preparation and filing of the Registration
Statement and the Prospectus and all amendments and supplements thereto, and
the reproduction of this Agreement, (ii) the preparation, issuance and
delivery of the Underwritten Securities to the Underwriters, (iii) the fees
and disbursements of the Company's counsel and accountants, (iv) the
qualifications of the Underwritten Securities under securities laws in
accordance with the provisions of Section 3(f), including filing fees and the
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of any Blue Sky Surveys and Legal
Investment Surveys, (v) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration Statement and
any amendments thereto, and of the Prospectus and any amendment or supplement
thereto, (vi) the reproduction and delivery to the Underwriters of copies of
the Certificate of Designation and any Blue Sky Surveys and Legal Investment
Surveys, (vii) the fees, if any, charged by rating agencies for rating the
Underwritten Securities, (viii) the fees and expenses, if any, incurred in
connection with the listing of the Underwritten Securities and, in the case of
Preferred Shares convertible into Common Stock, Common Stock issuable upon
such conversion, on any national securities exchange, and (ix) the fees and
expenses, if any, relating to clearance with the National Association of
Securities Dealers, Inc.
[If this Agreement is terminated by the Representative(s) in accordance with
the provisions of Section 4, the Company shall reimburse the Underwriters
named in the Terms Agreement for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the
Underwriters.]
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6. Indemnification and Contribution. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, except insofar
as such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished to the Company in writing by such Underwriter through
the Representative(s) expressly for use therein. The foregoing indemnity with
respect to any preliminary prospectus or any Prospectus that is supplemented
or amended shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Underwritten Securities which are the
subject thereof if such Underwriter in a timely manner received a copy of such
Prospectus (or such Prospectus as so amended or supplemented), and a copy of
the Prospectus (or the Prospectus as amended or supplemented), excluding
documents incorporated therein by reference, was not sent or given by or on
behalf of such Underwriter to such person, at or prior to the confirmation of
the sale of such Underwritten Securities to such person in any case where
delivery of a Prospectus (or an amended or supplemented Prospectus) at or
prior to the written confirmation of the sale of the Underwritten Securities
is required by the Securities Act and the untrue statement or omission or the
alleged untrue statement or omission was corrected in the Prospectus (or the
Prospectus as amended or supplemented).
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred by the Company, its directors, such officers or any such controlling
person in connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, but only with
reference to information relating to such Underwriter furnished to the Company
by such Underwriter in writing through the Representative(s) expressly for use
in the Registration Statement, any preliminary prospectus, the Prospectus or
any amendments or supplements thereto.
Promptly after receipt by an indemnified party under the first or second
paragraph in this Section 6 of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under this Section. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall
pay the reasonable expenses of legal counsel to the indemnified party as
incurred and shall be entitled to participate therein and, to the extent that
it shall wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation, and the indemnifying party shall not be
9
<PAGE>
responsible for the cost of more than one counsel for all indemnified parties
(excluding any necessary local counsel) in connection with any actions arising
from the same facts. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened action
or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim, and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by
or on behalf of any indemnified party.
If the indemnification provided for in the first or second paragraph in this
Section 6 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Underwritten Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Underwritten
Securities shall be deemed to be in the same respective proportions as the net
proceeds from the offering of such Underwritten Securities (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus Supplement, bear to the aggregate public
offering price of the Underwritten Securities. The relative fault of the
Company on the one hand and of the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this
Section 6 are several in proportion to the respective principal amounts of
Offered Securities purchased by each of such Underwriters and not joint.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 6 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution provisions contained in this Section 6 and
the representations and warranties of the Company contained herein or made
pursuant hereto shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Company, its directors or
10
<PAGE>
officers or any person controlling the Company and (iii) acceptance of and
payment for any of the Underwritten Securities.
7. Termination. This Agreement may be terminated, upon written notice given
by the Representative(s) to the Company, at any time prior to the applicable
Closing Time, if (a) after the execution and delivery of the Terms Agreement
and prior to the Closing Time (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except
as may otherwise be stated in or contemplated by the Registration Statement
and the Prospectus, any material adverse change, or any development involving
a prospective material adverse change, in the assets, business, financial
condition or results of operations of the Company and its subsidiaries taken
as a whole occurs, (ii) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange or the NASDAQ National Market (iii)
trading of any securities of the Company shall have been suspended on any
national securities exchange or on the NASDAQ National Market, (iv) a general
moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (v) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the reasonable judgment
of the Representative(s), is material and adverse, and (b) in the case of any
of the events specified in clauses (a)(i) through (v), such event, singly or
together with any other such event, makes it, in the reasonable judgment of
the Representative(s), impracticable to market the Underwritten Securities on
the terms and in the manner contemplated by the Prospectus and the Prospectus
Supplement, as may be amended or supplemented.
8. Defaulting Underwriters. If one or more of the Underwriters participating
in an offering of Underwritten Securities shall fail or refuse at the
applicable Closing Time to purchase the Initial Underwritten Securities which
it or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), and the number of Defaulted Securities is not more
than one-tenth of the number of Initial Underwritten Securities to be
purchased pursuant to the Terms Agreement, the non-defaulting Underwriters
named in such Terms Agreement shall be obligated severally in the proportions
that the amount of Initial Underwritten Securities set forth opposite their
respective names above bears to the number of Initial Underwritten Securities
set forth opposite the names of all such non-defaulting Underwriters, or in
such other proportions as the Representative(s) may specify, to purchase the
Initial Underwritten Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Initial Underwritten Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 8 by an amount in excess of (one-ninth) of such
amount of Initial Underwritten Securities without the written consent of such
Underwriter. If, at the applicable Closing Time any Underwriter or
Underwriters shall fail or refuse to purchase Initial Underwritten Securities
and the number of Initial Underwritten Securities with respect to which such
default occurs is more than one-tenth of the number of Initial Underwritten
Securities to be purchased pursuant to such Terms Agreement, and arrangements
satisfactory to the Representative(s) and the Company for the purchase of such
Initial Underwritten Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the
Representative(s) or the Company shall have the right to postpone the Closing
Time but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering of the Underwritten Securities.
11
<PAGE>
9. Parties. This Agreement shall inure to the benefit of and be binding upon
the Company and any Underwriter who becomes a party hereto, and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto or thereto and their respective successors and the
controlling persons and officers and directors referred to in Section 6 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the parties and their respective successors
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Underwritten Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
10. Counterparts. The Underwriting Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
13. Notices. All references herein and in the Underwriting Agreement to the
Representative(s) when made in connection with any notice to or communication
by or with such Representative(s) shall, if there is more than one
representative, be deemed to be to the Lead Representative, as designated in
the Terms Agreement, and all notices shall be given to such Lead
Representative at the address set forth therein.
12
<PAGE>
Exhibit A
EL PASO NATURAL GAS COMPANY
(A DELAWARE CORPORATION)
(TITLE OF SECURITIES)
DELAYED DELIVERY CONTRACT
Dated: ( ), 199( )
El Paso Natural Gas Company
100 North Stanton Street
El Paso, Texas 79901
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from El Paso Natural Gas Company
(the "Company"), and the Company agrees to sell to the undersigned on
( ), 19( ) (the "Delivery Date"), of the Company's (insert title
of security) (the "Securities"), offered by the Company's Prospectus dated
( ), 19( ), as supplemented by the Prospectus Supplement dated
( ), 19( ), receipt of which is hereby acknowledged at a purchase
price of ( ) to the Delivery Date, and on the further terms and
conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Company (by wire transfer) (or its
order by certified or official bank check in New York Clearing House funds) at
the office of Fried, Frank, Harris, Shriver & Jacobson, on the Delivery Date,
upon delivery to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and registered in
such names as the undersigned may designate by written or telegraphic
communication addressed to the Company not less than five full business days
prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date shall be subject only to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before ( ),
19( ), shall have sold to the Underwriters of the Securities (the
"Underwriters") such number of the Securities as is to be sold to them
pursuant to the Terms Agreement dated ( ), 19( ), between the
Company and the Underwriters. The obligation of the undersigned to take
delivery of and make payment for Securities shall not be affected by the
failure of any purchaser to take delivery of and make payments for Securities
pursuant to other contracts similar to this contract. The undersigned
represents and warrants to you that its investment in the Securities is not,
as of the date hereof, prohibited under the laws of any jurisdiction to which
the undersigned is subject and which govern such investment.
Promptly after completion of the sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
A-1
<PAGE>
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment
or purchase, and that, upon acceptance hereof by the Company and mailing or
delivery or a copy as provided below, this contract will constitute a valid
and binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery Contracts
for a number of Securities in excess of ( ) and that the acceptance of
any Delayed Delivery Contract is in the Company's sole discretion and, without
limiting the foregoing, need not be on a first-come, first-served basis. If
this contract is acceptable to the Company, it is requested that the Company
sign the form of acceptance on a copy hereof and mail or deliver a signed copy
hereof to the undersigned at its address set forth below. This will become a
binding contract between the Company and the undersigned when such copy is so
mailed or delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
-------------------------------------
(Name of Purchaser)
By: _________________________________
(Title)
-----------------------------------
-----------------------------------
(Address)
Accepted as of the date first above
written.
El Paso Natural Gas Company
By: _________________________________
A-2
<PAGE>
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed are as follows:
(Please print.)
<TABLE>
<CAPTION>
TELEPHONE NO.
(INCL. AREA
NAME CODE)
---- -------------
<S> <C>
</TABLE>
A-3
<PAGE>
Exhibit B
Opinion of [ ] Counsel for the Company
The opinion of counsel for the Company to be delivered pursuant to Section
4(d) of the Underwriting Agreement shall be to the effect that:
(i) the Registration Statement has become effective under the Securities
Act and, to the best knowledge of such counsel, no stop order suspending
its effectiveness of the Registration Statement is in effect and no
proceedings for that purpose are pending before or, to such counsel's
knowledge, contemplated by the Commission;
(ii) the Underwriting Agreement and the Delayed Delivery Contracts, if
any, have been duly authorized, executed and delivered by the Company;
(iii) the Underwritten Securities have been duly authorized, executed,
issued and delivered and are fully paid and nonassessable, and the issuance
of the Underwritten Securities is not subject to any preemptive or similar
rights;
(iv) if any of the Underwritten Securities are convertible into shares of
Common Stock, the shares of Common Stock issuable upon conversion thereof
have been duly authorized and reserved for issuance upon such conversion
and, when issued upon such conversion, will be validly issued, fully paid
and nonassessable, and the issuance of such shares upon such conversion
will not be subject to any preemptive or similar rights;
(v) the execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement will not
violate any provision of applicable law or the Restated Certificate of
Incorporation, as amended, or By-laws of the Company;
(vi) no consent, approval, authorization or order of or qualification
with any U.S. or New York or (with respect to matters arising under the
Delaware General Corporation Law) Delaware body or agency is required for
the performance by the Company of its obligations under the Underwriting
Agreement, the Indenture or the Underwritten Securities, except such as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Underwritten Securities or except
where failure to obtain such consent, approval, authorization, order or
qualification would not, individually or in the aggregate, have a Material
Adverse Effect;
(vii) the statements (A) in the Prospectus Supplement under the caption
"( )" and in the Basic Prospectus under the caption "Description of
Capital Stock" and (B) in the Registration Statement under Item 15, insofar
as such statements constitute a summary of the legal matters referred to
therein, fairly present the information disclosed therein in all material
respects;
(viii) the Company is not (i) an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, and the rules and
regulations promulgated by the Commission thereunder, or (ii) a "holding
company" within the meaning of, or subject to regulation under, the Public
Utility Holding Company Act of 1935, as amended, and the rules and
regulations promulgated by the Commission thereunder;
(ix) such counsel (A) is of the opinion that each document, if any, filed
pursuant to the Exchange Act and incorporated by reference in the
Prospectus (except for financial statements and schedules and other
financial or statistical data included therein as to which such counsel
need not express any opinion) complied when so filed as to form in all
material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (B) believes that (except for
financial statements and schedules and other financial or statistical data
as to which such counsel need not express any belief) each
B-1
<PAGE>
part of the Registration Statement, when such part became effective, did
not, and as of the date such opinion is delivered, does not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (C) is of the opinion that the Registration Statement and
Prospectus (except for financial statements and schedules and other
financial or statistical data included therein as to which such counsel
need not express any opinion) comply as to form in all material respects
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder, and (D) believes that (except for
financial statements and schedules and other financial or statistical data
as to which such counsel need not express any belief) the Prospectus as of
the date such opinion is delivered does not contain an untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
With respect to paragraph (ix) above, Fried, Frank, Harris, Shriver &
Jacobson may state that (A) their opinion and belief is based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification, except as
specified, (B) no opinion or belief is being expressed with respect to Tenneco
Inc. and its businesses other than Tenneco Energy, [and (C) no opinion or
belief is being expressed with respect to documents incorporated by reference
in the Registration Statement and Prospectus].
In addition, such counsel shall state that in the course of the preparation
by the Company of the Registration Statement, the Prospectus and the
Prospectus Supplement, such counsel participated in conferences with certain
of the officers and representatives of the Company, at which the Registration
Statement, the Prospectus and the Prospectus Supplement were discussed. Given
the limitations inherent in the independent verification of factual matters
and the character of determinations involved in the registration process, such
counsel does not pass upon and need not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or the Prospectus Supplement, except as
specifically described in the opinion in paragraph ( ) above. Subject to the
foregoing and on the basis of the information such counsel gained in the
performance of the services referred to above, including information obtained
from officers and other representatives of the Company, such counsel shall
state that no facts have come to such counsel's attention that have caused it
to believe that the Registration Statement, at the time it became effective
[or at the time an Annual Report on Form 10-K was filed (whichever is later)],
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectus and any Prospectus
Supplement, as of their respective dates [or at the date hereof], included or
includes, as the case may be, any untrue statement of a material fact or
omitted or omits, as the case may be, to state a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading. Such counsel need express no view or
belief, however, with respect to (i) financial statements, schedules or notes
thereto or other financial and statistical data included in or omitted from
the Registration Statement or Prospectuses or any Prospectus Supplement or
(ii) any part of the Registration Statement.
B-2
<PAGE>
Exhibit C
Opinion of ( ), (General Counsel) (Associate General
Counsel) of the Company
The opinion of ( ), general counsel of the
Company, to be delivered pursuant to Section 4(d) of the Underwriting
Agreement shall be to the effect that:
(i) the Company has been duly incorporated and is validly existing in
good standing under the laws of the State of Delaware;
(ii) (A) the Company has the corporate power and authority to own its
properties and to conduct its business as described in the Prospectus, as
amended or supplemented, and (B) the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or to be in good standing would not have a
Material Adverse Effect;
(iii) each Subsidiary of the Company has been duly incorporated and is a
corporation duly organized, validly existing in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its properties and to conduct its business as described in
the Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a Material Adverse Effect;
(iv) the execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement will not
violate, to the best of such counsel's knowledge, (A) any agreement or
other instrument binding upon the Company or any Subsidiaries, or (B) to
the best of such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any Subsidiary except, in each case, for such violations as would not,
individually or in the aggregate, have a Material Adverse Effect;
(v) after due inquiry, such counsel does not know of any legal or
governmental proceedings instituted or threatened against the Company or
any of its subsidiaries which would restrict the issuance and sale of the
Underwritten Securities as contemplated by the Prospectus, or would be
required to be disclosed therein and which is not disclosed; also, such
counsel does not know of any statutes, regulations, contracts or other
documents which are required to be summarized in the Registration Statement
or the Prospectus or to be filed or incorporated by reference as exhibits
to the Registration Statement which are not summarized, filed or
incorporated as required;
(vi) the statements under the caption (A) "Item 3--Legal Proceedings" of
the Company's most recent annual report on Form 10-K incorporated by
reference into the Prospectus and (B) "Item 1--Legal Proceedings" of Part
II of the Company's quarterly reports on Form 10-Q, if any, filed since
such annual report, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information disclosed therein in all material
respects; and
(vii) such counsel (A) believes that (except for financial statements and
schedules and other financial or statistical data as to which such counsel
need not express any belief) each part of the Registration Statement, when
such part became effective, did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (B) is
of the opinion that the Registration Statement and Prospectus (except for
financial statements and schedules and other financial or statistical data
included therein as to which such counsel need not express any opinion)
comply as to form in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder, and (C)
believes that (except for financial statements and schedules and other
financial or statistical data as to which such counsel need not express any
belief) the Prospectus as of the date such opinion is delivered does not
contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
C-1
<PAGE>
With respect to clause (vii) above, such counsel may state that their
opinion and belief is based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendments or supplements
thereto (other than the documents incorporated by reference) and upon review
and discussion of the contents thereof (including documents incorporated by
reference) but are without independent check or verification, except as
specified.
Such counsel may rely, to the extent their opinions are based upon matters
governed by the laws of other jurisdictions, upon the opinion of other counsel
admitted to the bar in such jurisdictions.
With respect to paragraph (vii) above, such counsel may state that (A) its
opinion and belief is based upon its participation in the preparation of the
Registration Statement and Prospectus and any amendments or Supplements
thereto and review and discussion of the contents thereof, but are without
independent check or verification, except as specified, and (B) no opinion or
belief is being expressed with respect to Tenneco Inc. and its businesses
other than Tenneco Energy.
In addition, such counsel shall state that in the course of the preparation
by the Company of the Registration Statement, the Prospectus and the
Prospectus Supplement, such counsel participated in conferences with certain
of the officers and representatives of the Company, at which the Registration
Statement, the Prospectus and the Prospectus Supplement were discussed. Given
the limitations inherent in the independent verification of factual matters
and the character of determinations involved in the registration process, such
counsel does not pass upon and need not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or the Prospectus Supplement, except as
specifically described in the opinion in paragraph ( ) above. Subject to the
foregoing and on the basis of the information such counsel gained in the
performance of the services referred to above, including information obtained
from officers and other representatives of the Company, such counsel shall
state that no facts have come to such counsel's attention that have caused it
to believe that the Registration Statement, at the time it became effective
[or at the time an Annual Report on Form 10-K was filed (whichever is later)],
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectus and any Prospectus
Supplement, as of their respective dates [or at the date hereof], included or
includes, as the case may be, any untrue statement of a material fact or
omitted or omits, as the case may be, to state a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading. Such counsel need express no view or
belief, however, with respect to (i) financial statements, schedules or notes
thereto or other financial and statistical data included in or omitted from
the Registration Statement or Prospectuses or any Prospectus Supplement or
(ii) any part of the Registration Statement.
C-2
<PAGE>
[DRAFT--10/31/96]
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
EXHIBIT 4.1
EL PASO NATURAL GAS COMPANY
TO
THE CHASE MANHATTAN BANK
TRUSTEE
----------------
INDENTURE
DATED AS OF , 1996
----------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
EL PASO NATURAL GAS COMPANY
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
--------------- -----------------
<C> <S> <C>
(S) 310(a)(1) ............................................................... 609
(a)(2) ............................................................... 609
(a)(3) ............................................................... Not Applicable
(a)(4) ............................................................... Not Applicable
(b) ............................................................... 608
............................................................... 610
(S) 311(a) ............................................................... 613
(b) ............................................................... 613
(S) 312(a) ............................................................... 701
............................................................... 702
(b) ............................................................... 702
(c) ............................................................... 702
(S) 313(a) ............................................................... 703
(b) ............................................................... 703
(c) ............................................................... 703
(d) ............................................................... 703
(S) 314(a) ............................................................... 704
(a)(4) ............................................................... 101
............................................................... 1004
(b) ............................................................... Not Applicable
(c)(1) ............................................................... 101
............................................................... 102
(c)(2) ............................................................... 101
............................................................... 102
(c)(3) ............................................................... Not Applicable
(d) ............................................................... Not Applicable
(e) ............................................................... 102
(S) 315(a) ............................................................... 601
(b) ............................................................... 602
(c) ............................................................... 601
(d) ............................................................... 601
(e) ............................................................... 514
(S) 316(a) ............................................................... 101
(a)(1)(A) ............................................................... 502
............................................................... 512
(a)(1)(B) ............................................................... 513
(a)(2) ............................................................... Not Applicable
(b) ............................................................... 508
(c) ............................................................... 104
(S) 317(a)(1) ............................................................... 503
(a)(2) ............................................................... 504
(b) ............................................................... 1003
(S) 318(a) ............................................................... 107
</TABLE>
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
----------------
PAGE
----
PARTIES................................................................... 1
RECITALS OF THE COMPANY................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions............................................... 1
Act....................................................... 1
Affiliate................................................. 1
Authenticating Agent...................................... 2
Authorized Newspaper...................................... 2
Bankruptcy Law............................................ 2
Board of Directors........................................ 2
Board Resolution.......................................... 2
Business Day.............................................. 2
Commission................................................ 2
Company................................................... 2
Company Request or Company Order.......................... 2
Consolidated Net Tangible Assets.......................... 2
Corporate Trust Office.................................... 3
corporation............................................... 3
covenant defeasance....................................... 3
Custodian................................................. 3
Debt...................................................... 3
Default................................................... 3
Defaulted Interest........................................ 3
defeasance................................................ 3
Definitive Security....................................... 3
Depositary................................................ 3
Dollar or $............................................... 3
Event of Default.......................................... 3
Exchange Act.............................................. 3
Funded Debt............................................... 3
Global Security........................................... 3
Holder.................................................... 3
Indenture................................................. 3
interest.................................................. 4
Interest Payment Date..................................... 4
Lien...................................................... 4
Maturity.................................................. 4
Notice of Default......................................... 4
Officer's Certificate..................................... 4
Opinion of Counsel........................................ 4
Original Issue Discount Security.......................... 4
i
<PAGE>
<TABLE>
<CAPTION>
PAGE
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<C> <S> <C>
Outstanding.............................................. 4
Paying Agent............................................. 5
Periodic Offering........................................ 5
Permitted Liens.......................................... 5
Person................................................... 5
Place of Payment......................................... 6
Predecessor Security..................................... 6
Principal Property....................................... 6
Redemption Date.......................................... 6
Redemption Price......................................... 6
Regular Record Date...................................... 6
Restricted Subsidiary.................................... 6
Sale-Leaseback Transaction............................... 6
Securities............................................... 6
Security Register and Security Registrar................. 6
Special Record Date...................................... 6
Stated Maturity.......................................... 6
Subsidiary............................................... 6
Trust Indenture Act...................................... 7
Trustee.................................................. 7
U.S. Government Obligations.............................. 7
Vice President........................................... 7
Section 102. Compliance Certificates and Opinions..................... 7
Section 103. Form of Documents Delivered to Trustee................... 8
Section 104. Acts of Holders; Record Dates............................ 8
Section 105. Notices, Etc., to Trustee and Company.................... 9
Section 106. Notice to Holders; Waiver................................ 9
Section 107. Conflict with Trust Indenture Act........................ 10
Section 108. Effect of Headings and Table of Contents................. 10
Section 109. Successors and Assigns................................... 10
Section 110. Separability Clause...................................... 10
Section 111. Benefits of Indenture.................................... 10
Section 112. Governing Law............................................ 10
Section 113. Legal Holidays........................................... 10
Section 114. Language of Notices, Etc. ............................... 11
Section 115. Incorporators, Stockholders, Officers and Directors of the
Company Exempt from Individual Liability................. 11
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.......................................... 12
Section 202. Form of Face of Security................................. 12
Section 203. Form of Reverse of Security.............................. 14
Section 204. Global Securities........................................ 19
Section 205. Form of Trustee's Certificate of Authentication.......... 20
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
PAGE
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ARTICLE THREE
THE SECURITIES
<C> <S> <C>
Section 301. Amount Unlimited; Issuable in Series.................... 21
Section 302. Denominations........................................... 23
Section 303. Execution, Authentication, Delivery and Dating.......... 23
Section 304. Temporary Securities.................................... 24
Section 305. Registration, Registration of Transfer and Exchange..... 25
Section 306. Mutilated, Destroyed, Lost and Stolen Securities........ 26
Section 307. Payment of Interest; Interest Rights Preserved.......... 27
Section 308. Persons Deemed Owners................................... 28
Section 309. Cancellation............................................ 28
Section 310. Computation of Interest................................. 29
Section 311. CUSIP Numbers........................................... 29
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture................. 30
Section 402. Application of Trust Money.............................. 30
ARTICLE FIVE
REMEDIES
Section 501. Events of Default....................................... 32
Section 502. Acceleration of Maturity; Rescission and Annulment...... 32
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee................................................. 33
Section 504. Trustee May File Proofs of Claim........................ 34
Section 505. Trustee May Enforce Claims Without Possession of Securi-
ties.................................................... 34
Section 506. Application of Money Collected.......................... 34
Section 507. Limitation on Suits..................................... 34
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.................................... 35
Section 509. Restoration of Rights and Remedies...................... 35
Section 510. Rights and Remedies Cumulative.......................... 35
Section 511. Delay or Omission Not Waiver............................ 35
Section 512. Control by Holders...................................... 36
Section 513. Waiver of Past Defaults................................. 36
Section 514. Undertaking for Costs................................... 36
Section 515. Waiver of Usury, Stay or Extension Laws................. 36
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
ARTICLE SIX
THE TRUSTEE
<C> <S> <C>
Section 601. Certain Duties and Responsibilities..................... 37
Section 602. Notice of Defaults...................................... 37
Section 603. Certain Rights of Trustee............................... 37
Section 604. Not Responsible for Recitals or Issuance of Securities.. 38
Section 605. May Hold Securities..................................... 38
Section 606. Money Held in Trust..................................... 38
Section 607. Compensation and Reimbursement.......................... 38
Section 608. Disqualification; Conflicting Interests................. 39
Section 609. Corporate Trustee Required; Eligibility................. 39
Section 610. Resignation and Removal; Appointment of Successor....... 39
Section 611. Acceptance of Appointment by Successor.................. 41
Section 612. Merger, Conversion, Consolidation or Succession to Busi-
ness.................................................... 41
Section 613. Preferential Collection of Claims Against Company....... 42
Section 614. Appointment of Authenticating Agent..................... 42
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Hold-
ers..................................................... 44
Section 702. Preservation of Information; Communications to Holders.. 44
Section 703. Reports by Trustee...................................... 44
Section 704. Reports by Company...................................... 44
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.... 46
Section 802. Successor Substituted................................... 46
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders...... 47
Section 902. Supplemental Indentures with Consent of Holders......... 47
Section 903. Execution of Supplemental Indentures.................... 48
Section 904. Effect of Supplemental Indentures....................... 48
Section 905. Conformity with Trust Indenture Act..................... 48
Section 906. Reference in Securities to Supplemental Indentures...... 49
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
ARTICLE TEN
COVENANTS
<C> <S> <C>
Section 1001. Payment of Principal, Premium and Interest.............. 50
Section 1002. Maintenance of Office or Agency......................... 50
Section 1003. Money for Securities Payments to Be Held in Trust....... 50
Section 1004. Statement by Officers as to Default..................... 51
Section 1005. Existence............................................... 51
Section 1006. Limitations on Liens.................................... 52
Section 1007. Restriction of Sale-Leaseback Transaction............... 53
Section 1008. Waiver of Certain Covenants............................. 54
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article................................ 55
Section 1102. Election to Redeem; Notice to Trustee................... 55
Section 1103. Selection by Trustee of Securities to Be Redeemed....... 55
Section 1104. Notice of Redemption.................................... 55
Section 1105. Deposit of Redemption Price............................. 56
Section 1106. Securities Payable on Redemption Date................... 56
Section 1107. Securities Redeemed in Part............................. 56
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article................................ 57
Section 1202. Satisfaction of Sinking Fund Payments with Securities... 57
Section 1203. Redemption of Securities for Sinking Fund............... 57
ARTICLE THIRTEEN
DEFEASANCE
Section 1301. Applicability of Article................................ 58
Section 1302. Legal Defeasance........................................ 58
Section 1303. Covenant Defeasance..................................... 59
Section 1304. Application by Trustee of Funds Deposited for Payment of
Securities.............................................. 60
Section 1305. Repayment of Moneys Held by Paying Agent................ 60
</TABLE>
- --------
Note: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
v
<PAGE>
INDENTURE dated as of , 1996, between EL PASO NATURAL GAS COMPANY, a
corporation duly organized and existing under the laws of Delaware (the
"Company"), having its principal office at One Paul Kayser Center, 100 North
Stanton Street, El Paso, Texas 79901, 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 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
1
<PAGE>
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 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.
2
<PAGE>
"Corporate Trust Office" means the office 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.
"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.
3
<PAGE>
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"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 cancelled 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 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,
4
<PAGE>
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, 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.
5
<PAGE>
"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 are 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.
"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
6
<PAGE>
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.
"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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<PAGE>
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 an
electronic transmission) 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 an electronic transmission) 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 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.
8
<PAGE>
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: Corporate
Trustee Administration Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed
to it at One Paul Kayser Center, 100 North Stanton Street, El Paso, Texas
79901, 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
9
<PAGE>
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.
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.
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<PAGE>
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.
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.
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<PAGE>
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 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 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 NATURAL GAS COMPANY
[TITLE OF SECURITY]
NO. U.S.$
EL PASO NATURAL GAS COMPANY, a corporation duly organized 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
12
<PAGE>
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].
[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.
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<PAGE>
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
El Paso Natural Gas Company
By: _________________________________
[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 , 1996 (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>
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
14
<PAGE>
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, 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
YEAR OF THE SINKING FUND OF THE SINKING FUND PRICE
---- ------------------- -------------------------
<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.]
[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.]
15
<PAGE>
[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
Securities at the time Outstanding to be affected (voting as one class). The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
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 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. As provided in the Indenture
and subject to certain limitations therein, Definitive Securities of this
series may be exchanged, at the option of the Holder thereof, for a portion of
this Global Security of a like aggregate principal amount upon surrender of
Definitive Securities at the office or agency of the Company in The City of
New York. Upon exchange of any portion of this Global Security for Definitive
Securities of this series or Definitive Securities of this series for portion
of this Global Security, the Security Registrar shall endorse Schedule A of
this Global Security to reflect the
16
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reduction or increase, as the case may be, of its principal amount by an
amount equal to the aggregate principal amount of the Definitive Securities of
this series so issued or surrendered in exchange, whereupon the principal
amount hereof shall be reduced or increased for all purposes by the amount so
exchanged and noted.
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.
[If a Definitive Security, insert--As provided in the Indenture and subject
to certain limitations therein, at the option of the Holder, this Security may
be exchanged for a portion of a Global Security of this series of a like
aggregate principal amount upon surrender of this Security at the office or
agency of the Company in The City of New York.]
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 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.
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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 NATURAL GAS COMPANY 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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[If a Global Security, insert as a separate page--
SCHEDULE A
SCHEDULE OF EXCHANGES
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT NOTATION MADE ON
PRINCIPAL AMOUNT FOLLOWING SUCH BEHALF OF THE SECURITY
DATE EXCHANGE MADE EXCHANGED EXCHANGE REGISTRAR
- ------------------ ---------------- ---------------- ----------------------
<S> <C> <C> <C>
- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ----------
- ---------- ---------- ---------- ----------
]
- ---------- ---------- ---------- ----------
</TABLE>
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).
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<PAGE>
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.
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
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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;
(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;
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<PAGE>
(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 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(5)).
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.
22
<PAGE>
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 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
Period 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,
(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
23
<PAGE>
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 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.
24
<PAGE>
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 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 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.
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<PAGE>
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, (2) the Company
executes and delivers to the Trustee a Company Order that such Global Security
shall be so transferable, registrable and exchangeable, and such transfers
shall be registrable, or (3) 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 or portion thereof
may be 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.
Except as otherwise provided as contemplated by Section 301, if Securities
of a series are issued in whole or in part in the form of one or more Global
Securities, then at the option of the Holder, Definitive Securities of such
series may be exchanged for a portion of a Global Security of the same series,
of a like aggregate principal amount and tenor upon surrender of the
Definitive Securities to be exchanged at the office or agency of the Company
maintained pursuant to Section 1002 for such purpose.
Upon exchange of any portion of a Global Security for Definitive Securities
of the same series or Definitive Securities of the same series and tenor for a
portion of a Global Security, the Security Registrar shall endorse Schedule A
of such Global Security to reflect the reduction or increase, as the case may
be, of its principal amount by an amount equal to the aggregate principal
amount of the Definitive Securities so issued or surrendered in exchange,
whereupon the principal amount of such Global Security shall be reduced or
increased, as the case may be, for all purposes by the amount so exchanged and
noted.
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
26
<PAGE>
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.
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
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the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as
in this Clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such series at his address
as it appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section 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 cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which
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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 cancelled
by the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee
shall be disposed of in accordance with its customary procedures, and the
Trustee shall thereafter deliver to the Company a certificate with respect to
such disposition.
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.
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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
(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
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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.
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
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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.
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.
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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 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's 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.
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
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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
(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.
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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.
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,
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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;
(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.
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
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(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.
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.
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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 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.
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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 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
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or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or 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 Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail
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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
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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 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, 1996.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by
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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.
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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 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.
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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 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
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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
(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.
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.
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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.
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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 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.
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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.
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.
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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 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 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;
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(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, 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:
(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
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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.
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,
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(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 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.
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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.
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.
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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 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
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(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;
(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
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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.
----------------
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 Natural Gas Company
By: _________________________________
Name:
Title:
The Chase Manhattan Bank
By: _________________________________
Name:
Title:
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State of New York ss.:
County of New York}
On the day of , 1996, before me personally came ,
to me known, who, being by me duly sworn, did depose and say that he is
of El Paso Natural Gas Company, one
of the corporations described in and which executed the foregoing instrument;
and that he signed his name thereto by authority of the Board of Directors of
said corporation.
-------------------------------------
State of New York
County of New York} ss.:
On the day of , 1996, before me personally came , to me
known, who, being by me duly sworn, did depose and say that he is
of The Chase Manhattan Bank, one of the corporations described
in and which executed the foregoing instrument; and that he signed his name
thereto by like authority.
-------------------------------------
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Amendment No. 1 to the
Registration Statement on Form S-3 (No. 333-14617), Post-Effective Amendment
No. 2 to Registration Statement No. 33-55153 and Post-Effective Amendment No.
4 to Registration Statement No. 33-44327 (collectively, the "Registration
Statements"), of our report dated March 15, 1996, on our audits of the
financial statements and financial statement schedule of El Paso Natural Gas
Company (the "Company") as of December 31, 1995 and 1994, and for the years
ended December 31, 1995, 1994 and 1993, which report is included in the
Company's Annual Report on Form 10-K for the year ended December 31, 1995. We
also consent to (i) the reference to our firm under the caption "Experts" in
the Registration Statements and (ii) the incorporation by reference into the
Registration Statements of our reports and the references to our firm which
appear in the Company's Preliminary Schedule 14A, as amended (File No. 1-
2700), filed as Exhibit 99 to the Company's Report on Form 8-K, dated October
22, 1996.
Coopers & Lybrand L.L.P.
El Paso, Texas
October 31, 1996
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Amendment No. 1 to the Registration Statement on Form S-3
(No. 333-14617), Post-Effective Amendment No. 2 to Registration Statement No.
33-55153 and Post-Effective Amendment No. 4 to Registration Statement
No. 33-44327 (collectively, the "Registration Statements") of our reports
(which are included in Amendment No. 1 to the Preliminary Schedule 14A of El
Paso Natural Gas Company ("El Paso"), which is included in El Paso's Current
Report on Form 8-K dated October 22, 1996) dated August 19, 1996 for (i) the
Businesses of Tenneco Energy and (ii) the Businesses of New Tenneco; and to
all references to our Firm included in the Registration Statements.
Arthur Andersen LLP
Houston, Texas
October 31, 1996
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent in this Amendment No. 1
to the Registration Statement on Form S-3 (No. 333-14617), Post-Effective
Amendment No. 2 to Registration Statement No. 33-55153 and Post-Effective
Amendment No. 4 to Registration Statement No. 33-44327 (collectively, the
"Registration Statements"), to the use of our report (which is included in
Amendment No. 1 to the Preliminary Schedule 14A of El Paso Natural Gas Company
("El Paso"), which is included in El Paso's Current Report on Form 8-K dated
October 22, 1996) dated October 1, 1996 for the Businesses of Newport News;
and to all references to our Firm included in the Registration Statements.
Arthur Andersen LLP
Washington, D.C.
October 31, 1996
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in this
Amendment No. 1 to the Registration Statement (Form S-3) of El Paso Natural Gas
Company and to the incorporation by reference therein of our report dated August
9, 1996 with respect to the combined financial statements of Mobil Plastics
Division of Mobil Oil Corporation for the period December 29, 1994 to November
17, 1995 and the year ended December 28, 1994 included as an Exhibit to the
Current Report of El Paso Natural Gas Company on Form 8-K dated October 22, 1996
filed with the Securities and Exchange Commission.
Ernst & Young LLP
Buffalo, New York
October 31, 1996
