<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON , 1997
REGISTRATION NO. 333-
POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO. 333-14617
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT
AND POST-EFFECTIVE AMENDMENT NO. 1
UNDER THE SECURITIES ACT OF 1933
---------------------
EL PASO NATURAL GAS COMPANY
EL PASO ENERGY CAPITAL TRUST I
EL PASO ENERGY CAPITAL TRUST II
EL PASO ENERGY CAPITAL TRUST III
(Exact name of registrant as specified in its charter)
<TABLE>
<C> <C>
DELAWARE 74-0608280
DELAWARE 76-6133070
DELAWARE 76-6133071
DELAWARE 76-6133072
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
EL PASO ENERGY BUILDING BRITTON WHITE, JR.
1001 LOUISIANA EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
HOUSTON, TEXAS 77002 EL PASO ENERGY BUILDING
(713) 757-2131 1001 LOUISIANA
(Address, including zip code, and telephone number, HOUSTON, TEXAS 77002
including area code, of registrant's principal (713) 757-2131
executive offices) (Name, address, including zip code, and telephone
number, including area code, of agent for service)
</TABLE>
---------------------
Copies to:
G. MICHAEL O'LEARY
ANDREWS & KURTH L.L.P.
600 TRAVIS, SUITE 4200
HOUSTON, TEXAS 77002
(713) 220-4360
---------------------
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. [ ]
---------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
(See Calculation Table and Footnotes on Following 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 approximately $250 million of securities previously registered pursuant to
the Registration Statement on Form S-3 (File No. 333-14617) and not issued,
which other registration statement, as amended, previously filed by El Paso
Natural Gas Company has been declared effective.
This registration statement constitutes post-effective amendment No. 1 to
the Registration Statement on Form S-3 (File No. 333-14617) pursuant to which
the total amount of securities previously registered thereunder may be offered
as Senior Debt Securities, Subordinated Debt Securities, Preferred Stock of EPG
and Common Stock of EPG without limitation as to class of securities, together
with the securities registered hereunder, through the use of the combined
Prospectus included herein. In the event any such previously registered
securities is offered prior to the effective date of this registration
statement, they will not be included in any Prospectus hereunder.
================================================================================
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER UNIT(1)(2) PRICE(1)(2) FEE(1)
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Senior Debt Securities of El Paso
Natural Gas Company ("EPG")......
- ------------------------------------------------------------------------------------------------------------------
Preferred Stock of EPG(3)..........
- ------------------------------------------------------------------------------------------------------------------
Common Stock of EPG(3).............
- ------------------------------------------------------------------------------------------------------------------
Trust Preferred Securities of El
Paso Energy Capital Trust I ("EPE
Trust I"), El Paso Energy Capital
Trust II ("EPE Trust II") and El
Paso Energy Capital Trust III
("EPE Trust III")................
- ------------------------------------------------------------------------------------------------------------------
Subordinated Debt Securities of
EPG..............................
- ------------------------------------------------------------------------------------------------------------------
Guarantees by EPG of Trust
Preferred Securities(4)..........
- ------------------------------------------------------------------------------------------------------------------
Total..................... $650,000,000 100% $650,000,000 $191,750
==================================================================================================================
</TABLE>
(1) There are being registered hereunder such presently indeterminate (a) number
of Trust Preferred Securities of EPE Trust I, EPE Trust II and EPE Trust
III, (b) number of shares of Common Stock and Preferred Stock of EPG as may
be issued from time to time at indeterminate prices and (c) principal amount
of Senior Debt Securities and Subordinated Debt Securities with an aggregate
initial offering price not to exceed $650 million.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(o) of the Securities Act of 1933, as amended.
(3) Also includes such indeterminate number of shares of Preferred Stock or
Common Stock as may be issued upon conversion or exchange for any Debt
Securities or Trust Preferred Securities that provide for conversion or
exchange into Preferred Stock or Common Stock. No separate consideration
will be received for the Preferred Stock or Common Stock issuable upon
conversion of or in exchange for such securities. Includes EPG Preferred
Stock Purchase Rights relating to each share of Common Stock of EPG. The EPG
Preferred Stock Purchase Rights are associated with and trade with the EPG
Common Stock. See "Capital Stock of the Company -- Shareholder Rights
Agreement" in the prospectus contained herein.
(4) Includes the rights of holders of the Trust Preferred Securities under
certain Guarantees and back-up undertakings, consisting of obligations by
EPG to provide certain indemnities in respect of, and pay and be responsible
for certain expenses, costs, liabilities, and debts of, as applicable, EPE
Trust I, EPE Trust II and EPE Trust III, as set forth in the Declaration of
Trust and the Subordinated Debt Securities Indenture, in each case as
further described in the Registration Statement. No separate consideration
will be received for any such Guarantees or any back-up undertakings.
<PAGE> 3
SUBJECT TO COMPLETION DATED , 1997
PROSPECTUS
EL PASO NATURAL GAS COMPANY
SENIOR DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
---------------------
EL PASO ENERGY CAPITAL TRUST I
EL PASO ENERGY CAPITAL TRUST II
EL PASO ENERGY CAPITAL TRUST III
TRUST PREFERRED SECURITIES
(GUARANTEED TO THE EXTENT SET FORTH HEREIN BY EL PASO NATURAL GAS COMPANY)
El Paso Natural Gas Company, a Delaware corporation doing business as El
Paso Energy Corporation ("EPG" or the "Company") may offer and sell from time to
time in one or more series its (i) unsecured debt securities which may be senior
(the "Senior Debt Securities") or subordinated (the "Subordinated Debt
Securities") consisting of notes, debentures or other evidences of indebtedness,
(ii) shares of preferred stock, par value $.01 per share (the "Preferred
Stock"), and (iii) shares of common stock, par value $3.00 per share (the
"Common Stock").
El Paso Energy Capital Trust I, El Paso Energy Capital Trust II and El Paso
Energy Capital Trust III (individually, an "EPE Trust" and collectively, the
"EPE Trusts"), each a statutory business trust formed under the laws of the
State of Delaware, may offer and sell, from time to time, trust preferred
securities, representing undivided beneficial interests in the assets of the
respective EPE Trusts ("Trust Preferred Securities"). EPG will be the beneficial
owner of all the beneficial ownership interests represented by common securities
of each of the EPE Trusts (the "Trust Common Securities" and, together with the
Trust Preferred Securities, the "Trust Securities"). Holders of the Trust
Preferred Securities will be entitled to receive preferential cumulative cash
distributions accumulating from the date of original issuance and payable
periodically as specified in the applicable supplement to this prospectus (a
"Prospectus Supplement"). Subordinated Debt Securities may be issued and sold by
EPG from time to time in one or more series to an EPE Trust, or a trustee of
such EPE Trust, in connection with the investment of the proceeds from the
offering of Trust Securities of such EPE Trust. The Subordinated Debt Securities
purchased by an EPE Trust may be subsequently distributed pro rata to holders of
Trust Securities in connection with the dissolution of such EPE Trust upon the
occurrence of certain events as may be described in a related Prospectus
Supplement. The payment of distributions with respect to Trust Preferred
Securities of each of the EPE Trusts out of monies held by each of the EPE
Trusts, and payment on liquidation, redemption or otherwise with respect to such
Trust Preferred Securities, will be guaranteed by EPG to the extent described
herein (each a "Trust Guarantee"). See "Description of the Trust Guarantees."
EPG's obligations under the Trust Guarantees will be subordinate and junior in
right of payment to all other liabilities of EPG and rank pari passu with the
most senior preferred stock, if any, issued from time to time by EPG.
The Senior Debt Securities, the Subordinated Debt Securities, the Preferred
Stock and the Common Stock offered hereby are collectively hereinafter referred
to as the "EPG Securities" and, together with the Trust Securities, the
"Securities." The Securities (excluding Trust Preferred Securities) will be
limited to an aggregate initial public offering price not to exceed
approximately $900 million (an aggregate not to exceed $650 million in Trust
Preferred Securities), or, in the case of Senior Debt Securities and
Subordinated Debt Securities, the equivalent thereof in one or more foreign
currencies, including composite currencies. The Securities may be offered,
separately or together, in separate series, in amounts, at prices and on terms
to be determined at the time of sale and set forth in a related Prospectus
Supplement.
Certain specific terms of the particular Securities for which this
Prospectus is being delivered will be set forth in a related Prospectus
Supplement, including, where applicable, (i) in the case of Senior Debt
Securities or Subordinated Debt Securities, the specific designation, aggregate
principal amount, authorized denominations, maturities, interest rate or rates
(which may be fixed or variable), the date or dates on which interest, if any,
shall be payable, the place or places where principal of and premium, if any,
and interest, if any, on such Senior Debt Securities or Subordinated Debt
Securities of the series will be payable, terms of optional or mandatory
redemption or any sinking fund or analogous provisions, currency or currencies,
or currency unit or currency units of denomination and payment if other than
U.S. dollars, the initial public offering price, terms relating to temporary or
permanent global securities, provisions regarding convertibility or
exchangeability, if any, provisions regarding registration of transfer or
exchange, the proceeds to 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, exchange, voting and other rights, the
initial public offering price and other special terms; (iii) in the case of
Common Stock, the terms of the offering and sales thereof; and (iv) in the case
of the Trust Preferred Securities or the related Trust Guarantees, the specific
designation, aggregate offering amount, denomination, term, coupon rate, time of
payment of distributions, terms of redemption at the option of EPG or repayment
at the option of the holder, provisions regarding conversion or exchange for
capital stock of EPG, the designation of the Trustee(s) acting under the
applicable Indenture or Trust Guarantee and the public offering price.
The Securities may be offered and sold to or through underwriters, dealers,
or agents as designated from time to time, or through a combination of such
methods, and also may be offered and sold directly to one or more other
purchasers. See "Plan of Distribution." The names of, and the principal amounts
or number of shares to be purchased by, underwriters, dealers or agents, and the
compensation of such underwriters, dealers or agents, including any applicable
fees, commissions, and discounts, will be set forth in the related Prospectus
Supplement. No Securities may be sold without delivery of a Prospectus
Supplement describing such series or issue of Securities and the method and
terms of offering thereof.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------
The date of this Prospectus is , 1997
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.
<PAGE> 4
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 Northwestern Atrium, 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 for trading on the
New York Stock Exchange (the "NYSE") under the trading symbol "EPG," and
reports, proxy statements and other information concerning EPG may be inspected
at the offices of the NYSE, 20 Broad Street, New York, New York 10005.
This Prospectus does not contain all of the information set forth in the
Registration Statement, of which this Prospectus is a part, filed with the
Commission under the Securities Act of 1933, as amended (the "Securities Act").
Reference is made to such Registration Statement for further information with
respect to 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, 1996 (the "Form 10-K");
2. EPG's Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, 1997, June 30, 1997 and September 30, 1997;
3. The portions of EPG's definitive Proxy Statement for the Annual
Meeting of Stockholders held on April 22, 1997 that have been incorporated
by reference into the Form 10-K;
4. EPG's Current Reports on Form 8-K dated February 5, 1997, August
29, 1997 and November 3, 1997;
5. EPG's Registration Statement on Form 8-A, as amended to date, filed
with respect to the Common Stock; and
6. EPG's Registration Statement on Form 8-A, as amended to date, filed
with respect to the Preferred Stock Purchase Rights.
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
2
<PAGE> 5
incorporated by reference in this Prospectus (other than exhibits to such
documents unless such exhibits are specifically incorporated by reference into
such documents). Written requests for such copies should be directed to the Vice
President, Investor and Public Relations, El Paso Energy Corporation, 1001
Louisiana, Houston, Texas 77002, (telephone (713) 757-2131).
CERTAIN FORWARD-LOOKING STATEMENTS
This Prospectus and the accompanying Prospectus Supplement (including the
documents incorporated by reference herein) contain forward-looking statements
within the meaning of the Private Securities Litigation Reform Act of 1995.
Where any such forward-looking statement includes a statement of the assumptions
or bases underlying such forward-looking statement, EPG cautions that, while
such assumptions or bases are believed to be reasonable and are made in good
faith, assumed facts or bases almost always vary from the actual results, and
the differences between assumed facts or bases and actual results can be
material, depending upon the circumstances. Where, in any forward-looking
statement, EPG, including its subsidiaries, or its management expresses an
expectation or belief as to future results, such expectation or belief is
expressed in good faith and is believed to have a reasonable basis, but there
can be no assurance that the statement of expectation or belief will result or
be achieved or accomplished. The words "believe," "expect," "estimate,"
"anticipate" and similar expressions may identify forward-looking statements.
Important factors that could cause actual results to differ materially from
those in the forward-looking statements herein include increasing competition
within EPG's industry, the timing and extent of changes in commodity prices for
natural gas, uncertainties associated with acquisitions and joint ventures,
potential environmental liabilities, political and economic risks associated
with current and future operations in foreign countries, conditions of the
equity and other capital markets during the periods covered by the
forward-looking statements, and other risks, uncertainties and factors discussed
more completely in the EPG's other filings with the Securities and Exchange
Commission, including the Form 10-K.
3
<PAGE> 6
THE COMPANY
EPG is a Delaware corporation which was incorporated in 1928. EPG's
principal operations include the interstate and intrastate transportation,
gathering and processing of natural gas; the marketing of natural gas and other
commodities; and the development and operation of energy infrastructure
facilities worldwide. 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
is conducting business under the name El Paso Energy Corporation.
The Company owns or has interests in over 28,200 miles of interstate and
intrastate pipeline connecting the nation's principal natural gas supply regions
to the four largest consuming regions in the United States, namely the Gulf
Coast, California, the Northeast and the Midwest. The Company's natural gas
transmission operations include one of the nation's largest (and the only
coast-to-coast) mainline natural gas transmission systems which is comprised of
five interstate pipeline systems: the El Paso Natural Gas pipeline, the
Tennessee Gas pipeline, Midwestern Gas Transmission pipeline, the East Tennessee
Natural Gas pipeline, and the Mojave Pipeline pipeline. Intrastate transmission
operations are conducted through EPG's interests in Oasis Pipe Line Company and
Channel Industries.
In addition to its interstate and intrastate transmission services, EPG
provides field services including gathering, products extraction, dehydration,
purification and compression. These operations include approximately 8,750 miles
of gathering systems, 220,000 horsepower of compression and several processing
facilities located in the most prolific and active production areas of the
United States (including the San Juan, Anadarko and Permian Basins and in East
Texas, South Texas, Louisiana and the Gulf of Mexico). EPG's marketing
activities include the purchasing, marketing and trading of natural gas, natural
gas liquids, power and other energy commodities, and providing risk management
activities associated with these commodities.
The Company's international activities are focused on the development and
operation of international energy infrastructure projects and include ownership
interests in and operations of (i) two major existing natural gas transmission
systems in Australia, (ii) natural gas transmission and power generation
facilities currently in operation or under construction in Argentina, Brazil,
Czech Republic, Hungary, Indonesia, Mexico, Pakistan and Peru, and (iii) three
domestic power generation plants currently in operation.
EPG's principal executive offices are located at 1001 Louisiana, Houston,
Texas 77002, and its telephone number at that address is (713) 757-2131.
THE EPG TRUSTS
Each of EPE Trust I, EPE Trust II and EPE Trust III is a statutory business
trust created under Delaware law pursuant to (i) a separate original declaration
of trust, each of which will be amended and restated (as so amended and
restated, each a "Declaration") executed by EPG, as sponsor for such EPE Trust
(the "Sponsor"), and the Trustees (as defined herein) for such EPE Trust and
(ii) the filing of a certificate of trust with the Delaware Secretary of State.
Each Declaration will be qualified as an indenture under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"). Each EPE Trust exists for the
exclusive purposes of (i) issuing and selling the Trust Securities, (ii)
investing the gross proceeds from the sale of the Trust Securities in
Subordinated Debt Securities issued by EPG, and (iii) engaging in only those
other activities necessary or incidental thereto.
All of the Trust Common Securities issued by each of the EPE Trusts will be
directly or indirectly owned by EPG. The Trust Common Securities will rank pari
passu, and payments will be made thereon pro rata, with the Trust Preferred
Securities except that upon an event of default under the applicable
Declaration, the rights of the holders of the Trust Common Securities to payment
in respect of distributions and payments upon liquidation, redemption, and
otherwise will be subordinated to the rights of the holders of the Trust
Preferred Securities. EPG will, directly or indirectly, acquire Trust Common
Securities in an aggregate liquidation amount equal to 3% of the total capital
of each EPE Trust. A majority of the Trustees (the "Administrative Trustees") of
each EPE Trust will be persons who are employees or officers of or affiliated
with EPG. One trustee of each EPE Trust will be a financial institution that
will be unaffiliated with EPG and
4
<PAGE> 7
that will act as property trustee and as indenture trustee for purposes of the
Trust Indenture Act, pursuant to the terms set forth in a Prospectus Supplement
(the "Property Trustee"). In addition, unless the Property Trustee maintains a
principal place of business in the State of Delaware, and otherwise meets the
requirements of applicable law, one trustee of each EPE Trust will have its
principal place of business or reside in the State of Delaware (the "Delaware
Trustee" and, together with the Administrative Trustees and the Property
Trustee, the "Trustees"). Each EPE Trust's business and affairs will be
conducted by the Trustees appointed by the Company, as the direct or indirect
holder of all the Trust Common Securities. Except in certain limited
circumstances, the holder of the Trust Common Securities will be entitled to
appoint, remove or replace any of, or increase or reduce the number of, the
Trustees of an EPE Trust. The duties and obligations of the Trustees shall be
governed by the Declaration of each EPE Trust. The Company will pay all fees and
expenses related to the EPE Trusts and the offering of Trust Securities, the
payment of which will be guaranteed by the Company. The office of the Delaware
Trustee for each EPE Trust in the State of Delaware is 1201 Market Street,
Wilmington, Delaware 19801. The principal place of business of each EPE Trust
shall be c/o El Paso Energy Corporation, 1001 Louisiana, Houston, Texas 77002,
and its telephone number is (713) 757-2131.
USE OF PROCEEDS
Unless otherwise specified in a Prospectus Supplement, the net proceeds
received by the Company from the sale of Senior Debt Securities, Subordinated
Debt Securities, Preferred Stock and Common Stock will be used for general
corporate purposes. Funds not required immediately for such purposes may be
invested in marketable securities and short-term investments. The EPE Trusts
will use all proceeds received from the sale of the Trust Preferred Securities
to purchase Subordinated Debt Securities from the Company.
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF
EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED AND PREFERENCE STOCK DIVIDEND REQUIREMENTS
<TABLE>
<CAPTION>
NINE MONTHS
ENDED YEAR ENDED DECEMBER 31,
SEPTEMBER 30, -----------------------------------------
1997(2) 1996 1995 1994 1993 1992
------------- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges
and Ratio of Earnings to Combined
Fixed Charges and Preferred and
Preference Stock Dividend
Requirements(1).................... 2.24x 1.59x 2.51x 2.87x 3.04x 2.73x
</TABLE>
- ---------------
(1) The ratio of earnings to combined fixed charges and preferred and preference
stock dividend requirements for the periods presented is the same as the
ratio of earnings to fixed charges since EPG has no outstanding preferred
stock or preference stock and, therefore, no dividend requirements.
(2) Because of the seasonal nature of EPG's business, the ratio for the nine
month period may not necessarily be indicative of the ratio that will result
for the full year 1997.
For purposes of calculating these ratios: (i) "fixed charges" represent
interest expense (exclusive of interest on rate refunds), amortization of debt
costs, the portion of rental expense representing the interest factor, and
preferred stock dividend requirements of majority-owned subsidiaries; and (ii)
"earnings" represent the aggregate of income from continuing operations before
income taxes, interest expense (exclusive of interest on rate refunds),
amortization of debt costs, the portion of rental expense representing the
interest factor, and the actual amount of any preferred stock dividend
requirements of majority owned subsidiaries.
5
<PAGE> 8
DESCRIPTION OF THE SENIOR DEBT SECURITIES
The Senior Debt Securities offered hereby will represent unsecured
obligations of EPG. The Senior Debt Securities offered hereby will be issued
under an indenture (the "Senior Indenture"), between EPG and The Chase Manhattan
Bank, as trustee (the "Senior Debt Trustee"). The Senior Indenture does not
limit the aggregate principal amount of Senior Debt Securities that may be
issued thereunder from time to time in one or more series.
The terms of the Senior Debt Securities include those stated in the Senior
Indenture and those made part of the Senior Indenture by reference to the Trust
Indenture Act. The Senior Debt Securities are subject to all such terms, and
holders of Senior Debt Securities are referred to the Senior Indenture and the
Trust Indenture Act for a statement of those terms.
The statements set forth below in this section are brief summaries of
certain provisions contained in the Senior Indenture, do not purport to be
complete, and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Senior Indenture, including the definitions
therein of certain terms, a copy of which Senior Indenture is incorporated by
reference as an exhibit to the Registration Statement of which this Prospectus
is a part. Capitalized terms used in this section and not otherwise defined in
this section have the respective meanings assigned to them in the Senior
Indenture.
GENERAL
Reference is made to the Prospectus Supplement relating to the particular
series offered thereby for the terms of such Senior Debt Securities, including
where applicable: (a) the form and title of the Senior Debt Securities; (b) the
aggregate principal amount of the Senior Debt Securities; (c) the date or dates
on which the Senior Debt Securities may be issued; (d) the date or dates on
which the principal of and premium, if any, on the Senior Debt Securities shall
be payable; (e) the rate or rates (which may be fixed or variable) at which the
Senior Debt Securities shall bear interest, if any, and the date or dates from
which such interest shall accrue; (f) the dates on which interest, if any, shall
be payable and the record dates for the interest payment dates; (g) the place or
places where the principal of and premium, if any, and interest, if any, on the
Senior Debt Securities of the series will be payable; (h) the period or periods,
if any, within which, the price or prices at which, and the terms and conditions
upon which, the Senior Debt Securities may be redeemed at the option of 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 Senior Debt Securities of the
series shall be issuable; (k) if other than the principal amount thereof, the
portion of the principal amount of the Senior Debt Securities which shall be
payable upon declaration of the acceleration of the maturity thereof in
accordance with the provisions of the Senior Indenture; (l) whether payment of
the principal of and premium, if any, and interest, if any, on the Senior Debt
Securities shall be without deduction for taxes, assessments, or governmental
charges paid by the holders; (m) the currency or currencies, or currency unit or
currency units, in which the principal of and premium, if any, and interest, if
any, on the Senior Debt Securities shall be denominated, payable, redeemable or
purchasable, as the case may be; (n) any Events of Default (as defined below)
with respect to the Senior Debt Securities that differ from those set forth in
the Senior Indenture; (o) whether the Senior Debt Securities will be
convertible; (p) whether the Senior Debt Securities of such series shall be
issued as a global certificate or certificates and, in such case, the identity
of the depositary for such series; (q) provisions regarding the convertibility
or exchangeability of the Senior Debt Securities; and (r) any other terms not
inconsistent with the Senior Indenture.
If any Senior Debt Securities offered hereby are sold for foreign
currencies or foreign currency units or if the principal of and premium, if any,
or interest, if any, on any series of Senior Debt Securities is payable in
foreign currencies or foreign currency units, the restrictions, elections, tax
consequences, specific terms and other information with respect to such issue of
Senior Debt Securities and such currencies and currency units will be set forth
in the Prospectus Supplement relating thereto.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Senior Debt Securities offered hereby will be issued only in fully
registered form in denominations of $1,000 or any integral multiple
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thereof. The Senior Debt Securities of a series may be issuable in the form of
one or more global certificates, which will be denominated in an amount equal to
all or a portion of the aggregate principal amount of such Senior Debt
Securities. See "-- Global Senior Debt Securities."
One or more series of Senior Debt Securities offered hereby may be sold at
a substantial discount below their stated principal amount, bearing no interest
or interest at a rate that at the time of issuance is below market rates. The
federal income tax consequences and special considerations applicable to any
such series of Senior Debt Securities will be described generally in the
Prospectus Supplement relating thereto.
FORM, EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
No service charge will be made for any transfer or exchange of the Senior
Debt Securities, but the Company or the Senior Debt Trustee may require payment
of a sum sufficient to cover any tax or other government charge payable in
connection therewith. Where Senior Debt Securities of any series are issued in
bearer form, the special restrictions and considerations, including special
offering restrictions and special U.S. federal income tax considerations,
applicable to any such Senior Debt Securities and to payment on and transfer and
exchange of such Senior Debt Securities will be described in the applicable
Prospectus Supplement. Bearer Senior Debt Securities will be transferrable by
delivery.
Unless otherwise provided in the applicable Prospectus Supplement,
principal and premium, if any, or interest, if any, will be payable and the
Senior Debt Securities may be surrendered for payment or transferred at the
offices of the Senior Debt Trustee as paying and authenticating agent, provided
that payment of interest on registered securities may be made at the option of
the Company by check mailed to the address of the person entitled thereto as it
appears in the Security Register, or by transfer to an account maintained by the
person entitled thereto, provided that the proper wire transfer instructions
have been received by the Company prior to the Record Date. Payment of Senior
Debt Securities in bearer form will be made at such paying agencies outside of
the United States as the Company may appoint.
GLOBAL SENIOR DEBT SECURITIES
The Senior Debt Securities of a series may be issued in whole or in part in
the form of one or more global certificates that will be deposited with, or on
behalf of, a depositary (the "Depositary"), or its nominee, identified in the
Prospectus Supplement relating to such series. Unless and until such global
certificate or certificates are exchanged in whole or in part for Senior Debt
Securities in individually certificated form, a global Senior Debt Security may
not be transferred or exchanged except as a whole to a nominee of the Depositary
for such global Senior Debt Security, or by a nominee for the Depositary to the
Depositary, or to a successor of the Depositary or a nominee of such successor,
except in the circumstances described in the applicable Prospectus Supplement.
The specific terms of the depositary arrangement with respect to a series
of Senior Debt Securities and the rights of, and limitations on, owners of
beneficial interests in a global Senior Debt Security representing all or a
portion of a series of Senior Debt Securities will be described in the
Prospectus Supplement relating to such series.
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CERTAIN COVENANTS
Limitations on Liens. The Senior 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 Senior Indenture
or thereafter acquired, to secure any Debt (as defined below) of EPG or any
other Person (as defined below) (other than the Senior Debt Securities issued
thereunder), without in any such case making effective provision whereby all of
the Senior Debt Securities Outstanding thereunder shall be secured equally and
ratably with, or prior to, such Debt so long as such Debt shall be so secured.
There is excluded from this restriction:
(i) any Lien upon any property or assets of EPG or any Restricted
Subsidiary in existence on the date of the Senior Indenture or created
pursuant to an "after-acquired property" clause or similar term in
existence on the date of the Senior Indenture or any mortgage, pledge
agreement, security agreement or other similar instrument in existence on
the date of the Senior Indenture;
(ii) any Lien upon any property or assets created at the time of
acquisition of such property or assets by 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;
(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
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terms of any mortgage, pledge agreement, security agreement or other
similar instrument, creating a Lien upon such property or assets permitted
by clauses (i) through (xii), inclusive, above; or
(xiv) any extension, renewal, refinancing, refunding or replacement
(or successive extensions, renewals, refinancing, refundings or
replacements) of any Lien, in whole or in part, that is referred to in
clauses (i) through (xiii), inclusive, above, or of any Debt secured
thereby; provided, however, that the principal amount of Debt secured
thereby shall not exceed the greater of the principal amount of Debt so
secured at the time of such extension, renewal, refinancing, refunding or
replacement and the original principal amount of Debt so secured (plus in
each case the aggregate amount of premiums, other payments, costs and
expenses required to be paid or incurred in connection with such extension,
renewal, refinancing, refunding or replacement); provided further, however,
that such extension, renewal, refinancing, refunding or replacement shall
be limited to all or a part of the property (including improvements,
alterations and repairs on such property) subject to the encumbrance so
extended, renewed, refinanced, refunded or replaced (plus improvements,
alterations and repairs on such property).
Notwithstanding the foregoing, under the Senior Indenture, 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 Senior Debt Securities) that is not excepted by clauses (i) through
(xiv), inclusive, above without securing the Senior Debt Securities issued under
the Senior Indenture, provided that the aggregate principal amount of all Debt
then outstanding secured by such Lien and all similar Liens, together with all
net sale proceeds from Sale-Leaseback Transactions (as defined below) (excluding
Sale-Leaseback Transactions permitted by clauses (i) through (iv), inclusive, of
the first paragraph of the restriction on sale-leasebacks covenant described
below) does not exceed 15% of Consolidated Net Tangible Assets (as defined
below).
Restriction on Sale-Leasebacks. The Senior Indenture provides that 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 Senior 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 such Restricted
Subsidiary, or (B) investment in another Principal Property.
Notwithstanding the foregoing, under the Senior 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
Senior Debt Securities) secured by Liens upon Principal Properties not excepted
by clauses (i) through (xiv), inclusive, of the first paragraph of the
limitation on liens covenant described above, do not exceed 15% of the
Consolidated Net Tangible Assets.
Certain Defined Terms. As used herein:
"Consolidated Net Tangible Assets" means, at any date of determination, the
total amount of assets after deducting therefrom (i) all current liabilities
(excluding (A) any current liabilities that by their terms are extendable or
renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed, and (B) current
maturities of long-term debt), and (ii) the value (net of any applicable
reserves) of all goodwill, trade names, trademarks, patents and other like
intangible assets, all as set forth on the consolidated balance sheet of EPG and
its consolidated subsidiaries for EPG's most recently completed fiscal quarter,
prepared in accordance with generally accepted accounting principles.
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"Debt" means any obligation created or assumed by any Person for the
repayment of money borrowed and any purchase money obligation created or assumed
by such Person.
"Funded Debt" means all Debt maturing one year or more from the date of the
creation thereof, all Debt directly or indirectly renewable or extendible, at
the option of the debtor, by its terms or by the terms of any instrument or
agreement relating thereto, to a date one year or more from the date of the
creation thereof, and all Debt under a revolving credit or similar agreement
obligating the lender or lenders to extend credit over a period of one year or
more.
"Lien" means any mortgage, pledge, security interest, charge, lien or other
encumbrance of any kind, whether or not filed, recorded or perfected under
applicable law.
"Permitted Liens" means (i) Liens upon rights-of-way for pipeline purposes;
(ii) any governmental Lien, mechanics', materialmen's, carriers' or similar Lien
incurred in the ordinary course of business which is not yet due or which is
being contested in good faith by appropriate proceedings and any undetermined
Lien which is incidental to construction; (iii) the right reserved to, or vested
in, any municipality or public authority by the terms of any right, power,
franchise, grant, license, permit or by any provision of law, to purchase or
recapture or to designate a purchaser of, any property; (iv) Liens of taxes and
assessments which are (A) for the then current year, (B) not at the time
delinquent, or (C) delinquent but the validity of which is being contested at
the time by 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 U.S. or any state thereof, or any
other country, or any political subdivision of any of the foregoing, to secure
partial, progress, advance, or other payments pursuant to any contract or
statute, or any Lien securing industrial development, pollution control, or
similar revenue bonds.
"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 U.S. or
Canada, and (b) any processing or manufacturing plant owned or leased by EPG or
any Subsidiary that is located within the U.S. or Canada, except, in the case of
either clause (a) or (b), any such assets or plant which, in the opinion of
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 EPG or any
Restricted Subsidiary of any Principal Property to a Person (other than EPG or a
Subsidiary) and the taking back by EPG or any Restricted Subsidiary, as the case
may be, of a lease of such Principal Property.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Senior Indenture provides that EPG may, without the consent of the
Senior Debt Trustee or the holders of any Senior Debt Securities issued
thereunder, consolidate or merge with, or sell, lease or transfer its properties
and assets as, or substantially as, an entirety to, any Person, provided that
(i) either 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 Senior Debt Securities and the performance or observance of
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every covenant and condition of the Senior 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 Senior Indenture. Any such
successor Person shall succeed to and be substituted for, and may exercise every
right and power of, EPG under the Senior Indenture with the same effect as if it
had been named a party in the Senior Indenture and EPG shall, except in the case
of a lease, be released and discharged from all its obligations under the Senior
Debt Securities and the Senior Indenture. Notwithstanding the foregoing, EPG
currently anticipates that it will provide in any supplemental Senior Indenture,
including with respect to existing issuances of Senior Debt Securities, that the
predecessor Person may, in the alternative, elect not to be so released from
such obligations, provided that the predecessor Person and the successor Person
shall agree, pursuant to such supplemental Senior Indenture, to be co-obligors
jointly and severally with respect to all such obligations.
EVENTS OF DEFAULT
An "Event of Default" will occur under the Senior Indenture with respect to
Senior Debt Securities of a particular series issued thereunder upon: (a)
default in the payment of the principal of, or premium, if any, on, any Senior
Debt Security of such series at its maturity; (b) default in the payment of any
interest on any Senior Debt Security of such series when it becomes due and
payable and continuance of such default for a period of 30 days; (c) default in
the performance, or breach, of any term, covenant or warranty contained in the
Senior Indenture with respect to such series for a period of 60 days upon giving
written notice as provided in the Senior Indenture; (d) the occurrence of
certain events of bankruptcy; or (e) any other Event of Default applicable to
such series.
The Senior Indenture provides that if an Event of Default with respect to a
series of Senior Debt Securities issued thereunder shall have occurred and be
continuing, either the Senior Debt Trustee or the holders of not less than 25%
in principal amount of Senior Debt Securities of such series then outstanding
may declare the principal amount of all Senior Debt Securities of such series to
be due and payable immediately upon giving written notice as provided in the
Senior Indenture. The Senior Indenture provides that the holders of a majority
in principal amount of Senior Debt Securities then outstanding of such series
may rescind and annul such declaration and its consequences under certain
circumstances.
The holders of a majority in principal amount of Senior Debt Securities of
a series then outstanding may waive past defaults under the Senior Indenture
with respect to such series and its consequences (except a continuing default in
the payment of principal of or premium, if any, or interest on any series of
Senior Debt Securities or a default in respect of any covenant or provision of
the Senior Indenture which cannot be modified or amended by a supplemental
Senior Indenture without the consent of the holder of each outstanding Senior
Debt Security affected thereby).
Pursuant to the Senior Indenture, the holders of a majority in aggregate
principal amount of all affected series of Senior Debt Securities then
outstanding may direct with respect to such series the time, method, and place
of conducting any proceeding for any remedy available to the Senior Debt Trustee
or exercising any trust or power conferred on the Senior Debt Trustee, provided
that such direction shall not be in conflict with any rule of law or the Senior
Indenture. Before proceeding to exercise any right or power under the Senior
Indenture at the direction of any holders, the Senior Debt Trustee shall be
entitled to receive from such holders reasonable security or indemnity against
the costs, expenses, and liabilities which might be incurred by it in compliance
with any such direction.
Under the terms of the Senior Indenture, EPG is required to furnish to the
Senior Debt Trustee annually an Officer's Certificate to the effect that to the
best of such officer's knowledge, EPG is not in default in the performance and
observance of the terms, provisions and conditions of the Senior Indenture or,
if such officer has knowledge that EPG is in default, specifying such default.
The Senior Indenture requires the Senior Debt Trustee to give to all holders of
Senior Debt Securities outstanding thereunder notice of any Default by EPG in
the manner provided in the Senior Indenture, unless such Default shall have been
cured or waived; however, except in the case of a default in the payment of
principal of and premium, if any, or interest, if any, on any Senior Debt
Securities outstanding thereunder, the Senior Debt Trustee is entitled to
withhold such
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notice in the event that the board of directors, the executive committee, or a
trust committee of directors or certain officers of the Senior Debt Trustee in
good faith determine that withholding such notice is in the interest of the
holders of such outstanding Senior Debt Securities.
SATISFACTION AND DISCHARGE; LEGAL AND COVENANT DEFEASANCE
Under the terms of the Senior Indenture, EPG may satisfy and discharge
certain obligations to holders of Senior Debt Securities of any series which
have not already been delivered to the Senior Debt Trustee for cancellation and
which have either become due and payable or are by their terms due and payable
within one year or are to be called for redemption within one year by (i)
depositing or causing to be deposited with the Senior Debt Trustee funds in an
amount sufficient to pay the principal and any premium and interest to the date
of such deposit (in case of Senior Debt Securities of such series which have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be, (ii) paying or causing to be paid all other sums payable under the
Senior Indenture with respect to such Senior Debt Securities, and (iii)
delivering to the Senior Debt Trustee an Officer's Certificate and Opinion of
Counsel relating to such satisfaction and discharge.
The Senior Indenture also provides that EPG and any other obligor, if any,
will be discharged from any and all obligations in respect of any series of
Senior Debt Securities issued thereunder (excluding, however, certain
obligations, such as the obligation to register the transfer or exchange of such
outstanding Senior Debt Securities of such series, to replace stolen, lost,
mutilated or destroyed certificates, to pay principal and interest on the
original stated due dates or specified redemption date, to make any sinking fund
payments, and to maintain paying agencies) on the 91st day following the deposit
referred to in the following clause (i), subject to the following conditions:
(i) the irrevocable deposit, in trust, of cash or U.S. Government Obligations
(or a combination thereof) which through the payment of interest and principal
thereof in accordance with their terms will provide cash in an amount sufficient
to pay the principal and interest and premium, if any, on the outstanding Senior
Debt Securities of such series and any mandatory sinking fund payments, in each
case, on the stated maturity of such payments in accordance with the terms of
the Senior Indenture and the outstanding Senior Debt Securities of such series
or on any Redemption Date established pursuant to clause (iii) below, (ii) 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 Senior Indenture, there has been a change in the
applicable federal income tax law, in either case, to the effect that, and
confirming that, the holders of the Senior Debt Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such deposit
and defeasance and will be subject to federal income tax on the same amount and
in the same manner and at the same times, as would have been the case if such
deposit and defeasance had not occurred, (iii) if the Senior Debt Securities are
to be redeemed prior to Stated Maturity (other than from mandatory sinking fund
payments or analogous payments), notice of such redemption shall have been duly
given pursuant to the Senior Indenture or provision therefor satisfactory to the
Senior Debt Trustee shall have been made, (iv) no Event of Default or event
which with notice or lapse of time or both would become an Event of Default will
have occurred and be continuing on the date of such deposit, and (v) EPG's
delivery to the Senior Debt Trustee of an Officer's Certificate and an Opinion
of Counsel, each stating that the conditions precedent under the Senior
Indenture have been complied with.
Under the Senior Indenture, 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 Senior Indenture, in respect of any series of Senior Debt Securities
on the 91st day following the deposit referred to in clause (i) in the
immediately preceding paragraph, subject to satisfaction of the conditions
described in clauses (i), (iii), (iv) and (v) in the immediately preceding
paragraph with respect to such series of Senior Debt Securities and the delivery
of an Opinion of Counsel confirming that the holders of the Senior Debt
Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and covenant defeasance and will be subject
to federal income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit and covenant defeasance had
not occurred.
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CHANGES IN CONTROL AND HIGHLY LEVERAGED TRANSACTIONS
The Senior Indenture does not contain provisions requiring redemption of
the Senior Debt Securities issued thereunder, or adjustment to any terms of such
Senior Debt Securities, upon any change in control of EPG.
Other than the limitations on Liens and the restriction on Sale-Leaseback
Transactions described above under "-- Certain Covenants," the Senior Indenture
does not contain any covenant or other provisions designed to afford holders of
the Senior Debt Securities issued thereunder protection in the event of a highly
leveraged transaction involving EPG.
MODIFICATION OF THE SENIOR INDENTURE
The Senior Indenture provides that EPG and the Senior Debt Trustee may
enter into supplemental indentures without the consent of the holders of Senior
Debt Securities issued thereunder to: (a) secure any of such Senior Debt
Securities, (b) evidence the succession of another Person to EPG under the
Senior Indenture and the Senior 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
Senior Debt Securities or to surrender any right or power conferred by the
Senior Indenture upon EPG; (d) add to, change or eliminate any of the provisions
of the Senior Indenture, provided that any such addition, change or elimination
shall become effective only after there are no such Senior Debt Securities of
any series entitled to the benefit of such provision outstanding; (e) establish
the forms or terms of the Senior Debt Securities of any series issued
thereunder; (f) cure any ambiguity or correct any inconsistency in the Senior
Indenture; (g) evidence the acceptance of appointment by a successor Senior Debt
Trustee; and (h) qualify the Senior Indenture under the Trust Indenture Act.
The Senior Indenture also contains provisions permitting EPG and the Senior
Debt Trustee, with the consent of the holders of a majority in aggregate
principal amount of all outstanding Senior Debt Securities affected by such
supplemental Senior Indenture (voting as one class), to add any provisions to,
or change in any manner or eliminate any of the provisions of, the Senior
Indenture, or modify in any manner the rights of the holders of such Senior Debt
Securities; provided that EPG and the Senior Debt Trustee may not, without the
consent of the holder of each outstanding Senior Debt Security affected thereby,
(a) change the stated maturity of the principal of or any installment of
principal of or interest, if any, on, any Senior Debt Security, or reduce the
principal amount thereof or premium, if any, on or the rate of interest thereon,
(b) reduce the percentage in principal amount of Senior Debt Securities required
for any such supplemental Senior Indenture or for any waiver provided for in the
Senior Indenture, (c) change EPG's obligation to maintain an office or agency
for payment of Senior Debt Securities and the other matters specified therein,
or (d) modify any of the provisions of the Senior Indenture relating to the
execution of supplemental indentures with the consent of holders of Senior Debt
Securities which are discussed in this paragraph or modify any provisions
relating to the waiver by holders of past defaults and certain covenants, except
to increase any required percentage or to provide that certain other provisions
of the Senior Indenture cannot be modified or waived without the consent of the
holder of each outstanding Senior Debt Security affected thereby.
NO PERSONAL LIABILITY OF OFFICERS, DIRECTORS, EMPLOYEES OR STOCKHOLDERS
No director, officer, employee or stockholder, as such, of EPG or any of
its affiliates shall have any personal liability in respect of the obligations
of EPG under the Senior Indenture or the Senior Debt Securities by reason of
his, her or its status as such.
APPLICABLE LAW
The Senior Indenture is, and the Senior Debt Securities offered hereby will
be, governed by, and construed in accordance with, the laws of the State of New
York.
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CONCERNING THE SENIOR DEBT TRUSTEE
The Senior Indenture provides that, except during the continuance of an
Event of Default, the Senior Debt Trustee will perform only such duties as are
specifically set forth in the Senior Indenture. If an Event of Default has
occurred and is continuing, the Senior Debt Trustee will use the same degree of
care and skill in its exercise of the rights and powers vested in it by the
Senior Indenture as a prudent person would exercise under the circumstances in
the conduct of such person's own affairs.
The Senior Indenture contains limitations on the rights of the Senior Debt
Trustee, should it become a creditor of 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 Senior Debt Trustee is permitted to
engage in other transactions; provided, however, that if it acquires any
conflicting interest, it must eliminate such conflict or resign.
The Chase Manhattan Bank, a New York banking corporation, is the Senior
Debt Trustee under the Senior Indenture, and is also the Subordinated Debt
Trustee (as defined below) under the Subordinated Debt Indenture (as defined
below). EPG maintains banking and other commercial relationships with The Chase
Manhattan Bank in the ordinary course of business.
DESCRIPTION OF THE SUBORDINATED DEBT SECURITIES
Subordinated Debt Securities may be issued from time to time in one or more
series under an indenture (the "Subordinated Indenture"), to be entered into
between the Company and The Chase Manhattan Bank, as Trustee (the "Subordinated
Debt Trustee"), the form of which is filed as an exhibit to the Registration
Statement of which this Prospectus is a part. The terms of the Subordinated Debt
Securities will include those stated in the Subordinated Indenture and those
made part of the Subordinated Indenture by reference to the Trust Indenture Act.
The Subordinated Debt Securities are subject to all such terms, and holders of
Subordinated Debt Securities are referred to the Subordinated Indenture and the
Trust Indenture Act for those terms.
The statements set forth below in this section are brief summaries of
certain provisions contained in the Subordinated Indenture, do not purport to be
complete and are subject in all respects to the provisions of, and are qualified
in their entirety by reference to, the Subordinated Indenture, including the
definitions of certain terms therein, and the Trust Indenture Act. Capitalized
terms used in this section and not otherwise defined in this section have the
respective meanings assigned to them in the Subordinated Indenture.
GENERAL
The Subordinated Debt Securities will be unsecured, subordinated
obligations of the Company. The Subordinated Indenture does not limit the
aggregate principal amount of Subordinated Debt Securities which may be issued
thereunder and provides that the Subordinated Debt Securities may be issued from
time to time in one or more series. The Subordinated Debt Securities are
issuable in one or more series pursuant to an Subordinated Indenture
supplemental to the Subordinated Indenture or a resolution of the Company's
Board of Directors or a special committee appointed thereby (each, a
"Supplemental Subordinated Indenture").
In the event Subordinated Debt Securities are issued to an EPE Trust or a
trustee of such trust in connection with the issuance of Trust Securities by
such EPE Trust, such Subordinated Debt Securities subsequently may be
distributed pro rata to the holders of such Trust Securities in connection with
the dissolution of such EPE Trust upon the occurrence of certain events
described in the Prospectus Supplement relating to such Trust Securities. Only
one series of Subordinated Debt Securities will be issued to an EPE Trust or a
trustee of such trust in connection with the issuance of Trust Securities by
such EPE Trust.
Reference is made to the Prospectus Supplement relating to the particular
Subordinated Debt Securities being offered thereby for the following terms: (a)
the designation of such Subordinated Debt Securities; (b) the aggregate
principal amount of such Subordinated Debt Securities; (c) the percentage of
their principal amount at which such Subordinated Debt Securities will be
issued; (d) the date or dates on which
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such Subordinated Debt Securities will mature and the right, if any, to extend
such date or dates; (e) the rate or rates, if any, per annum, at which such
Subordinated Debt Securities will bear interest, or the method of determination
of such rate or rates; (f) the date or dates from which such interest shall
accrue, the interest payment dates on which such interest will be payable or the
manner of determination of such interest payment dates and the record dates for
the determination of holders to whom interest is payable on any such interest
payment dates; (g) the right, if any, to extend the interest payment periods and
the duration of such extension; (h) provisions for a sinking purchase or other
analogous fund, if any; (i) the period or periods, if any, within which, the
price or prices of which, and the terms and conditions upon which such
Subordinated Debt Securities may be redeemed, in whole or in part, at the option
of the Company or the holder; (j) the form of such Subordinated Debt Securities;
(k) provisions regarding convertibility or exchangeability for capital stock of
EPG (if any); and (l) any other terms not inconsistent with the Subordinated
Indenture. Principal, premium, if any, and interest, if any, will be payable,
and the Subordinated Debt Securities offered hereby will be transferable, at the
corporate trust office of the Subordinated Debt Trustee in New York, New York,
provided that payment of interest, if any, may be made at the option of the
Company by check mailed to the address of the person entitled thereto as it
appears in the Security Register, or by transfer to an account maintained by the
person entitled thereto, provided that proper wire transfer instructions have
been received by the Company prior to the Record Date.
If any Subordinated Debt Securities offered hereby are sold for foreign
currencies or foreign currency units or if the principal of and premium, if any,
or interest, if any, on any series of Subordinated Debt Securities is payable in
foreign currencies or foreign currency units, the restrictions, elections, tax
consequences, specific terms and other information with respect to such issue of
Subordinated Debt Securities and such currencies and currency units will be set
forth in the Prospectus Supplement relating thereto.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Subordinated Debt Securities offered hereby will be issued only in fully
registered form without coupons and in denominations of $1,000 or any integral
multiple thereof. The Subordinated Debt Securities of a series may be issuable
in the form of one or more global certificates, which will be denominated in an
amount equal to all or a portion of the aggregate principal amount of such
Subordinated Debt Securities. See "-- Global Subordinated Debt Securities."
One or more series of Subordinated Debt Securities offered hereby may be
sold at a substantial discount below their stated principal amount, bearing no
interest or interest at a rate that at the time of issuance is below market
rates. The federal income tax consequences and special considerations applicable
to any such series of Subordinated Debt Securities will be described generally
in the Prospectus Supplement relating thereto.
FORM, EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
No service charge will be made for any transfer or exchange of the
Subordinated Debt Securities, but the Company or the Subordinated Debt Trustee
may require payment of a sum sufficient to cover any tax or other government
charge payable in connection therewith. Where Subordinated Debt Securities of
any series are issued in bearer form, the special restrictions and
considerations, including special offering restrictions and special U.S. federal
income tax considerations, applicable to any such Subordinated Debt Securities
and to payment on and transfer and exchange of such Subordinated Debt Securities
will be described in the applicable Prospectus Supplement. Bearer Subordinated
Debt Securities will be transferrable by delivery.
Unless otherwise provided in the applicable Prospectus Supplement,
principal and premium, if any, or interest, if any, will be payable and the
Subordinated Debt Securities may be surrendered for payment or transferred at
the offices of the Subordinated Debt Trustee as paying and authenticating agent,
provided that payment of interest on registered securities may be made at the
option of the Company by check mailed to the address of the person entitled
thereto as it appears in the Security Register, or by transfer to an account
maintained by the person entitled thereto, provided that the proper wire
transfer instructions have been received by the Company prior to the Record
Date. Payment of Subordinated Debt Securities in bearer form will be made at
such paying agencies outside of the United States as the Company may appoint.
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GLOBAL SUBORDINATED DEBT SECURITIES
The Subordinated Debt Securities of a series may be issued in whole or in
part in the form of one or more global certificate(s) that will be deposited
with, or on behalf of, a depositary (the "Subordinated Depositary"), or its
nominee, identified in the Prospectus Supplement relating to such series. In
such a case, one or more global certificate(s) will be issued in a denomination
or aggregate denomination equal to the portion of the aggregate principal amount
of outstanding Subordinated Debt Securities of the series to be represented by
such global certificate(s). Unless and until such global certificate(s)
exchanged in whole or in part for Subordinated Debt Securities in individually
certificated form, a global Subordinated Debt Security may not be transferred or
exchanged except as a whole to a nominee of the Subordinated Depositary for such
global Subordinated Debt Security, or by a nominee for the Subordinated
Depositary to the Subordinated Depositary or to a successor of the Subordinated
Depositary or a nominee of such successor, except in the circumstances described
in the applicable Prospectus Supplement.
The specific terms of the depositary arrangement with respect to a series
of Subordinated Debt Securities and the rights of, and limitations on, owners of
beneficial interests in a global Subordinated Debt Security representing all or
a portion of a series of Subordinated Debt Securities will be described in the
Prospectus Supplement relating to such series.
SUBORDINATION
The Subordinated Debt Securities will be subordinated and junior in right
of payment to all other Debt of EPG, except for such Debt that is by its terms
subordinate to or pari passu with the Subordinated Debt Securities ("Senior
Debt"), and such other indebtedness of the Company to the extent set forth in
the applicable Prospectus Supplement.
CERTAIN COVENANTS
If Subordinated Debt Securities are issued to an EPE Trust or a Trustee of
such trust in connection with the issuance of Trust Securities by such EPE Trust
and (i) there shall have occurred any event that would constitute an Event of
Default (as defined herein) or (ii) the Company shall be in default with respect
to its payment of any obligations under the related Trust Guarantee or Trust
Common Securities Guarantee (as defined herein), then (a) the Company shall not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase or make a liquidation payment with respect to, any of its
capital stock (other than (1) purchases or acquisitions of shares of EPG Common
Stock in connection with the satisfaction by EPG of its obligations under any
employee benefit plans or the satisfaction by EPG of its obligations pursuant to
any contract or security requiring EPG to purchase shares of EPG Common Stock,
or (2) the purchase of fractional interests in shares of EPG capital stock as a
result of a reclassification of EPG capital stock or the exchange or conversion
of one class or series of EPG capital stock for another class or series of EPG
capital stock) or make any guarantee payments with respect to the foregoing, and
(b) the Company shall not make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities (including
guarantees) issued by the Company which rank pari passu with or junior to such
Subordinated Debt Securities.
If Subordinated Debt Securities are issued to an EPE Trust or a Trustee of
such trust in connection with the issuance of Trust Securities by such EPE
Trust, and the Company shall have given notice of its election to defer payments
of interest on such Subordinated Debt Securities by extending the interest
payment period as provided in the Subordinated Indenture and such period, or any
extension thereof, shall be continuing, then (a) the Company shall not declare
or pay any dividend on, make any distributions with respect to, or redeem,
purchase or make a liquidation payment with respect to, any of its capital
stock, and (b) the Company shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees) issued by the Company which rank pari passu with or
junior to such Subordinated Debt Securities.
In the event Subordinated Debt Securities are issued to an EPE Trust or a
Trustee of such trust in connection with the issuance of Trust Securities of
such EPE Trust, for so long as such Trust Securities
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remain outstanding, the Company will covenant (i) to directly or indirectly
maintain 100% ownership of the Common Securities of such EPE Trust; provided,
however, that any permitted successor of the Company under the Subordinated
Indenture may succeed to the Company's ownership of such Trust Common
Securities, (ii) to use its reasonable efforts to cause such EPE Trust (a) to
remain a statutory business trust, except in connection with the distribution of
Subordinated Debt Securities to the holders of Trust Securities in liquidation
of such EPE Trust, the redemption of all of the Trust Securities of such EPE
Trust, or certain mergers, consolidations or amalgamations, each as permitted by
the Declaration of such EPE Trust, and (b) to otherwise continue not to be
classified as an association taxable as a corporation or partnership for U.S.
federal income tax purposes, and (iii) to use its reasonable efforts to cause
each holder of Trust Securities to be treated as owning an undivided beneficial
interest in the Subordinated Debt Securities.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Subordinated Indenture provides that EPG may, without the consent of
the Subordinated Debt Trustee or the holders of any Subordinated Debt Securities
issued thereunder, consolidate or merge with, or sell, lease or transfer its
properties and assets as, or substantially as, an entirety to, any Person,
provided that (i) either EPG is the surviving entity or such successor Person
expressly assumes or becomes a co-obligor jointly and severally liable with
respect to the due and punctual payment of the principal of, and any premium and
interest on, all the Subordinated Debt Securities and the performance or
observance of every covenant and condition of the Subordinated Indenture on the
part of 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
Subordinated Indenture. Any such successor Person shall succeed to and be
substituted for, and may exercise every right and power of, EPG under the
Subordinated Indenture with the same effect as if it had been named a party in
the Subordinated Indenture and EPG shall, except in the case of a lease, be
released and discharged from all its obligations under the Subordinated Debt
Securities and the Subordinated Indenture. Notwithstanding the foregoing, the
predecessor Person may, in the alternative, elect not to be so released from
such obligations, provided that the predecessor Person and the successor Person
shall agree, pursuant to a supplemental Subordinated Indenture, to be
co-obligors jointly and severally with respect to all such obligations.
EVENTS OF DEFAULT
An "Event of Default" will occur under the Subordinated Indenture with
respect to Subordinated Debt Securities of a particular series issued thereunder
upon: (a) default in the payment of the principal of, or premium, if any, on,
any Subordinated Debt Security of such series at its maturity (whether or not
prohibited by the subordination provisions thereof); (b) default in the payment
of any interest on any Subordinated Debt Security of such series when it becomes
due and payable and continuance of such default for a period of 30 days (whether
or not prohibited by the subordination provisions thereof); (c) default in the
performance, or breach, of any term, covenant or warranty contained in the
Subordinated Indenture with respect to such series for a period of 60 days upon
giving written notice as provided in the Subordinated Indenture; (d) the
occurrence of certain events of bankruptcy; or (e) in the event Subordinated
Debt Securities are issued to an EPE Trust or a Trustee of such trust in
connection with the issuance of Trust Securities by such EPE Trust, the
voluntary or involuntary dissolution, winding-up or termination of such EPE
Trust, except in connection with the distribution of Subordinated Debt
Securities to the holders of Trust Securities in liquidation of such EPE Trust,
the redemption of all of the Trust Securities of such EPE Trust, or certain
mergers, consolidations or amalgamations, each as permitted by the Declaration
of such EPE Trust.
The Subordinated Indenture provides that if an Event of Default with
respect to a series of Subordinated Debt Securities issued thereunder shall have
occurred and be continuing, either the Subordinated Debt Trustee or the holders
of not less than 25% in principal amount of Subordinated Debt Securities of such
series then outstanding may declare the principal amount of all Subordinated
Debt Securities of such series to be due and payable immediately upon giving
written notice as provided in the Subordinated Indenture. The Subordinated
Indenture provides that the holders of a majority in principal amount of
Subordinated Debt
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Securities then outstanding of such series may rescind and annul such
declaration and its consequences under certain circumstances.
The holders of a majority in principal amount of Subordinated Debt
Securities of a series then outstanding may waive past defaults under the
Subordinated Indenture with respect to such series and its consequences (except
a continuing default in the payment of principal of or premium, if any, or
interest on any series of Subordinated Debt Securities or a default in respect
of any covenant or provision of the Subordinated Indenture which cannot be
modified or amended by a supplemental Subordinated Indenture without the consent
of the holder of each outstanding Subordinated Debt Security affected thereby).
Pursuant to the Subordinated Indenture, the holders of a majority in
aggregate principal amount of all affected series of Subordinated Debt
Securities then outstanding may direct with respect to such series the time,
method, and place of conducting any proceeding for any remedy available to the
Subordinated Debt Trustee or exercising any trust or power conferred on the
Subordinated Debt Trustee, provided that such direction shall not be in conflict
with any rule of law or the Subordinated Indenture. Before proceeding to
exercise any right or power under the Subordinated Indenture at the direction of
any holders, the Subordinated Debt Trustee shall be entitled to receive from
such holders reasonable security or indemnity against the costs, expenses, and
liabilities which might be incurred by it in compliance with any such direction.
Under the terms of the Subordinated Indenture, EPG is required to furnish
to the Subordinated Debt Trustee annually an Officer's Certificate to the effect
that to the best of such officer's knowledge, EPG is not in default in the
performance and observance of the terms, provisions and conditions of the
Subordinated Indenture or, if such officer has knowledge that EPG is in default,
specifying such default. The Subordinated Indenture requires the Subordinated
Debt Trustee to give to all holders of Subordinated Debt Securities outstanding
thereunder notice of any Default by EPG in the manner provided in the
Subordinated Indenture, unless such Default shall have been cured or waived;
however, except in the case of a default in the payment of principal of and
premium, if any, or interest, if any, on any Subordinated Debt Securities
outstanding thereunder, the Subordinated Debt Trustee is entitled to withhold
such notice in the event that the board of directors, the executive committee,
or a trust committee of directors or certain officers of the Subordinated Debt
Trustee in good faith determine that withholding such notice is in the interest
of the holders of such outstanding Subordinated Debt Securities.
CHANGE IN CONTROL AND HIGHLY LEVERAGED TRANSACTIONS
The Subordinated Indenture contains no covenants or other provisions to
afford protection to holders of the Subordinated Debt Securities in the event of
a highly leveraged transaction or a change in control of the Company.
MODIFICATION OF THE SUBORDINATED INDENTURE
The Subordinated Indenture provides that EPG and the Subordinated Debt
Trustee may enter into supplemental indentures without the consent of the
holders of Subordinated Debt Securities issued thereunder to: (a) evidence the
succession of another Person to EPG under the Subordinated Indenture and the
Subordinated Debt Securities and the assumption by such successor Person of the
obligations of EPG thereunder; (b) evidence another Person's becoming a
co-obligor with respect to the obligations of EPG under the Subordinated
Indenture and the Subordinated Debt Securities; (c) add covenants and Events of
Default for the benefit of the holders of all or any series of such Subordinated
Debt Securities or to surrender any right or power conferred by the Subordinated
Indenture upon EPG; (d) add to, change or eliminate any of the provisions of the
Subordinated Indenture, provided that any such addition, change or elimination
shall become effective only after there are no such Subordinated Debt Securities
of any series entitled to the benefit of such provision outstanding; (e)
establish the forms or terms of the Subordinated Debt Securities of any series
issued thereunder; (f) cure any ambiguity or correct any inconsistency in the
Subordinated Indenture; (g) evidence the acceptance of appointment by a
successor (including as a co-obligor) Subordinated Debt Trustee; and (h) qualify
the Subordinated Indenture under the Trust Indenture Act.
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The Subordinated Indenture also provides that EPG and the Subordinated Debt
Trustee, with the consent of the holders of a majority in aggregate principal
amount of all outstanding Subordinated Debt Securities of all series affected by
such modification (voting as one class), to modify the Subordinated Indenture or
the rights of the holders of such Subordinated Debt Securities; provided that
EPG and the Subordinated Debt Trustee may not, without the consent of the holder
of each outstanding Subordinated Debt Security affected thereby: (a) change the
stated maturity of the principal of or any installment of principal of or
interest, if any, on, any Subordinated Debt Security, or reduce the principal
amount thereof or premium, if any, on or the rate of interest thereon, (b)
reduce the percentage in principal amount of Subordinated Debt Securities
required for any such supplemental Subordinated Indenture or for any waiver
provided for in the Subordinated Indenture, (c) change EPG's obligation to
maintain an office or agency for payment of Subordinated Debt Securities and the
other matters specified therein, or (d) modify any of the provisions of the
Subordinated Indenture relating to the execution of supplemental indentures with
the consent of holders of Subordinated Debt Securities which are discussed in
this paragraph or modify any provisions relating to the waiver by holders of
past defaults and certain covenants, except to increase any required percentage
or to provide that certain other provisions of the Subordinated Indenture cannot
be modified or waived without the consent of the holder of each outstanding
Subordinated Debt Security affected thereby.
SATISFACTION AND DISCHARGE; LEGAL AND COVENANT DEFEASANCE
Under the terms of the Subordinated Indenture, EPG may satisfy and
discharge certain obligations to holders of Subordinated Debt Securities of any
series which have not already been delivered to the Subordinated Debt Trustee
for cancellation and which have either become due and payable or are by their
terms due and payable within one year or are to be called for redemption within
one year by (i) depositing or causing to be deposited with the Subordinated Debt
Trustee funds in an amount sufficient to pay the principal and any premium and
interest to the date of such deposit (in case of Subordinated Debt Securities of
such series which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be, (ii) paying or causing to be paid all other
sums payable under the Subordinated Indenture with respect to such Subordinated
Debt Securities, and (iii) delivering to the Subordinated Debt Trustee an
Officer's Certificate and Opinion of Counsel relating to such satisfaction and
discharge.
The Subordinated 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
Subordinated Debt Securities issued thereunder (excluding, however, certain
obligations, such as the obligation to register the transfer or exchange of such
outstanding Subordinated Debt Securities of such series, to replace stolen,
lost, mutilated or destroyed certificates, to pay principal and interest on the
original stated due dates or specified redemption date, to make any sinking fund
payments, and to maintain paying agencies) on the 91st day following the deposit
referred to in the following clause (i), subject to the following conditions:
(i) the irrevocable deposit, in trust, of cash or U.S. Government Obligations
(or a combination thereof) which through the payment of interest and principal
thereof in accordance with their terms will provide cash in an amount sufficient
to pay the principal and interest and premium, if any, on the outstanding
Subordinated Debt Securities of such series and any mandatory sinking fund
payments, in each case, on the stated maturity of such payments in accordance
with the terms of the Subordinated Indenture and the outstanding Subordinated
Debt Securities of such series or on any Redemption Date established pursuant to
clause (iii) below; (ii) 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 Subordinated
Indenture, there has been a change in the applicable federal income tax law, in
either case, to the effect that, and confirming that, the holders of the
Subordinated Debt Securities will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and defeasance and will be
subject to federal income tax on the same amount and in the same manner and at
the same times, as would have been the case if such deposit and defeasance had
not occurred; (iii) if the Subordinated Debt Securities are to be redeemed prior
to Stated Maturity (other than from mandatory sinking fund payments or analogous
payments), notice of such redemption shall have been duly given pursuant to the
Subordinated Indenture or provision therefor satisfactory to the Subordinated
Debt Trustee shall have been made; (iv) no Event of Default or event which with
notice or lapse of time or both would become an Event of Default will have
occurred and be continuing on the date of such deposit; and
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(v) EPG's delivery to the Subordinated Debt Trustee of an Officer's Certificate
and an Opinion of Counsel, each stating that the conditions precedent under the
Subordinated Indenture have been complied with.
Under the Subordinated Indenture, 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 Subordinated Indenture, in respect of any series of
Subordinated Debt Securities on the 91st day following the deposit referred to
in clause (i) in the immediately preceding paragraph, subject to satisfaction of
the conditions described in clauses (i), (iii), (iv) and (v) in the immediately
preceding paragraph with respect to such series of Subordinated Debt Securities
and the delivery of an Opinion of Counsel confirming that the holders of the
Subordinated Debt Securities will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and covenant defeasance and will
be subject to federal income tax on the same amount and in the same manner and
at the same times, as would have been the case if such deposit and covenant
defeasance had not occurred.
NO PERSONAL LIABILITY OF OFFICERS, DIRECTORS, EMPLOYEES OR STOCKHOLDERS
No director, officer, employee or stockholder, as such, of EPG or any of
its affiliates shall have any personal liability in respect of the obligations
of EPG under the Subordinated Indenture or the Subordinated Debt Securities by
reason of his, her or its status as such.
APPLICABLE LAW
The Subordinated Indenture is, and the Subordinated Debt Securities offered
hereby will be, governed by, and construed in accordance with, the laws of the
State of New York.
CONCERNING THE SUBORDINATED DEBT TRUSTEE
The Subordinated Indenture provides that, except during the continuance of
an Event of Default, the Subordinated Debt Trustee will perform only such duties
as are specifically set forth in the Subordinated Indenture. If an Event of
Default has occurred and is continuing, the Subordinated Debt Trustee will use
the same degree of care and skill in its exercise of the rights and powers
vested in it by the Subordinated Indenture as a prudent person would exercise
under the circumstances in the conduct of such person's own affairs.
The Subordinated Indenture contains limitations on the rights of the
Subordinated Debt Trustee, should it become a creditor of 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 Subordinated Debt Trustee
is permitted to engage in other transactions; provided, however, that if it
acquires any conflicting interest, it must eliminate such conflict or resign.
The Chase Manhattan Bank, a New York banking corporation, is the
Subordinated Debt Trustee under the Subordinated Indenture, and is also the
Senior Debt Trustee under the Senior Indenture. EPG maintains banking and other
commercial relationships with The Chase Manhattan Bank in the ordinary course of
business.
DESCRIPTION OF CAPITAL STOCK OF THE COMPANY
The statements under this caption are brief summaries, do not purport to be
complete, and are subject to, and are qualified in their entirety by reference
to, the more complete descriptions contained in (a) EPG's Restated Certificate
of Incorporation, as amended (the "EPG Charter"), and the Shareholder Rights
Agreement, dated as of July 7, 1992, as amended, 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.
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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
November 30, 1997 there were issued and outstanding 59,797,452 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;
(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;
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(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 shares of Preferred Stock are
outstanding. Pursuant to the Shareholder Rights Agreement (as defined below),
the Board of Directors of EPG has designated the Series A Preferred Stock (as
defined below).
SHAREHOLDER RIGHTS AGREEMENT
In July 1992, EPG's Board of Directors declared a dividend distribution of
one right (a "Right") for each share of Common Stock then outstanding. In July
1997, the Board amended the Shareholders Rights Agreement pursuant to which the
Rights were issued. All shares of Common Stock issued subsequent to July 1992
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 $150 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.
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 for a
60-day period thereafter each Right not owned by such person will entitle the
holder thereof to purchase, at the Right's then-current exercise price, shares
of Common Stock (or in certain circumstances other equity securities of 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
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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 for a period of three years after such
person becomes an interested stockholder. The statutory ban does not apply if,
upon consummation of the transaction in which any person becomes an interested
stockholder, the interested stockholder owns at least 85% of the outstanding
voting stock of the corporation (excluding voting stock held by persons who are
both directors and officers or by certain employee stock plans) or if either the
proposed transaction or the transaction by which the interested stockholder
became such is approved by the board of directors of the corporation prior to
the time such stockholder becomes an interested stockholder.
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 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.
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DESCRIPTION OF THE TRUST PREFERRED SECURITIES
Each EPE Trust may issue, from time to time, only one series of Trust
Preferred Securities having terms described in the Prospectus Supplement
relating thereto. The Declaration of each EPE Trust authorizes the
Administrative Trustees of such EPE Trust to issue on behalf of such EPE Trust
one series of Trust Preferred Securities. The Declaration will be qualified as
an indenture under the Trust Indenture Act. The Trust Preferred Securities will
have such terms, including distributions, redemption, voting, conversion,
exchange, liquidation rights and such other preferred, deferred or other special
rights or such restrictions as shall be set forth in the Declaration or made
part of the Declaration by the Trust Indenture Act. Reference is made to the
Prospectus Supplement relating to the Trust Preferred Securities of the EPE
Trust for specific terms, including (a) the distinctive designation of such
Trust Preferred Securities; (b) the number of Trust Preferred Securities issued
by such EPE Trust; (c) the annual distribution rate (or method of determining
such rate) for Trust Preferred Securities issued by such EPE Trust and the date
or dates upon which such distributions shall be payable; provided, however, that
distributions on such Trust Preferred Securities shall be payable on a quarterly
basis to holders of such Trust Preferred Securities as of a record date in each
quarter during which such Trust Preferred Securities are outstanding; (d)
whether distributions on Trust Preferred Securities issued by such EPE Trust
shall be cumulative, and, in the case of Trust Preferred Securities having such
cumulative distribution rights, the date or dates or method of determining the
date or dates from which distributions on Trust Preferred Securities issued by
such EPE Trust shall be cumulative; (e) the amount or amounts which shall be
paid out of the assets of such EPE Trust to the holders of Trust Preferred
Securities of such EPE Trust upon voluntary or involuntary dissolution,
winding-up or termination of such EPE Trust; (f) the obligation, if any, of such
EPE Trust to purchase or redeem Trust Preferred Securities issued by such EPE
Trust and the price or prices at which, the period or periods within which, and
the terms and conditions upon which, Trust Preferred Securities issued by such
EPE Trust shall be purchased or redeemed, in whole or in part, pursuant to such
obligation; (g) the voting rights, if any, of Trust Preferred Securities issued
by such EPE Trust in addition to those required by law, including the number of
votes per Trust Preferred Security and any requirement for the approval by the
holders of Trust Preferred Securities, or of Trust Preferred Securities issued
by one or more EPE Trusts, or of both, as a condition to specified action or
amendments to the Declaration of such EPE Trust; (h) the terms and conditions,
if any, upon which the assets of such EPE Trust may be distributed to holders of
Trust Preferred Securities; (i) provisions regarding convertibility or
exchangeability of the Trust Preferred Securities for capital stock of EPG; (j)
if applicable, any securities exchange upon which the Trust Preferred Securities
shall be listed; and (k) any other relevant rights, preferences, privileges,
limitations or restrictions of Trust Preferred Securities issued by such EPE
Trust not inconsistent with the Declaration of such EPE Trust or with applicable
law. All Trust Preferred Securities offered hereby will be guaranteed by the
Company to the extent set forth below under "Description of the Trust
Guarantees." Any U.S. federal income tax considerations applicable to any
offering of Trust Preferred Securities will be described in the Prospectus
Supplement relating thereto.
In connection with the issuance of Trust Preferred Securities, each EPE
Trust will issue one series of Trust Common Securities. The Declaration of each
EPE Trust authorizes the Administrative Trustees of such trust to issue on
behalf of such EPE Trust one series of Trust Common Securities having such terms
including distributions, redemption, voting, liquidation rights or such
restrictions as shall be set forth therein. The terms of the Trust Common
Securities issued by an EPE Trust will be substantially identical to the terms
of the Trust Preferred Securities issued by such EPE Trust, and the Trust Common
Securities will rank pari passu, and payments will be made thereon pro rata,
with the Trust Preferred Securities except that, upon an event of default under
the Declaration, the rights of the holders of the Trust Common Securities to
payment in respect of distributions and payments upon liquidation, redemption
and otherwise will be subordinated to the rights of the holders of the Trust
Preferred Securities. Except in certain limited circumstances, the Trust Common
Securities will also carry the right to vote to appoint, remove or replace any
of the Trustees of an EPE Trust. All of the Trust Common Securities of each EPE
Trust will be directly or indirectly owned by the Company.
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DESCRIPTION OF THE TRUST GUARANTEES
Set forth below is a summary of information concerning the Trust Guarantees
which will be executed and delivered by EPG from time to time for the benefit of
the holders of the Trust Preferred Securities. Each Trust Guarantee will be
qualified as an indenture under the Trust Indenture Act. The Chase Manhattan
Bank will act as indenture trustee under each Trust Guarantee (the "Trust
Guarantee Trustee"). The terms of each Trust Guarantee will be those set forth
in such Trust Guarantee and those made part of such Trust Guarantee by the Trust
Indenture Act. The summary does not purport to be complete and is subject in all
respects to the provisions of, and is qualified in its entirety by reference to,
the form of Trust Guarantee, which is filed as an exhibit to the Registration
Statement of which this Prospectus forms a part, and the Trust Indenture Act.
Each Trust Guarantee will be held by the Trust Guarantee Trustee for the benefit
of the holders of the Trust Preferred Securities of the applicable EPE Trust.
GENERAL
Pursuant to each Trust Guarantee, EPG will irrevocably and unconditionally
agree, to the extent set forth therein, to pay in full, to the holders of the
Trust Preferred Securities issued by an EPE Trust, the Trust Guarantee Payments
(as defined herein) (except to the extent paid by such EPE Trust), as and when
due, regardless of any defense, right of set-off or counterclaim which such EPE
Trust may have or assert. The following payments with respect to Trust Preferred
Securities issued by an EPE Trust to the extent not paid by such EPE Trust (the
"Trust Guarantee Payments"), will be subject to the Trust Guarantee thereon
(without duplication): (i) any accrued and unpaid distributions which are
required to be paid on such Trust Preferred Securities, to the extent such EPE
Trust shall have funds available therefor; (ii) the redemption price, including
all accrued and unpaid distributions (the "Redemption Price"), to the extent
such EPE Trust has funds available therefor with respect to any Trust Preferred
Securities called for redemption by such EPE Trust; and (iii) upon a voluntary
or involuntary dissolution, winding-up or termination of such EPE Trust (other
than in connection with the distribution of the assets of such EPE Trust to the
holders of Trust Preferred Securities or the redemption of all of the Trust
Preferred Securities), the lesser of (a) the aggregate of the liquidation amount
and all accrued and unpaid distributions on such Trust Preferred Securities to
the date of payment, to the extent such EPE Trust has funds available therefor
and (b) the amount of assets of such EPE Trust remaining available for
distribution to holders of such Trust Preferred Securities in liquidation of
such EPE Trust. EPG's obligation to make a Trust Guarantee Payment may be
satisfied by direct payment of the required amounts by the Company to the
holders of Trust Preferred Securities or by causing the applicable EPE Trust to
pay such amounts to such holders.
Each Trust Guarantee will be a full and unconditional guarantee with
respect to the Trust Preferred Securities issued by the applicable EPE Trust,
but will not apply to any payment of distributions except to the extent such EPE
Trust shall have funds available therefor. If EPG does not make interest
payments on the Subordinated Debt Securities purchased by an EPE Trust, such EPE
Trust will not pay distributions on the Trust Preferred Securities issued by
such EPE Trust and will not have funds available therefor. See "Description of
the Subordinated Debt Securities -- Certain Covenants."
EPG has also agreed separately to irrevocably and unconditionally guarantee
the obligations of the EPE Trusts with respect to the Trust Common Securities
(the "Trust Common Securities Guarantees") to the same extent as the Trust
Guarantees, except that upon an event of default under the Subordinated
Indenture, holders of Trust Preferred Securities shall have priority over
holders of Trust Common Securities with respect to distributions and payments on
liquidation, redemption or otherwise.
CERTAIN COVENANTS
In each Trust Guarantee, EPG will covenant that, so long as any Trust
Preferred Securities issued by the applicable EPE Trust remain outstanding, if
there shall have occurred any event that would constitute an event of default
under such Trust Guarantee or the Declaration of such EPE Trust, then (a) EPG
shall not declare or pay any dividend on, make any distributions with respect
to, or redeem, purchase or make any liquidation payment with respect to, any of
its capital stock (other than (i) purchases or acquisitions of shares
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of EPG Common Stock in connection with the satisfaction by EPG of its
obligations under any employee benefit plans or the satisfaction by EPG of its
obligations pursuant to any contract or security requiring EPG to purchase
shares of Company Common Stock or, (ii) the purchase of fractional interests in
shares of Company capital stock as a result of a reclassification of Company
capital stock or the exchange or conversion of one class or series of Company
capital stock for another class or series of Company capital stock or make any
guarantee payments with respect to the foregoing and (b) EPG shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees) issued by EPG which rank pari
passu with or junior to the Subordinated Debt Securities.
MODIFICATION OF THE TRUST GUARANTEES; ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of Trust Preferred Securities (in which case no vote will be
required), each Trust Guarantee may be amended only with the prior approval of
the holders of not less than a majority in liquidation amount of the outstanding
Trust Preferred Securities issued by the applicable EPE Trust. The manner of
obtaining any such approval of holders of such Trust Preferred Securities will
be as set forth in an accompanying Prospectus Supplement. All guarantees and
agreements contained in a Trust Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of EPG and shall inure to the benefit of
the holders of the Trust Preferred Securities of the applicable EPE Trust then
outstanding.
TERMINATION
Each Trust Guarantee will terminate as to the Trust Preferred Securities
issued by the applicable EPE Trust upon the first to occur of (a) full payment
of the Redemption Price of all Trust Preferred Securities of such EPE Trust, (b)
distribution of the assets of such EPE Trust to the holders of the Trust
Preferred Securities of such EPE Trust, and (c) full payment of the amounts
payable upon liquidation of such EPE Trust in accordance with the Declaration of
such EPE Trust. Each Trust Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of Trust Preferred
Securities issued by the applicable EPE Trust must restore payment of any sums
paid under such Trust Preferred Securities or such Trust Guarantee.
EVENTS OF DEFAULT
An event of default under a Trust Guarantee will occur upon the failure of
EPG to perform any of its payment or other obligations thereunder.
The holders of a majority in liquidation amount of the Trust Preferred
Securities relating to such Trust Guarantee have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trust Guarantee Trustee in respect of the Trust Guarantee or to direct the
exercise of any trust or power conferred upon the Trust Guarantee Trustee under
such Trust Preferred Securities. If the Trust Guarantee Trustee fails to enforce
such Trust Guarantee, any holder of Trust Preferred Securities relating to such
Trust Guarantee may institute a legal proceeding directly against EPG to enforce
the Trust Guarantee Trustee's rights under such Trust Guarantee, without first
instituting a legal proceeding against the relevant EPE Trust, the Trust
Guarantee Trustee or any other person or entity. Notwithstanding the foregoing,
if EPG has failed to make a guarantee payment, a holder of Trust Preferred
Securities may directly institute a proceeding against EPG for enforcement of
the Trust Guarantee for such payment. EPG waives any right or remedy to require
that any action be brought first against such EPE Trust or any other person or
entity before proceeding directly against EPG.
STATUS OF THE TRUST GUARANTEES
The Trust Guarantees will constitute unsecured obligations of EPG and will
rank (i) subordinate and junior in right of payment to all other liabilities of
EPG; (ii) pari passu with the most senior preferred or preference stock now or
hereafter issued by EPG and with any guarantee now or hereafter entered into by
EPG in respect of any preferred or preference stock of any affiliate of EPG; and
(iii) senior to the EPG
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Common Stock. The terms of the Trust Preferred Securities provide that each
holder of Trust Preferred Securities issued by the applicable EPE Trust, by
acceptance thereof, agrees to the subordination provisions and other terms of
the Trust Guarantee relating thereto.
The Trust Guarantees will constitute a guarantee of payment and not of
collection (that is, the guaranteed party may institute a legal proceeding
directly against the guarantor to enforce its rights under the Trust Guarantee
without instituting a legal proceeding against any other person or entity).
INFORMATION CONCERNING THE TRUST GUARANTEE TRUSTEE
The Trust Guarantee Trustee, prior to the occurrence of a default with
respect to a Trust Guarantee, undertakes to perform only such duties as are
specifically set forth in such Trust Guarantee and, after default, shall
exercise the same degree of care as a prudent individual would exercise in the
conduct of his or her own affairs. Subject to such provisions, the Trust
Guarantee Trustee is under no obligation to exercise any of the powers vested in
it by a Trust Guarantee at the request of any holder of Trust Preferred
Securities, unless offered reasonable indemnity against the costs, expenses and
liabilities which might be incurred thereby.
The Company and certain of its affiliates may, from time to time, maintain
a banking relationship with the Trust Guarantee Trustee.
GOVERNING LAW
The Trust Guarantees will be governed by, and construed in accordance with,
the laws of the State of New York.
RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES,
THE SUBORDINATED DEBT SECURITIES AND THE GUARANTEES
As long as EPG makes payments of interest and other payments when due on
the Subordinated Debt Securities, such payments will be sufficient to cover
distributions and other payments due on the Trust Preferred Securities,
primarily because (i) the aggregate principal amount of the Subordinated Debt
Securities will be equal to the sum of the aggregate stated liquidation
preference of the Trust Securities; (ii) the interest rate and interest and
other payment dates of the Subordinated Debt Securities will match the
distribution rate and distribution and other payment dates for the Trust
Preferred Securities; (iii) EPG shall pay for all and any costs, expenses and
liabilities of the EPE Trusts except the EPE Trusts' obligations to holders of
the Trust Preferred Securities under the Trust Preferred Securities of the EPE
Trusts; and (iv) the Declaration of each EPE Trust further provides that such
EPE Trust will not engage in any activity that is not consistent with the
limited purposes of such EPE Trust.
Payments of distributions and other amounts due on the Trust Preferred
Securities of an EPE Trust (to the extent such EPE Trust has funds available for
the payment of such distributions) are irrevocably guaranteed by EPG as and to
the extent set forth under "Description of Trust Guarantees." Taken together,
EPG's obligations under the Subordinated Debt Securities, the Subordinated
Indenture, the Declarations of the EPE Trusts and the Trust Guarantees provide a
full, irrevocable and unconditional guarantee of payments of distributions and
other amounts due on the Trust Preferred Securities. No single document standing
alone or operating in conjunction with fewer than all of the other documents
constitutes such guarantee. It is only the combined operation of these documents
that has the effect of providing a full, irrevocable and unconditional guarantee
of each of the EPE Trust's obligations under the Trust Preferred Securities. If
and to the extent that EPG does not make payments on the Subordinated Debt
Securities, the EPE Trusts will not pay distributions or other amounts due on
the Trust Preferred Securities. The Trust Guarantees do not cover payment of
distributions when an EPE Trust does not have sufficient funds to pay such
distributions. In such event, the remedies of a holder of the Trust Preferred
Securities of such EPE Trust are described herein under "Description of the
Trust Guarantees -- Events of Default." The obligations of EPG under the Trust
Guarantees are unsecured and are subordinate and junior in right of payment to
all other liabilities of EPG.
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Notwithstanding anything to the contrary in the Subordinated Indenture and
to the extent set forth therein, EPG has the right to set-off any payment it is
otherwise required to make thereunder with and to the extent EPG has theretofore
made, or is concurrently on the date of such payment making, a payment under a
Trust Guarantee.
A holder of Trust Preferred Securities of an EPE Trust may institute a
legal proceeding directly against EPG to enforce its rights under the Trust
Guarantee with respect to such EPE Trust without first instituting a legal
proceeding against the Trust Guarantee Trustee, such EPE Trust or any other
person or entity.
The Trust Preferred Securities of an EPE Trust evidence a beneficial
interest in such EPE Trust. The EPE Trusts exist for the sole purpose of issuing
the Trust Securities and investing the proceeds thereof in Subordinated Debt
Securities. A principal difference between the rights of a holder of Trust
Preferred Securities and a holder of Subordinated Debt Securities is that a
holder of Subordinated Debt Securities is entitled to receive from EPG the
principal amount of and interest accrued on Subordinated Debt Securities held,
while a holder of Trust Preferred Securities is entitled to receive
distributions from an EPE Trust (or from EPG under the Trust Guarantee) if and
to the extent such EPE Trust has funds available for the payment of such
distributions.
Upon any voluntary or involuntary termination, winding-up or liquidation of
an EPE Trust involving the liquidation of the Subordinated Debt Securities, the
holders of the Trust Preferred Securities of such EPE Trust will be entitled to
receive, out of assets held by such EPE Trust and after satisfaction of
liabilities to creditors of such EPE Trust as provided by applicable law, the
liquidation distribution in cash. See "Description of Trust Preferred
Securities." Upon any voluntary or involuntary liquidation or bankruptcy of EPG,
the Property Trustee of an EPE Trust, as holder of the Subordinated Debt
Securities of such Trust, would be a subordinated creditor of EPG, subordinated
in right of payment to all Senior Debt of EPG, but entitled to receive payment
in full of principal and interest, before any shareholders of EPG receive
payments or distributions. Since EPG is the guarantor under the Trust Guarantees
and has agreed to pay for all costs, expenses and liabilities of the EPE Trusts
(other than the EPE Trusts' obligations to the holders of the Trust Preferred
Securities), the positions of a holder of Trust Preferred Securities and a
holder of Subordinated Debt Securities relative to other creditors and to
shareholders of EPG in the event of liquidation or bankruptcy of EPG would be
substantially the same.
A default or event of default under any Senior Debt of EPG will not
constitute a default or Event of Default under the Subordinated Indenture.
However, in the event of payment defaults under, or acceleration of, Senior Debt
of EPG, the subordination provisions of the Subordinated Indenture provide that
no payments may be made in respect of the Subordinated Debt Securities until
Senior Debt has been paid in full or any payment default thereunder has been
cured or waived. Failure to make required payments on the Subordinated Debt
Securities would constitute an Event of Default under the Subordinated Indenture
with respect thereto.
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PLAN OF DISTRIBUTION
EPG and any EPE Trust may offer or sell the EPG Securities and the Trust
Preferred Securities, respectively, to or through one or more underwriters,
dealers or agents as designated from time to time, or through a combination of
such methods and also may offer or sell the EPG Securities and the Trust
Preferred Securities, respectively, directly to one or more other purchasers.
EPG and any EPE Trust may sell the EPG Securities and the Trust Preferred
Securities, respectively, 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; (vi) the net proceeds to an EPE Trust from
the sales; and (vii) any securities exchanges or markets on which the Securities
may be listed.
Unless otherwise set forth in the Prospectus Supplement relating to a
particular series of Securities, the obligations of the underwriters to purchase
such series of Securities will be subject to certain conditions precedent and
each of the underwriters with respect to such series of Securities will be
obligated to purchase all of the Securities of such series allocated to it if
any such Securities are purchased. Any initial public offering price and any
discounts or concessions allowed, reallowed, or paid to dealers may be changed
from time to time.
The EPG Securities and the Trust Securities may be offered and sold by EPG
or any EPE Trust, respectively, directly or through agents designated by EPG or
any EPE Trust from time to time. Unless otherwise indicated in the related
Prospectus Supplement, each such agent will be acting on a best efforts basis
for the period of its appointment. Any agent participating in the distribution
of Securities may be deemed to be an "underwriter," as that term is defined in
the Securities Act, of the Securities so offered and sold. The Securities also
may be sold to dealers at the applicable price to the public set forth in the
Prospectus Supplement relating to such series of Securities. Such dealers may be
deemed to be "underwriters" within the meaning of the Securities Act.
Underwriters, dealers and agents may be entitled, under agreements entered into
with EPG or an EPE Trust, to indemnification by EPG or such EPE Trust against
certain civil liabilities, including liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, or be customers of, EPG in the ordinary course of
business.
Other than Common Stock, Preferred Stock and Senior Debt Securities, all
Securities offered will be a new issue of securities with no established trading
market. Any underwriter to whom Securities are sold by EPG or any EPE Trust for
public offering and sale may make a market in such Securities, but such
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. The Securities may or may not be listed on a
national securities exchange or a foreign securities exchange, except that the
Common Stock is listed for trading on the NYSE. Any Common Stock sold pursuant
to a Prospectus Supplement will be listed for trading on the NYSE, subject to
official notice of issuance. No assurance can be given as to the liquidity of or
the trading markets for any Securities.
LEGAL MATTERS
The validity of the Common Stock, Preferred Stock, Senior Debt Securities,
Subordinated Debt Securities and Trust Guarantees will be passed upon for EPG
and the EPE Trusts by Andrews & Kurth L.L.P., Houston, Texas. The validity of
the Trust Preferred Securities under Delaware Law will be passed upon for the
EPE Trusts by Potter Anderson & Corron, Wilmington, Delaware, as special
Delaware counsel. If the Securities are being distributed in an underwritten
offering, the validity of the Securities will be passed upon for the
underwriters by counsel identified in the related Prospectus Supplement.
29
<PAGE> 32
EXPERTS
The consolidated financial statements and financial statement schedule of
EPG as of December 31, 1996 and 1995, and for the years ended December 31, 1996,
1995, and 1994, 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.
30
<PAGE> 33
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......... $191,750
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 furnished 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
II-1
<PAGE> 34
dividends or unlawful stock purchases or redemptions, or (iv) any transaction
from which the director derived an improper personal benefit.
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, 1.2 and 1.3 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>
EXHIBIT NO. EXHIBIT
----------- -------
<C> <S>
1.1 -- Form of EPG Debt Securities Underwriting Agreement*
1.2 -- Form of EPG Equity Securities Underwriting Agreement*
1.3 -- Form of Trust Preferred Securities Underwriting
Agreement*
4.1 -- Indenture dated November 13, 1996 between EPG and The
Chase Manhattan Bank, as Trustee (incorporated by
reference to Exhibit 4.1 of EPG's Current Report on Form
8-K, File No. 1-2700, filed November 13, 1996)
4.2 -- Form of Subordinated Indenture between EPG and The Chase
Manhattan Bank, as Trustee (including form of
subordinated security)
4.3 -- Certificate of Trust of El Paso Energy Capital Trust I
4.4 -- Declaration of Trust of El Paso Energy Capital Trust I,
dated as of December 10, 1997
4.5 -- Certificate of Trust of El Paso Energy Capital Trust II
4.6 -- Declaration of Trust of El Paso Energy Capital Trust II,
dated as of December 10, 1997
4.7 -- Certificate of Trust of El Paso Energy Capital Trust III
4.8 -- Declaration of Trust of El Paso Energy Capital Trust III,
dated as of December 10, 1997
4.9 -- Form of Amended and Restated Declaration of Trust
(including form of Trust Preferred Security) (Agreements
for El Paso Energy Capital Trust I, El Paso Energy
Capital Trust II and El Paso Energy Capital Trust III are
substantially identical except for names and dates)**
4.10 -- Form of Trust Preferred Securities Guarantee Agreement to
be issued by EPG (Agreements for El Paso Energy Capital
Trust I, El Paso Energy Capital Trust II and El Paso
Energy Capital Trust III are substantially identical
except for names and dates)**
4.11 -- 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)
</TABLE>
II-2
<PAGE> 35
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
----------- -------
<C> <S>
4.12 -- By-laws of EPG, as amended October 22, 1997 (incorporated
by reference to Exhibit 3.B of EPG's Form 10-Q for the
quarter ended September 30, 1997, File No. 1-2700, filed
November 13, 1997)
4.13 -- Amended and Restated Shareholder Rights Agreement, dated
as of July 23, 1997, between EPG and The First National
Bank of Boston, as Rights Agent (incorporated by
reference to Exhibit 1 of EPG's Form 8-A/A, File No.
1-2700, filed August 13, 1997)
5.1 -- Opinion of Andrews & Kurth L.L.P. as to the legality of
the Common Stock, Preferred Stock, Senior Debt
Securities, Subordinated Debt Securities and Trust
Guarantee**
5.2 -- Opinion of Potter Anderson & Corroon as to the legality
of the Trust Preferred Securities**
8.1 -- Opinion of Andrews & Kurth L.L.P. as to certain federal
income tax matters*
12.1 -- Computation of Ratio of Earnings to Fixed Charges and
Ratio of Earnings to Combined Fixed Charges and Preferred
and Preference Stock Dividend Requirements
23.1 -- Consent of Coopers & Lybrand L.L.P.
23.2 -- Consent of Andrews & Kurth L.L.P. (included in Exhibits
5.1 and 8.1)
23.3 -- Consent of Potter Anderson & Corroon (included in Exhibit
5.2)
24.1 -- Powers of Attorney (included on signature page)
25.1 -- Form T-1 Statement of Eligibility of The Chase Manhattan
Bank
25.2 -- Form T-1 Statement of Eligibility of Chase Manhattan Bank
Delaware**
</TABLE>
- ---------------
* To be filed as an exhibit to EPG's Current Report on Form 8-K in connection
with a specific offering.
** To be filed by amendment.
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(l)(a) and A(l)(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.
II-3
<PAGE> 36
(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-4
<PAGE> 37
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on December 19, 1997.
EL PASO NATURAL GAS COMPANY
By: /s/ WILLIAM A. WISE
----------------------------------
William A. Wise
Chairman of the Board
and Chief Executive Officer
Each person whose individual signature appears below hereby authorizes H.
Brent Austin and Britton White, Jr. and each of them as attorneys-in-fact with
full power of substitution, to execute in the name and on behalf of such person,
individually and in each capacity stated below, and to file, any and all
amendments to this Registration Statement, including any and all post-effective
amendments.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates as indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ WILLIAM A. WISE Chairman of the Board, December 19, 1997
- ----------------------------------------------------- Chief Executive
William A. Wise Officer and Director
/s/ RICHARD OWEN BAISH President December 19, 1997
- -----------------------------------------------------
Richard Owen Baish
/s/ H. BRENT AUSTIN Executive Vice President December 19, 1997
- ----------------------------------------------------- and Chief Financial
H. Brent Austin Officer
/s/ JEFFREY I. BEASON Vice President and December 19, 1997
- ----------------------------------------------------- Controller (Chief
Jeffrey I. Beason Accounting Officer)
/s/ BYRON ALLUMBAUGH Director December 19, 1997
- -----------------------------------------------------
Byron Allumbaugh
/s/ JUAN CARLOS BRANIFF Director December 19, 1997
- -----------------------------------------------------
Juan Carlos Braniff
/s/ PETER T. FLAWN Director December 19, 1997
- -----------------------------------------------------
Peter T. Flawn
/s/ JAMES F. GIBBONS Director December 19, 1997
- -----------------------------------------------------
James F. Gibbons
/s/ BEN F. LOVE Director December 19, 1997
- -----------------------------------------------------
Ben F. Love
</TABLE>
II-5
<PAGE> 38
<TABLE>
<C> <S> <C>
/s/ KENNETH L. SMALLEY Director December 19, 1997
- -----------------------------------------------------
Kenneth L. Smalley
/s/ MALCOLM WALLOP Director December 19, 1997
- -----------------------------------------------------
Malcolm Wallop
</TABLE>
II-6
<PAGE> 39
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, El
Paso Energy Capital Trust I certifies that it has reasonable grounds to believe
that it meets the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on December 19, 1997.
El Paso Energy Capital Trust I
By: El Paso Natural Gas Company, as
Sponsor
By: /s/ H. BRENT AUSTIN
----------------------------------
H. Brent Austin
Executive Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, El
Paso Energy Capital Trust II certifies that it has reasonable grounds to believe
that it meets the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on December 19, 1997.
El Paso Energy Capital Trust II
By: El Paso Natural Gas Company, as
Sponsor
By: /s/ H. BRENT AUSTIN
----------------------------------
H. Brent Austin
Executive Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, El
Paso Energy Capital Trust III certifies that it has reasonable grounds to
believe that it meets the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on December 19, 1997.
El Paso Energy Capital Trust III
By: El Paso Natural Gas Company, as
Sponsor
By: /s/ H. BRENT AUSTIN
----------------------------------
H. Brent Austin
Executive Vice President
and Chief Financial Officer
II-7
<PAGE> 40
LIST OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
----------- -------
<C> <S>
1.1 -- Form of EPG Debt Securities Underwriting Agreement*
1.2 -- Form of EPG Equity Securities Underwriting Agreement*
1.3 -- Form of Trust Preferred Securities Underwriting
Agreement*
4.1 -- Indenture dated November 13, 1996 between EPG and The
Chase Manhattan Bank, as Trustee (incorporated by
reference to Exhibit 4.1 of EPG's Current Report on Form
8-K, File No. 1-2700, filed November 13, 1996)
4.2 -- Form of Subordinated Indenture between EPG and The Chase
Manhattan Bank, as Trustee (including form of
subordinated security)
4.3 -- Certificate of Trust of El Paso Energy Capital Trust I
4.4 -- Declaration of Trust of El Paso Energy Capital Trust I,
dated as of December 10, 1997
4.5 -- Certificate of Trust of El Paso Energy Capital Trust II
4.6 -- Declaration of Trust of El Paso Energy Capital Trust II,
dated as of December 10, 1997
4.7 -- Certificate of Trust of El Paso Energy Capital Trust III
4.8 -- Declaration of Trust of El Paso Energy Capital Trust III,
dated as of December 10, 1997
4.9 -- Form of Amended and Restated Declaration of Trust
(including form of Trust Preferred Security) (Agreements
for El Paso Energy Capital Trust I, El Paso Energy
Capital Trust II and El Paso Energy Capital Trust III are
substantially identical except for names and dates)**
4.10 -- Form of Trust Preferred Securities Guarantee Agreement to
be issued by EPG (Agreements for El Paso Energy Capital
Trust I, El Paso Energy Capital Trust II and El Paso
Energy Capital Trust III are substantially identical
except for names and dates)**
4.11 -- 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)
4.12 -- By-laws of EPG, as amended October 22, 1997 (incorporated
by reference to Exhibit 3.B of EPG's Form 10-Q for the
quarter ended September 30, 1997, File No. 1-2700, filed
November 13, 1997)
4.13 -- Amended and Restated Shareholder Rights Agreement, dated
as of July 23, 1997, between EPG and The First National
Bank of Boston, as Rights Agent (incorporated by
reference to Exhibit 1 of EPG's Form 8-A/A, File No.
1-2700, filed August 13, 1997)
5.1 -- Opinion of Andrews & Kurth L.L.P. as to the legality of
the Common Stock, Preferred Stock, Senior Debt
Securities, Subordinated Debt Securities and Trust
Guarantee**
5.2 -- Opinion of Potter Anderson & Corroon as to the legality
of the Trust Preferred Securities**
8.1 -- Opinion of Andrews & Kurth L.L.P. as to certain federal
income tax matters*
</TABLE>
<PAGE> 41
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
----------- -------
<C> <S>
12.1 -- Computation of Ratio of Earnings to Fixed Charges and
Ratio of Earnings to Combined Fixed Charges and Preferred
and Preference Stock Dividend Requirements
23.1 -- Consent of Coopers & Lybrand L.L.P.
23.2 -- Consent of Andrews & Kurth L.L.P. (included in Exhibits
5.1 and 8.1)
23.3 -- Consent of Potter Anderson & Corroon (included in Exhibit
5.2)
24.1 -- Powers of Attorney (included on signature page)
25.1 -- Form T-1 Statement of Eligibility of The Chase Manhattan
Bank
25.2 -- Form T-1 Statement of Eligibility of Chase Manhattan Bank
Delaware**
</TABLE>
- ---------------
* To be filed as an exhibit to EPG's Current Report on Form 8-K in connection
with a specific offering.
** To be filed by amendment.
<PAGE> 1
EXHIBIT 4.2
================================================================================
EL PASO NATURAL GAS COMPANY
TO
THE CHASE MANHATTAN BANK
AS TRUSTEE
------------------
INDENTURE
DATED AS OF , 1998
------------------
SUBORDINATED DEBT SECURITIES
------------------
================================================================================
<PAGE> 2
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 Indenture Section
Act Section
<S> <C> <C>
ss.310 (a)(1)................................................................................ 6.9
(a)(2)................................................................................ 6.9
(a)(3)................................................................................ Not Applicable
(a)(4)................................................................................ Not Applicable
(b)................................................................................... 6.8; 6.10
ss.311 (a)................................................................................... 6.13
(b)................................................................................... 6.13
ss.312 (a)................................................................................... 7.1; 7.2
(b)................................................................................... 7.2
(c)................................................................................... 7.2
ss.313 (a)................................................................................... 7.3
(b)................................................................................... 7.3
(c)................................................................................... 7.3
(d)................................................................................... 7.3
ss.314 (a)................................................................................... 7.4
(a)(4)................................................................................ 1.4; 10.4
(b)................................................................................... Not Applicable
(c)(1)................................................................................ 1.1
(c)(2)................................................................................ 1.1; 1.2
(c)(3)................................................................................ Not Applicable
(d)................................................................................... Not Applicable
(e)................................................................................... 1.2
ss.315 (a)................................................................................... 6.1
(b)................................................................................... 6.2
(c)................................................................................... 6.1
(d)................................................................................... 6.1
(e)................................................................................... 5.14
ss.316 (a)................................................................................... 1.1
(a)(1)(A)............................................................................. 5.2; 5.12
(a)(1)(B)............................................................................. 5.13
(a)(2)................................................................................ Not Applicable
(b)................................................................................... 5.8
(c)................................................................................... 1.4
ss.317 (a)(1)................................................................................ 5.3
(a)(2)................................................................................ 5.4
(b)................................................................................... 10.3
ss.318 (a)................................................................................... 1.7
</TABLE>
- -------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
<S> <C> <C>
SECTION 1.1 Definitions..................................................................................1
SECTION 1.2 Compliance Certificates and Opinions.........................................................8
SECTION 1.3 Form of Documents Delivered to Trustee.......................................................8
SECTION 1.4 Acts of Holders; Record Dates................................................................9
SECTION 1.5 Notices, Etc., to Trustee and Company.......................................................10
SECTION 1.6 Notice to Holders; Waiver...................................................................10
SECTION 1.7 Conflict with Trust Indenture Act...........................................................11
SECTION 1.8 Effect of Headings and Table of Contents....................................................11
SECTION 1.9 Successors and Assigns......................................................................11
SECTION 1.10 Separability Clause.........................................................................11
SECTION 1.11 Benefits of Indenture.......................................................................12
SECTION 1.12 Governing Law...............................................................................12
SECTION 1.13 Legal Holidays..............................................................................12
SECTION 1.14 Language of Notices, Etc....................................................................12
SECTION 1.15 Incorporators, Stockholders, Officers and Directors of the Company
Exempt from Individual Liability............................................................12
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.............................................................................13
SECTION 2.2 Form of Face of Security....................................................................13
SECTION 2.3 Form of Reverse of Security.................................................................16
SECTION 2.4 Global Securities...........................................................................21
SECTION 2.5 Form of Trustee's Certificate and Authorization.............................................22
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series........................................................22
SECTION 3.2 Denominations...............................................................................25
SECTION 3.3 Execution, Authentication, Delivery and Dating..............................................25
SECTION 3.4 Temporary Securities........................................................................27
</TABLE>
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 3.5 Registration, Registration of Transfer and Exchange.........................................27
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities............................................29
SECTION 3.7 Payment of Interest; Interest Rights Preserved..............................................30
SECTION 3.8 Persons Deemed Owners.......................................................................31
SECTION 3.9 Cancellation................................................................................31
SECTION 3.10 Computation of Interest.....................................................................32
SECTION 3.11 CUSIP Numbers...............................................................................32
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.....................................................32
SECTION 4.2 Application of Trust Money..................................................................33
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default...........................................................................34
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment..........................................35
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.............................36
SECTION 5.4 Trustee May File Proofs of Claim............................................................36
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities.................................37
SECTION 5.6 Application of Money Collected..............................................................37
SECTION 5.7 Limitation on Suits.........................................................................37
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium and
Interest....................................................................................38
SECTION 5.9 Restoration of Rights and Remedies..........................................................38
SECTION 5.10 Rights and Remedies Cumulative..............................................................39
SECTION 5.11 Delay or Omission Not Waiver................................................................39
SECTION 5.12 Control by Holders..........................................................................39
SECTION 5.13 Waiver of Past Defaults.....................................................................39
SECTION 5.14 Undertaking for Costs.......................................................................40
SECTION 5.15 Waiver of Usury, Stay or Extension Laws.....................................................40
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.........................................................40
SECTION 6.2 Notice of Defaults..........................................................................41
SECTION 6.3 Certain Rights of Trustee...................................................................41
</TABLE>
ii
<PAGE> 5
<TABLE>
<S> <C> <C>
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities......................................42
SECTION 6.5 May Hold Securities.........................................................................42
SECTION 6.6 Money Held in Trust.........................................................................42
SECTION 6.7 Compensation and Reimbursement..............................................................43
SECTION 6.8 Disqualification; Conflicting Interests.....................................................43
SECTION 6.9 Corporate Trustee Required; Eligibility.....................................................44
SECTION 6.10 Resignation and Removal; Appointment of Successor...........................................44
SECTION 6.11 Acceptance of Appointment by Successor......................................................45
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business.................................46
SECTION 6.13 Preferential Collection of Claims Against Company...........................................47
SECTION 6.14 Appointment of Authenticating Agent.........................................................47
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders...................................49
SECTION 7.2 Preservation of Information; Communications to Holders......................................49
SECTION 7.3 Reports by Trustee..........................................................................49
SECTION 7.4 Reports by Company..........................................................................50
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE
SECTION 8.1 Company May Consolidate, Etc, Only on Certain Terms.........................................50
SECTION 8.2 Successor Substituted.......................................................................51
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders..........................................51
SECTION 9.2 Supplemental Indentures with Consent of Holders.............................................52
SECTION 9.3 Execution of Supplemental Indentures........................................................53
SECTION 9.4 Effect of Supplemental Indentures...........................................................54
SECTION 9.5 Conformity with Trust Indenture Act.........................................................54
SECTION 9.6 Reference in Securities to Supplemental Indentures..........................................54
</TABLE>
iii
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<TABLE>
ARTICLE X
COVENANTS
<S> <C> <C>
SECTION 10.1 Payment of Principal, Premium and Interest..................................................54
SECTION 10.2 Maintenance of Office or Agency.............................................................54
SECTION 10.3 Money for Securities Payments to Be Held in Trust...........................................55
SECTION 10.4 Statement by Officers as to Default.........................................................56
SECTION 10.5 Existence...................................................................................56
SECTION 10.6 Waiver of Certain Covenants.................................................................56
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article....................................................................57
SECTION 11.2 Election to Redeem; Notice to Trustee.......................................................57
SECTION 11.3 Selection by Trustee of Securities to Be Redeemed...........................................57
SECTION 11.4 Notice of Redemption........................................................................58
SECTION 11.5 Deposit of Redemption Price.................................................................59
SECTION 11.6 Securities Payable on Redemption Date.......................................................59
SECTION 11.7 Securities Redeemed in Part.................................................................59
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article....................................................................60
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities.......................................60
SECTION 12.3 Redemption of Securities for Sinking Fund...................................................60
ARTICLE XIII
DEFEASANCE
SECTION 13.1 Applicability of Article....................................................................61
SECTION 13.2 Legal Defeasance............................................................................61
SECTION 13.3 Covenant Defeasance.........................................................................62
SECTION 13.4 Application by Trustee of Funds Deposited for Payment of Securities.........................63
SECTION 13.5 Repayment to Company........................................................................64
</TABLE>
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<TABLE>
ARTICLE XIV
SUBORDINATION OF SECURITIES
<S> <C> <C>
SECTION 14.1 Agreement to Subordinate....................................................................64
SECTION 14.2 Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities...................................................................64
SECTION 14.3 No Payment on Securities in Event of Default on Senior Debt.................................66
SECTION 14.4 Payments on Securities Permitted............................................................66
SECTION 14.5 Authorization of Holders of Securities to Trustee to Effect
Subordination...............................................................................66
SECTION 14.6 Notices to Trustee..........................................................................67
SECTION 14.7 Trustee as Holder of Senior Debt............................................................67
SECTION 14.8 Modification of Terms of Senior Debt........................................................68
</TABLE>
v
<PAGE> 8
INDENTURE dated as of December __, 1997, 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, 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 I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) 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;
(c) 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
<PAGE> 9
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States at the date of such
computation;
(d) 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
(e) 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 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 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
3.1 with respect to any series of Securities, each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
2
<PAGE> 10
institutions in that Place of Payment or other location are authorized or
obligated by law, executive order or regulation to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, any of its Vice Presidents or any other
authorized officer of the Company or a person duly authorized by any of them,
and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which at the date hereof is _______________, New York, NY
__________.
"corporation" includes corporations, associations, partnerships,
limited liability companies, joint-stock companies and business trusts.
"covenant defeasance" has the meaning specified in Section 13.3.
"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 3.7.
"defeasance" has the meaning specified in Section 13.2.
"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
3
<PAGE> 11
is designated to act as Depositary for such Securities as contemplated by
Section 3.1, 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 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"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 3.1.
"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 5.1(3).
4
<PAGE> 12
"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 10.4 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 5.2.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(b) 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;
(c) Securities which have been paid pursuant to Section 3.6 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
(d) Securities, except to the extent provided in Sections 13.2 and
13.3, 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 5.2, (B) the principal amount
of a Security denominated in one or more currencies or currency units other
than U.S. dollars shall be the U.S. dollar equivalent of such currencies or
currency units, determined in the manner provided as contemplated by Section
3.1 on the date of
5
<PAGE> 13
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 he 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 3.1 with respect thereto, are to be determined by the Company upon the
issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
other entity, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means, unless otherwise specifically provided for with respect to such
series as contemplated by Section 3.1, 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 10.2, the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Section 3.1.
"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 3.6 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.
"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.
6
<PAGE> 14
"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 3.1.
"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 3.5.
"Senior Debt" means any Debt of the Company, except for such Debt that
is by its terms subordinated to or pari passu with the Securities.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as otherwise
provided in Section 9.5, 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,
7
<PAGE> 15
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 1.2 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 10.4) shall include:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) 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;
(c) 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
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 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
8
<PAGE> 16
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 1.4 Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed (either physically or by means of a
facsimile or an electronic transmission, provided that such electronic
transmission is transmitted through the facilities of a Depositary) by such
Holders in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered (either physically or by means of a
facsimile or an electronic transmission, provided that such electronic
transmission is transmitted through the facilities of a Depositary) to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 3.15 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.
9
<PAGE> 17
Any request, demand, authorization, direction, notice, consent, waiver
or other action to 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 1.5 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,
(a) 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
(b) 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 El Paso Energy Building, 1001 Louisiana, Houston, Texas
77002, to the attention of the Corporate Secretary, or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.6 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
10
<PAGE> 18
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice mailed to
a Holder in the manner herein prescribed shall be conclusively deemed to have
been received by such Holder, whether or not such Holder actually receives such
notice.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 1.7 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 1.8 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 1.9 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 1.10 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.
11
<PAGE> 19
SECTION 1.11 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 1.12 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 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 1.14 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 1.15 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> 20
ARTICLE II
SECURITY FORMS
SECTION 2.1 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 3.3 for the authentication and delivery of such Securities.
SECTION 2.2 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 2.4 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY). ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
EL PASO NATURAL GAS COMPANY
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<PAGE> 21
[TITLE OF SECURITY]
NO. U.S.$_________
[CUSIP NO._________]
EL PASO NATURAL GAS COMPANY, a corporation duly incorporated and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _____________, or registered assigns,
the principal sum of __________ United States Dollars on _______________ [if
the Security is to bear interest prior to Maturity, insert--, and to pay
interest thereon from ______________________, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semiannually
on ___________________ and _________________ in each year, commencing
____________________, at the rate of _______% per annum, until the principal
hereof is paid or made available for payment [if applicable, insert--, and at
the rate of _____% per annum on any overdue principal and premium and on any
overdue installment of interest]. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the ______________ or
_________________ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice of which shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in such Indenture].
[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
14
<PAGE> 22
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [state other currency].]
[If a Definitive Security, insert -- Payment of the principal of [(and
premium, if any)) and [if applicable, insert -- any such] interest on this
Security will be made at the office or agency of the Company maintained for
that purpose in ____________________, [in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts] [state other currency] [or subject to any laws or
regulations applicable thereto and to the right of the Company (as provided in
the Indenture) to rescind the designation of any such Paying Agent, at the
[main] offices of _________________ in __________________ and ______________ in
__________________, or at such other offices or agencies as the Company may
designate, by [United States Dollar] [state other currency] check drawn on, or
transfer to a [United States Dollar] account maintained by the payee with, a
bank in The City of New York [______________] (so long as the applicable Paying
Agent has received proper transfer instructions in writing at least [_____]
days prior to the payment date)] [if applicable, insert--: provided, however,
that payment of interest may be made at the option of the Company by [United
States Dollar] [state other currency] check mailed to the addresses of the
Persons entitled thereto as such addresses shall appear in the Security
Register] [or by transfer to a [United States Dollar] [state other currency]
account maintained by the payee with a bank in The City of New York [state
other Place of Payment] (so long as the applicable Paying Agent has received
proper transfer instructions in writing by the Record Date prior to the
applicable Interest Payment Date)].]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
EL PASO NATURAL GAS COMPANY
By:
--------------------------------
[Title]
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<PAGE> 23
SECTION 2.3 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 November 13, 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
he 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,
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
---- ---------- ---- -----------
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.]
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<PAGE> 24
[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>
REDEMPTION-PRICE-FOR-REDEMPTION REDEMPTION-PRICE-FOR-REDEMPTION
THROUGH OPERATION OF THE SINKING OTHERWISE THAN THROUGH OPERATION OF
YEAR FUND THE SINKING FUND
---- -------------------------------- -----------------------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ______% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert--The sinking fund for this series provides for
the redemption on ___________ in each year beginning with the year ____________
and ending with the year ______________ of [if applicable, -- not less than
$_______ ("mandatory sinking fund") and not more than] $_______ aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through [if
applicable,--mandatory] sinking fund payments may be credited against
subsequent [if applicable,--mandatory] sinking fund payments otherwise required
to be made [if applicable,--in the inverse order in which they become due].)
[If the Security is subject to redemption in part of any kind,
insert--In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
[If applicable, insert--The Securities of this series are not
redeemable prior to Stated Maturity.]
17
<PAGE> 25
[If the Security is not an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security, insert--If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to--insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and
payable, and (ii) of interest on any overdue principal and overdue interest,
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series to be affected (voting as one class). The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all affected series
(voting as one class), on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture. The Indenture permits, with certain exceptions as therein provided,
the Holders of a majority in principal amount of Securities of any series then
Outstanding to waive past defaults under the Indenture with respect to such
series and their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect
to the Securities of this series, the Holders of not less than 25% in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity and
the Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or [any
premium or] interest hereon on or after the respective due dates expressed
herein.
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<PAGE> 26
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.
The holders of beneficial interests in this Global Security will not
be entitled to receive physical delivery of Definitive Securities except as
described in the Indenture and will not be considered the Holders thereof for
any purpose under the Indenture.]
[If a Definitive Security, insert--As provided in the Indenture and
subject to certain limitations therein set forth, the transfer of this Security
is registerable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in [if
applicable, insert--any place where the principal of and any premium and
interest on this Security are payable] [if applicable, insert --The City of New
York[, or, subject to any laws or regulations applicable thereto and to the
right of the Company (limited as provided in the Indenture) to rescind the
designation of any such transfer agent, at the [main] offices of ____________
in ____________ and ____________ in ________________ or at such other offices
or agencies as the Company may designate]], duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.]
The Securities of this series are issuable only in registered form
without coupons in denominations of U.S.$________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security is subordinated in right of payment to Senior Debt, to
the extent provided in the Indenture.
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<PAGE> 27
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.
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
20
<PAGE> 28
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.]
SECTION 2.4 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 3.1,
then, notwithstanding Clause (i) of Section 3.1 and the provisions of Section
3.2, 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 3.3, 3.4 and 3.5, 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 1.2 and need not be
accompanied by an Opinion of Counsel).
The provisions of the last sentence of Section 3.3 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
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<PAGE> 29
with Section 1.2 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 3.3.
SECTION 2.5 Form of Trustee's Certificate and Authorization.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
As Trustee
By:
------------------------------
Authorized Officer
ARTICLE III
THE SECURITIES
SECTION 3.1 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 3.3,
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,
(a) the title of the Securities of the series (which
shall distinguish the Securities of the series from Securities of any other
series);
(b) 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 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any
Securities which, pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder);
22
<PAGE> 30
(c) 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;
(d) the date or dates on which the principal of the
Securities of the series is payable or the method of determination thereof;
(e) 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 Payment Date on which any
such interest shall be payable on any Interest Payment Date;
(f) the place or places where, subject to the provisions of
Section 10.2, 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;
(g) 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;
(h) 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;
(i) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series shall be
issuable;
(j) 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;
(k) 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 10.1;
23
<PAGE> 31
(l) 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;
(m) 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;
(n) the right, if any, of the Company to defer payments of
interest by extending the interest payment periods and specify the duration of
such extension, the Interest Payment Dates on which such interest shall be
payable and whether and under what circumstances additional interest on amounts
deferred shall be payable;
(o) 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 5.2 or
the method of determination thereof;
(p) 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 3.5 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;
(q) any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.1 or the covenants of the Company set
forth in Article X pertaining to the Securities of the series;
(r) if other than as provided in Sections 13.2 and 13.3, the
means of defeasance or covenant defeasance as may be specified for the
Securities of the series;
(s) if other than the Trustee, the identity of the Security
Registrar and any Paying Agent; and
(t) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1(d)).
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
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(subject to Section 3.3) set forth, or determined in the manner provided, in
the Officer's Certificate referred to above or in any such indenture
supplemental hereto.
All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent
of the Holders, for increases in the aggregate principal amount of such series
of Securities and issuances of additional Securities of such series or for the
establishment of additional terms with respect to the Securities of such
series.
If any of the terms of the series are established by action taken by
or pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by an authorized officer or other authorized person
on behalf of the Company and delivered to the Trustee at or prior to the
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 3.2 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 3.1. 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 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its Chief Financial
Officer, its President or any Vice President and need not be attested. The
signature of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities; provided, however, that in the case of Securities offered in a
Periodic Offering, the
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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 2.1 and 3.1, 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 6.1) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form or forms of such Securities have been
established by or pursuant to Board Resolution as permitted by Section 2.1,
that such form or forms have been established in conformity with the provisions
of this Indenture;
(b) if the terms of such Securities have been, or in the case
of Securities of a series offered in a Periodic Offering, will be, established
by or pursuant to a Board Resolution as permitted by Section 3.1, 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
(c) 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 3.1 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 3.1 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
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and the legality, validity, binding effect and enforceability thereof, upon the
Opinion of Counsel and the other documents delivered pursuant to Sections 2.1
and 3.1 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 ecurity 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 3.9 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 3.4 Temporary Securities.
Pending the preparation of Definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the Definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause Definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of Definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for Definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company maintained pursuant to Section
10.2 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 3.5 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
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registration of Securities and of transfer of Securities. The Company will
prior to the issuance of any Securities hereunder, appoint the Trustee as the
initial "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided and its corporate trust office
which, at the date hereof, is located at 450 West 33rd Street, New York, New
York 10001 as the initial office or agency in The City of New York where the
Security Register will be maintained. The Company may at any time replace such
Security Registrar, change such office or agency or act as its own Security
Registrar. The Company will give prompt written notice to the Trustee of any
change of the Security Registrar or of the location of such office or agency.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company maintained pursuant to Section
10.2 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.
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 3.4, 9.6 or 11.7 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
11.3 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.
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Notwithstanding any other provision in this Indenture and except as
otherwise specified as contemplated by Section 3.1, no Global Security may be
transferred to, or registered or exchanged for Securities registered in the
name of, any Person other than the Depositary for such Global Security or any
nominee thereof, and no such transfer may be registered, except as provided in
this paragraph. Every Security authenticated and delivered upon registration or
transfer of, or in exchange for or in lieu of, a Global Security shall be a
Global Security, except as provided in this paragraph. If (1) (A) the
Depositary for a Global Security notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Security or ceases to be a
clearing agency registered under the Exchange Act, and (B) a successor
Depositary is not appointed by the Company within 90 days, or (2) the Company
determines in its sole discretion that Securities of a series issued in global
form shall no longer be represented by a Global Security, then such Global
Security may be exchanged by such Depositary for Definitive Securities of the
same series, of any authorized denomination and of a like aggregate principal
amount and tenor, registered in the names of, and the transfer of such Global
Security or portion thereof may be registered to, such Persons as such
Depositary shall direct.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, together
with, in proper cases, such security or indemnity as may be required by the
Company or the Trustee to save each of them and any agent of either of them
harmless, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
exchange for any mutilated Security or in lieu of any destroyed, lost or stolen
Security shall constitute an original
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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 3.7 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.1 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 (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Security of
such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close
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of business on such Special Record Date and shall no longer be payable pursuant
to the following Clause (b).
(b) 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 3.5,
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 3.8 Persons Deemed Owners.
Except as otherwise provided as contemplated by Section 3.1 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 3.5 and 3.7) 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 3.9 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 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
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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 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 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 3.11 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (in
addition to the other identification numbers printed on the Securities), and,
if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such "CUSIP" numbers either
as printed on the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Securities, and any such redemption shall not be affected by any defect in
or omission of such "CUSIP" numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 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
(a) either
(i) all such Securities theretofore authenticated
and delivered (other than (1) such Securities which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.6, and (2) 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 10.3) have been
delivered to the Trustee for cancellation; or
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(ii) all such Securities not theretofore delivered to
the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their
Stated Maturity within one year, or
(C) 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 (1), (2) or (3) 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;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to such Securities; and
(c) 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 6.7, the obligations of the Trustee to any Authenticating
Agent under Section 6.14 and the right of the Trustee to resign under Section
6.10 shall survive, and (y) if money shall have been deposited with the Trustee
pursuant to subclause (ii) of Clause (a) of this Section, the obligations of
the Company and/or the Trustee under Sections 4.2, 6.6, 7.1 and 10.2 and the
last paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium
and interest for whose payment such money has been deposited with the Trustee.
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ARTICLE V
REMEDIES
SECTION 5.1 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):
(a) 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 (whether or not such payment is prohibited by the
provisions of Article Fourteen hereof); or
(b) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity (whether or not such
payment is prohibited by the provisions of Article Fourteen hereof); or
(c) 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
(d) 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
(e) 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
(f) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
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SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(a) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(i) all overdue interest on all Securities of that
series.
(ii) 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.
(iii) 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
(iv) 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
(b) all Events of Default with respect to Securities of that
series, other than the nonpayment 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 5.13.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
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SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(a) 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 (whether or not such payment is prohibited by the
provisions of Article Fourteen hereof), or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof (whether or not such
payment is prohibited by the provisions of Article Fourteen hereof),
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 falls to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.4 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
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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 6.7.
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 be a member of a creditors' or
other similar committee.
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.6 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
6.7;
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 5.7 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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(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of that
series;
(b) 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;
(c) 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;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) 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 5.8 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
3.5 and 3.7) 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 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
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SECTION 5.10 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 3.6, 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 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12 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
(a) such direction shall not be in conflict with any rule
of law or with this Indenture;
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction; and
(c) subject to the provisions of Section 6.1, 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 5.13 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
(a) a continuing default in the payment of the principal of
or any premium or interest on any Security of such series, or
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(b) a default in respect of a covenant or provision hereof
which under Article IX 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 5.14 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 5.15 Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
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SECTION 6.2 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 5.1(c) 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 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) 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;
(b) 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 3.3, which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officer's Certificate;
(d) 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;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
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(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee 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 6.4 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 6.5 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 6.8 and 6.13, 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 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
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SECTION 6.7 Compensation and Reimbursement.
The Company agrees:
(a) 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);
(b) 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
(c) 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 5.1(d) or Section 5.1(e), 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 6.8 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
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SECTION 6.9 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 6.10 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 6.11.
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 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(a) the Trustee shall fall to comply with Section 6.8 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
(b) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company or by
any such Holder, or
(c) 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,
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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 6.11. 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 6.11, 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 6.11, 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 1.6.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 6.11 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
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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 6.12 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
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filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 6.13 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 6.14 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 3.6, 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.
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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 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 6.7.
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.
[ ],
As Trustee
By:
-------------------------------
As Authenticating Agent
By:
-------------------------------
Authorized Officer
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) 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
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to
the time such list is furnished;
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 7.2 Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 3.12 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 7.3 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, 1998.
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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 7.4 Reports by Company.
The Company shall:
(a) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such portions
of any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the 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;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(c) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and (2)
of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE
SECTION 8.1 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:
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(a) (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 or become a co-obligor jointly and severally with respect to,
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;
(b) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(c) 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 8.2 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 8.1, 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 hereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
Notwithstanding the foregoing, the predecessor Person may elect, at its option,
not to be so relieved of such obligations and covenants, provided that the
predecessor Person and the successor Person shall agree, pursuant to the
indenture supplemental hereto provided for in Section 8.1, to be co-obligors
jointly and severally with respect to all such obligations and covenants.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 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:
(a) to secure the Securities; or
(b) to evidence the succession of another Person to the
Company and the assumption by such successor of the covenants of the Company
herein and in the Securities; or
(c) to evidence another Person's becoming a co-obligor with
respect to the covenants of the Company herein and in the Securities; or
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(d) 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
(e) 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
(f) to establish the form or terms of securities of any series
as permitted by Sections 2.1 and 3.1; or
(g) 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 (f) shall not adversely
affect the interests of the Holders of Securities of any series in any material
respect; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee (including as a co-obligor) 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 6.11; or
(i) 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 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series affected by such
supplemental indenture (voting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Securities affected thereby,
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(a) 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
(b) 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
(c) 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 10.2 for such series, or
(d) modify any of the provisions of this Section, Section
5.13 or Section 10.6, 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 6.11 and 9.1(g).
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 9.3 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 6.1) 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.
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SECTION 9.4 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 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust indenture Act as then in effect.
SECTION 9.6 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1 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 10.2 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
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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 3.1, 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 10.3 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paving Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) hold all sums held by it for
the payment of the principal of (and premium, if any) or interest, if any, on
Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided; (2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest, if any, on the
Securities of that series; and (3) during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
held in trust by such Paying Agent for payment in respect of the Securities of
that series.
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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 10.4 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 10.5 Existence.
Subject to Article Eight, the Company will do or cause to be done all
the things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if it shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company.
SECTION 10.6 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 10.5, 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
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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.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 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 3.1 for Securities of any
series) in accordance with this Article.
SECTION 11.2 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 11.3 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
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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 11.4 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:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any series
and of a specified tenor are to he redeemed, the identification (and, in the
case of partial redemption of any Securities, the principal amounts) of the
particular Securities to be redeemed,
(d) 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,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(f) 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.
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SECTION 11.5 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 10.3) 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 11.6 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 3.1, 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 3.7.
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 11.7 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 XII
SINKING FUNDS
SECTION 12.1 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 3.1 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 12.2. 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 12.2 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 12.3 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 12.2 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 11.3 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 11.4. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 11.6 and 11.7.
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ARTICLE XIII
DEFEASANCE
SECTION 13.1 Applicability of Article.
The provisions of this Article shall be applicable to each series of
Securities except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
SECTION 13.2 Legal Defeasance.
In addition to discharge of the Indenture pursuant to Section 4.1, 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 (a) below, and the provisions of this Indenture
with respect to the Securities of such series shall no longer be in effect
(except as to (1) rights of registration of transfer and exchange of Securities
of such series and the Company's right of optional redemption, if any, (2)
substitution of mutilated, destroyed, lost or stolen Securities, (3) 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, (4) the rights,
obligations, duties and immunities of the Trustee hereunder, (5) 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 (6) the obligations of the Company under Section 10.2), 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"):
(a) 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 (c) 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;
(b) 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
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<PAGE> 69
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;
(c) 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;
(d) 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
(e) 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
13.4 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 13.3 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 (a) below from its
obligations under Sections 7.4., 8.1 and 10.5 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 5.1, 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 13.3:
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<PAGE> 70
(a) 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 (b) 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;
(b) 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;
(c) 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;
(d) The Company shall have delivered to the Trustee an
Opinion of Counsel which shall confirm that the holders of the Securities of
such series will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and covenant defeasance and will be
subject to federal income tax on the same amount and in the same manner and at
the same time as would have been the case if such deposit and covenant
defeasance had not occurred; and
(e) 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 13.4 Application by Trustee of Funds Deposited for Payment of
Securities.
Subject to the provisions of the last paragraph of Section 10.3, all
moneys or U.S. Government Obligations deposited with the Trustee pursuant to
Section 13.2 are 13.3 (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 13.2 and 13.3, the Trustee promptly shall
pay to the Company upon request any excess moneys held by them at any time.
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<PAGE> 71
SECTION 13.5 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 13.2 or 13.3.
The provisions of the last paragraph of Section 10.3 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 13.2 or 13.3.
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 14.1 Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of Securities, by his acceptance thereof, likewise
covenants and agrees, that the payment of the principal of (and premium, if
any), interest on each and all of the Securities is hereby expressly
subordinated, to the extent and in the manner hereinafter set forth, in right
of payment to the prior payment in full of all Senior Debt.
SECTION 14.2 Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities.
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company, whether in
bankruptcy, insolvency, reorganization or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Company or otherwise (subject to the power of a court of
competent jurisdiction to make other equitable provision reflecting the rights
conferred in this Indenture upon the Senior Debt and the holders thereof with
respect to the Securities and the Holders thereof by a lawful plan or
reorganization under applicable bankruptcy law),
(a) the holders of all Senior Debt shall be entitled to
receive payment in full of the principal thereof, premium, if any, interest,
and any interest thereon, due thereon before the Holders of the Securities are
entitled to receive any payment upon the principal, premium, interest of or on
the Securities or interest on overdue amounts thereof; and
(b) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article Fourteen shall be paid by the liquidating trustee
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<PAGE> 72
or agent or other person making such payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the
holders of Senior Debt or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments evidencing
any of such Senior Debt may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the principal of, premium, if
any, interest, and any interest thereon, on the Senior Debt held or represented
by each, to the extent necessary to make payment in full of all Senior Debt
remaining unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Senior Debt; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, shall be received by the Trustee or
the Holders of the Securities before all Senior Debt is paid in full, such
payment or distribution shall be paid over to the holders of such Senior Debt
or their representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior Debt
may have been issued, ratably as aforesaid, for application to the payment of
all Senior Debt remaining unpaid until all such Senior Debt shall have been
paid in full, after giving effect to any concurrent payment or distribution to
the holders of such Senior Debt.
Subject to the payment in full of all Senior Debt, the Holders of the
Securities shall be subrogated to the rights of the holders of Senior Debt to
receive payments or distributions of cash, property or securities of the
Company applicable to Senior Debt until the principal, premium, interest, and
any interest thereon, of or on the Securities shall be paid in full and no such
payments or distributions to the Holders of the Securities of cash, property or
securities otherwise distributable to the Senior Debt shall, as between the
Company, its creditors other than the holders of Senior Debt, and the Holders
of the Securities, be deemed to be a payment by the Company to or on account of
the Securities. It is understood that the provisions of this Article Fourteen
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Securities, on the one hand, and the holders of Senior Debt,
on the other hand. Nothing contained in this Article Fourteen or elsewhere in
this Indenture or in the Securities is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior Debt, and the
Holders of the Securities, the obligation of the Company, which is
unconditional and absolute, to pay to the Holders of the Securities the
principal, premium, interest, and any interest thereon, of or on the Securities
as and when the same shall become due and payable in accordance with their
terms, or to affect the relative rights of the Holders of the Securities and
creditors of the Company other than the holders of Senior Debt, nor shall
anything herein or in the Securities prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article Fourteen of the holders of Senior Debt in respect of cash, property or
securities of the Company received upon the exercise of any such remedy. Upon
any payment or distribution of assets of the Company referred to in this
Article Fourteen, the Trustee shall be entitled to conclusively rely upon a
certificate of the liquidating trustee or agent or other person making any
distribution to the Trustee for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of Senior Debt and
other indebtedness
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<PAGE> 73
of the Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon, and all other facts pertinent thereto or to this
Article Fourteen.
The Trustee, however, shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt. The Trustee shall not be liable to any such holder
if it shall pay over or distribute to or on behalf of Holders of Securities or
the Company moneys or assets to which any holder of Senior Debt shall be
entitled by virtue of this Article Fourteen. The rights and claims of the
Trustee under Section 6.7 shall not be subject to the provisions of this
Article Fourteen.
If the Trustee or any Holder of Securities does not file a proper
claim or proof of debt in the form required in any proceeding referred to above
prior to 30 days before the expiration of the time to file such claim in such
proceeding, then the holder of any Senior Debt is hereby authorized, and has
the right, to file an appropriate claim or claims for or on behalf of such
Holder of Securities.
SECTION 14.3 No Payment on Securities in Event of Default on Senior Debt.
No payment by the Company on account of principal, premium, interest
or Additional Amounts, and any interest thereon, of or on the Securities shall
be made unless full payment of amounts then due for principal, premium, if any,
sinking funds, and interest or Additional Amounts on Senior Debt has been made
or duly provided for in money or money's worth.
SECTION 14.4 Payments on Securities Permitted.
Nothing contained in this Indenture or in any of the Securities shall
(a) affect the obligation of the Company to make, or prevent the Company from
making, at any time except as provided in Sections 14.2 and 14.3, payments of
principal, premium, interest, and any interest thereon, of or on the Securities
or (b) prevent the application by the Trustee of any moneys deposited with it
hereunder to the payment of or on account of the principal, premium, interest
or Additional Amounts, and any interest thereon, of or on the Securities unless
the Trustee shall have received at its Corporate Trust Office written notice of
any event prohibiting the making of such payment Business Days prior to the
date fixed for such payment or prior to the execution of an instrument to
satisfy and discharge this Indenture based upon the deposit of funds under
Section 401(l)(B).
SECTION 14.5 Authorization of Holders of Securities to Trustee to Effect
Subordination.
Each Holder of Securities by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article
Fourteen and appoints the Trustee his attorney-in-fact for any and all such
purposes.
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<PAGE> 74
SECTION 14.6 Notices to Trustee.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee located at the Corporate Trust Office of the Trustee of any fact
known to the Company which would prevent the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provisions of this Indenture, neither the Trustee nor any
Paying Agent (other than the Company) shall be charged with knowledge of the
existence of any Senior Debt or of any event which would prohibit the making of
any payment of moneys to or by the Trustee or such Paying Agent, unless and
until the Trustee or such Paying Agent shall have received (in the case of the
Trustee, at its Corporate Trust Office) written notice thereof from the Company
or from the holder of any Senior Debt or from the trustee for any of together
with proof satisfactory to the Trustee of such holding of Senior Debt or of the
authority of such Trustee; provided, however, that if at least two Business
Days prior to the date upon which by the terms hereof any such moneys may
become payable for any purpose (including, without limitation, the payment of
the principal, premium, interest, of or on any Security, or any interest
thereon) or the date on which the Trustee shall execute an instrument
acknowledging satisfaction and discharge of this Indenture, the Trustee shall
not have received with respect to such moneys or the moneys deposited with it
as a condition to such satisfaction and discharge the notice provided for in
this Section 14.6, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such moneys and to apply the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary, which may be received
by it on or after such two Business Days prior to such date. The Trustee shall
be entitled to conclusively rely on the delivery to it of a written notice by a
person representing himself to be a holder of Senior Debt (or a trustee on
behalf of such holder) to establish that such a notice has been given by a
holder of Senior Debt or a trustee on behalf of any such holder. In the event
that the Trustee determines in good faith that further evidence is required
with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article Fourteen,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Fourteen and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 14.7 Trustee as Holder of Senior Debt.
The Trustee shall be entitled to all the rights set forth in this
Article Fourteen in respect of any Senior Debt at any time held by it to the
same extent as any other holder of Senior Debt and nothing in this Indenture
shall be construed to deprive the Trustee of any of its rights as such holder.
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SECTION 14.8 Modification of Terms of Senior Debt.
Any renewal or extension of the time of payment of any Senior Debt or
the exercise by the holders of Senior Debt of any of their rights under any
instrument creating or evidencing Senior Debt, including without limitation the
waiver of default thereunder, may be made or done all without notice to or
assent from Holders of the Securities or the Trustee.
No compromise, alteration, amendment, modification, extension, renewal
or other change of, or waiver, consent or other action in respect of, any
liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Debt is outstanding or of such Senior Debt, whether or not such release
is in accordance with the provisions of any applicable document, shall in any
way alter or affect any of the provisions of this Article Fourteen or of the
Securities relating to the subordination thereof.
------------------
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.
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<PAGE> 76
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: H. Brent Austin
Title: Executive Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK
By:
-------------------------------------
Name:
Title:
69
<PAGE> 1
EXHIBIT 4.3
CERTIFICATE OF TRUST
OF
EL PASO ENERGY CAPITAL TRUST I
This Certificate of Trust is being executed as of December 10, 1997 for
the purposes of organizing a business trust pursuant to the Delaware Business
Trust Act, 12 Del. C. Sections 3801 et seq. (the "Act").
The undersigned hereby certifies as follows:
1. Name. The name of the business trust is "El Paso Energy
Capital Trust I" (the "Trust").
2. Delaware Trustee. The name and business address of the
Delaware resident trustee of the Trust meeting the requirements of Section 3807
of the Act are as follows:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
3. Effectiveness. This Certificate of Trust shall be effective
immediately upon filing in the Office of the Secretary of State of the State of
Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have duly executed this Certificate of Trust as of the date and year
first above written.
/s/ H. BRENT AUSTIN
----------------------------
Name: H. Brent Austin
as Administrative Trustee
/s/ WAYNE ALLRED
----------------------------
Name: Wayne Allred
as Administrative Trustee
/s/ JEFFREY I. BEASON
----------------------------
Name: Jeffrey I. Beason
as Administrative Trustee
<PAGE> 2
CHASE MANHATTAN BANK DELAWARE
not in its individual capacity
but solely as a trustee of the
Trust
By: /s/ John J. Cashin
----------------------------
Name: John J. Cashin
Title: Vice-President
EL PASO NATURAL GAS COMPANY
as Sponsor
By: /s/ H. Brent Austin
----------------------------
Name: H. Brent Austin
Title: Executive Vice
President and Chief
Financial Officer
<PAGE> 1
EXHIBIT 4.4
DECLARATION OF TRUST
OF
EL PASO ENERGY CAPITAL TRUST I
THIS DECLARATION OF TRUST is made as of December 10, 1997, (this
"Declaration"), by and among El Paso Natural Gas Company, a Delaware
Corporation, as sponsor (the "Sponsor"), H. Brent Austin, Wayne Allred,
Jeffrey I. Beason and Chase Manhattan Bank Delaware, not in their individual
capacities but solely as trustees (the "Trustees"). The Sponsor and the
Trustees hereby agree as follows:
1. The trust created hereby shall be known as "El Paso Energy
Capital Trust I" (the "Trust"), in which name the Trustees or the Sponsor, to
the extent provided herein, may conduct the business of the Trust, make and
execute contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over
to the Trust the sum of $10. Such amount shall constitute the initial trust
estate. It is the intention of the parties hereto that the Trust created
hereby constitutes a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del C., Section 3801, et seq. (the "Business Trust
Act"), and that this document constitutes the governing instrument of the
Trust. The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in such form as the
Trustees may approve.
3. The Sponsor and the Trustees will enter into an amended and
restated Trust Agreement or Declaration satisfactory to each such party to
provide for the contemplated operation of the Trust created hereby and the
issuance of the Preferred Securities and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Trust
Agreement or Declaration, the Trustees shall not have any duty or obligation
hereunder or with respect of the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise. Notwithstanding the foregoing, the Trustees may take all actions
deemed proper as are necessary to effect the transactions contemplated herein.
4. The Sponsor is hereby authorized, in its sole discretion, (i)
to file with the Securities and Exchange Commission (the "Commission") and to
execute, in the case of the 1933 Act Registration Statement and 1934 Act
Registration Statement (as herein defined), on behalf of the Trust, (a) the
1933 Act Registration Statement, including pre-effective or post-effective
amendments to such Registration Statement, relating to the registration under
the Securities Act of 1993, as amended (the "1993 Act"), of the Preferred
Securities of the Trust, (b) any preliminary prospectus or prospectus or
supplement thereto relating to the Preferred Securities required to be filed
under the 1933 Act, and (c) if required, a Registration Statement on Form 8-A
or other appropriate form (the "1934 Act Registration Statement") (including
all pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under the Securities
<PAGE> 2
Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange
or any other exchange (collectively, the "Exchange") and execute on behalf of
the Trust a listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on the Exchange; (iii)
to file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process
and other papers and documents as shall be necessary or desirable to register
the Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable; (iv) to execute, deliver and perform on behalf of the Trust, an
underwriting agreement with the Sponsor and the underwriter or underwriters of
the Preferred Securities of the Trust; (v) to execute, deliver and perform a
depository agreement with the initial clearing agency, relating to the
Preferred Securities; and (vi) to apply for and obtain a tax identification
number for the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, PORTAL or state securities or
Blue Sky laws to be executed on behalf of the Trust by the Trustees, the
Trustees, in their capacities as trustees of the Trust, are hereby authorized
and directed to join in any such filing and to execute on behalf of the Trust
any and all of the foregoing, it being understood that H. Brent Austin, Wayne
Allred, Jeffrey I. Beason and Chase Manhattan Bank Delaware, in their capacity
as trustees of the Trust, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by the rules
and regulations of the Commissions, PORTAL or state securities or Blue Sky
laws. In connection with all of the foregoing, the Sponsor hereby constitutes
and appoints H. Brent Austin, as its true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution for the Sponsor or in
the Sponsor's name, place and stead, in any and all capacities, to sign any and
all amendments (including all pre-effective and post-effective amendments) to
the 1933 Act Registration Statement and any 1934 Act Registration Statement and
to file the same, with all exhibits thereto, and any other documents in
connection therewith, with the Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith, as fully to
all intents and purposes as the Sponsor might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
respective substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Declaration may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be four
(4) and thereafter the number of trustees of the Trust shall be such number as
shall be fixed from time to time by a written instrument signed by the Sponsor
which may increase or decrease the number of trustees of the Trust; provided,
however, that the number of trustees shall in no event be less than two (2);
provided, further, that to the extent required by the Business Trust Act, one
trustee of the Trust shall either be a natural person who is a resident of the
State of Delaware or if not a natural person, an entity which has its principal
place of business in the State of Delaware. Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any trustee of the Trust
at any time. Any trustee of the Trust may resign upon thirty (30) days' prior
notice to the Sponsor.
-2-
<PAGE> 3
7. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration to
be duly executed as of the day and year first above written.
By: /s/ H. BRENT AUSTIN
----------------------------------------
H. Brent Austin
as Administrative Trustee
By: /s/ WAYNE ALLRED
----------------------------------------
Wayne Allred
as Administrative Trustee
By: /s/ JEFFREY I. BEASON
---------------------------------------
Jeffrey I. Beason
as Administrative Trustee
CHASE MANHATTAN BANK DELAWARE, not in its
individual capacity but solely as a trustee
of the Trust
By: /s/ John J. Cashin
----------------------------------------
Name: John J. Cashin
Title: Vice-President
EL PASO NATURAL GAS COMPANY, as Sponsor
By: /s/ H. Brent Austin
----------------------------------------
Name: H. Brent Austin
Title: Executive Vice President and
Chief Financial Officer
-3-
<PAGE> 1
EXHIBIT 4.5
CERTIFICATE OF TRUST
OF
EL PASO ENERGY CAPITAL TRUST II
This Certificate of Trust is being executed as of December 10, 1997
for the purposes of organizing a business trust pursuant to the Delaware
Business Trust Act, 12 Del. C. Sections 3801 et seq. (the "Act") .
The undersigned hereby certifies as follows:
1. Name. The name of the business trust is "El Paso Energy Capital
Trust II" (the "Trust").
2. Delaware Trustee. The name and business address of the Delaware
resident trustee of the Trust meeting the requirements of Section 3807 of the
Act are as follows:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
3. Effectiveness. This Certificate of Trust shall be effective
immediately upon filing in the Office of the Secretary of State of the State of
Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have duly executed this Certificate of Trust as of the date and year
first above written.
/s/ H. BRENT AUSTIN
----------------------------------------
Name: H. Brent Austin
as Administrative Trustee
/s/ WAYNE ALLRED
----------------------------------------
Name: Wayne Allred
as Administrative Trustee
/s/ JEFFREY I. BEASON
----------------------------------------
Name: Jeffrey I. Beason
as Administrative Trustee
<PAGE> 2
CHASE MANHATTAN BANK DELAWARE
not in its individual capacity but
solely as a trustee of the Trust
By: /s/ John J. Cashin
-------------------------------------
Name: John J. Cashin
Title: Vice-President
EL PASO NATURAL GAS COMPANY
as Sponsor
By: /s/ H. Brent Austin
-------------------------------------
Name: H. Brent Austin
Title: Executive Vice President
and Chief Financial Officer
<PAGE> 1
EXHIBIT 4.6
DECLARATION OF TRUST
OF
EL PASO ENERGY CAPITAL TRUST II
THIS DECLARATION OF TRUST is made as of December 10, 1997, (this
"Declaration"), by and among El Paso Natural Gas Company, a Delaware
corporation, as sponsor (the "Sponsor"), H. Brent Austin, Wayne Allred, Jeffrey
I. Beason and Chase Manhattan Bank Delaware, not in their individual capacities
but solely as trustees (the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as "El Paso Energy
Capital Trust II" (the "Trust"), in which name the Trustees or the Sponsor, to
the extent provided herein, may conduct the business of the Trust, make and
execute contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. Such amount shall constitute the initial trust
estate.It is the intention of the parties hereto that the Trust created hereby
constitutes a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C., ss. 3801, et seq. (the "Business Trust Act"), and that this
document constitutes the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in such form as the Trustees may approve.
3. The Sponsor and the Trustees will enter into an amended and
restated Trust Agreement or Declaration satisfactory to each such party to
provide for the contemplated operation of the Trust created hereby and the
issuance of the Preferred Securities and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Trust
Agreement or Declaration, the Trustees shall not have any duty or obligation
hereunder or with respect of the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise. Notwithstanding the foregoing, the Trustees may take all actions
deemed proper as are necessary to effect the transactions contemplated herein.
4. The Sponsor is hereby authorized, in its sole discretion, (i) to
file with the Securities and Exchange Commission (the "Commission") and to
execute, in the case of the 1933 Act Registration Statement and 1934 Act
Registration Statement (as herein defined), on behalf of the Trust, (a) the
1933 Act Registration Statement, including pre-effective or post-effective
amendments to such Registration Statement, relating to the registration under
the Securities Act of 1993, as amended (the "1993 Act"), of the Preferred
Securities of the Trust, (b) any preliminary prospectus or prospectus or
supplement thereto relating to the Preferred Securities required to be filed
under the 1933 Act, and (c) if required, a Registration Statement on Form 8-A
or other appropriate form (the "1934 Act Registration Statement") (including
all pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under the Securities
<PAGE> 2
Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange
or any other exchange (collectively, the "Exchange") and execute on behalf of
the Trust a listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on the Exchange; (iii)
to file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process
and other papers and documents as shall be necessary or desirable to register
the Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable; (iv) to execute, deliver and perform on behalf of the Trust, an
underwriting agreement with the Sponsor and the underwriter or underwriters of
the Preferred Securities of the Trust; (v) to execute, deliver and perform a
depository agreement with the initial clearing agency, relating to the
Preferred Securities; and (vi) to apply for and obtain a tax identification
number for the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, PORTAL or state securities or
Blue Sky laws to be executed on behalf of the Trust by the Trustees, the
Trustees, in their capacities as trustees of the Trust, are hereby authorized
and directed to join in any such filing and to execute on behalf of the Trust
any and all of the foregoing, it being understood that H. Brent Austin, Wayne
Allred, Jeffrey I. Beason and Chase Manhattan Bank Delaware, in their capacity
as trustees of the Trust, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by the rules
and regulations of the Commissions, PORTAL or state securities or Blue Sky
laws. In connection with all of the foregoing, the Sponsor hereby constitutes
and appoints H. Brent Austin, as its true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution for the Sponsor or in
the Sponsor's name, place and stead, in any and all capacities, to sign any and
all amendments (including all pre-effective and post-effective amendments) to
the 1933 Act Registration Statement and any 1934 Act Registration Statement and
to file the same, with all exhibits thereto, and any other documents in
connection therewith, with the Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith, as fully to
all intents and purposes as the Sponsor might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
respective substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Declaration may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be four (4)
and thereafter the number of trustees of the Trust shall be such number as
shall be fixed from time to time by a written instrument signed by the Sponsor
which may increase or decrease the number of trustees of the Trust; provided,
however, that the number of trustees shall in no event be less than two (2);
provided, further, that to the extent required by the Business Trust Act, one
trustee of the Trust shall either be a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware. Subject to the foregoing,
the Sponsor is entitled to appoint or remove without cause any trustee of the
Trust at any time. Any trustee of the Trust may resign upon thirty (30) days'
prior notice to the Sponsor.
<PAGE> 3
7. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration to
be duly executed as of the day and year first above written.
By: /s/ H. BRENT AUSTIN
-------------------------------------
H. Brent Austin
as Administrative Trustee
By: /s/ WAYNE ALLRED
-------------------------------------
Wayne Allred
as Administrative Trustee
By: /s/ JEFFREY I. BEASON
-------------------------------------
Jeffrey I. Beason
as Administrative Trustee
CHASE MANHATTAN BANK DELAWARE, not
in its individual capacity but solely
as a trustee of the Trust
By: /s/ John J. Cashin
-------------------------------------
Name: John J. Cashin
Title: Vice-President
EL PASO NATURAL GAS COMPANY, as Sponsor
By: /s/ H. Brent Austin
-------------------------------------
Name: H. Brent Austin
Title: Executive Vice President
and Chief Financial Officer
<PAGE> 1
EXHIBIT 4.7
CERTIFICATE OF TRUST
OF
EL PASO ENERGY CAPITAL TRUST III
This Certificate of Trust is being executed as of December 10, 1997
for the purposes of organizing a business trust pursuant to the Delaware
Business Trust Act, 12 Del. C. Sections 3801 et seq. (the "Act") .
The undersigned hereby certifies as follows:
1. Name. The name of the business trust is "El Paso Energy
Capital Trust III" (the "Trust").
2. Delaware Trustee. The name and business address of the
Delaware resident trustee of the Trust meeting the requirements of Section 3807
of the Act are as follows:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
3. Effectiveness. This Certificate of Trust shall be effective
immediately upon filing in the Office of the Secretary of State of the State of
Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have duly executed this Certificate of Trust as of the date and year
first above written.
/s/ H. BRENT AUSTIN
------------------------------------
Name: H. Brent Austin
as Administrative Trustee
/s/ WAYNE ALLRED
------------------------------------
Name: Wayne Allred
as Administrative Trustee
/s/ JEFFREY I. BEASON
------------------------------------
Name: Jeffrey I. Beason
as Administrative Trustee
<PAGE> 2
CHASE MANHATTAN BANK DELAWARE
not in its individual capacity
but solely as a trustee of the
Trust
By: /s/ John J. Cashin
------------------------------------
Name: John J. Cashin
Title: Vice-President
EL PASO NATURAL GAS COMPANY as Sponsor
By: /s/ H. Brent Austin
------------------------------------
Name: H. Brent Austin
Title: Executive Vice President
and Chief Financial Officer
<PAGE> 1
EXHIBIT 4.8
DECLARATION OF TRUST
OF
EL PASO ENERGY CAPITAL TRUST III
THIS DECLARATION OF TRUST is made as of December 10, 1997, (this
"Declaration"), by and among El Paso Natural Gas Company, a Delaware
corporation, as sponsor (the "Sponsor"), H. Brent Austin, Wayne Allred, Jeffrey
I. Beason and Chase Manhattan Bank Delaware, not in their individual capacities
but solely as trustees (the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as "El Paso Energy
Capital Trust III" (the "Trust"), in which name the Trustees or the Sponsor, to
the extent provided herein, may conduct the business of the Trust, make and
execute contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. Such amount shall constitute the initial trust
estate. It is the intention of the parties hereto that the Trust created hereby
constitutes a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C., ss. 3801, et seq. (the "Business Trust Act"), and that this
document constitutes the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in such form as the Trustees may approve.
3. The Sponsor and the Trustees will enter into an amended and
restated Trust Agreement or Declaration satisfactory to each such party to
provide for the contemplated operation of the Trust created hereby and the
issuance of the Preferred Securities and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Trust
Agreement or Declaration, the Trustees shall not have any duty or obligation
hereunder or with respect of the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise. Notwithstanding the foregoing, the Trustees may take all actions
deemed proper as are necessary to effect the transactions contemplated herein.
4. The Sponsor is hereby authorized, in its sole discretion, (i) to
file with the Securities and Exchange Commission (the "Commission") and to
execute, in the case of the 1933 Act Registration Statement and 1934 Act
Registration Statement (as herein defined), on behalf of the Trust, (a) the
1933 Act Registration Statement, including pre-effective or post-effective
amendments to such Registration Statement, relating to the registration under
the Securities Act of 1993, as amended (the "1993 Act"), of the Preferred
Securities of the Trust, (b) any preliminary prospectus or prospectus or
supplement thereto relating to the Preferred Securities required to be filed
under the 1933 Act, and (c) if required, a Registration Statement on Form 8-A
or other appropriate form (the "1934 Act Registration Statement") (including
all pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under the Securities
<PAGE> 2
Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange
or any other exchange (collectively, the "Exchange") and execute on behalf of
the Trust a listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on the Exchange; (iii)
to file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process
and other papers and documents as shall be necessary or desirable to register
the Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable; (iv) to execute, deliver and perform on behalf of the Trust, an
underwriting agreement with the Sponsor and the underwriter or underwriters of
the Preferred Securities of the Trust; (v) to execute, deliver and perform a
depository agreement with the initial clearing agency, relating to the
Preferred Securities; and (vi) to apply for and obtain a tax identification
number for the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, PORTAL or state securities or
Blue Sky laws to be executed on behalf of the Trust by the Trustees, the
Trustees, in their capacities as trustees of the Trust, are hereby authorized
and directed to join in any such filing and to execute on behalf of the Trust
any and all of the foregoing, it being understood that H. Brent Austin, Wayne
Allred, Jeffrey I. Beason and Chase Manhattan Bank Delaware, in their capacity
as trustees of the Trust, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by the rules
and regulations of the Commissions, PORTAL or state securities or Blue Sky
laws. In connection with all of the foregoing, the Sponsor hereby constitutes
and appoints H. Brent Austin, as its true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution for the Sponsor or in
the Sponsor's name, place and stead, in any and all capacities, to sign any and
all amendments (including all pre-effective and post-effective amendments) to
the 1933 Act Registration Statement and any 1934 Act Registration Statement and
to file the same, with all exhibits thereto, and any other documents in
connection therewith, with the Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith, as fully to
all intents and purposes as the Sponsor might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
respective substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Declaration may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be four (4)
and thereafter the number of trustees of the Trust shall be such number as
shall be fixed from time to time by a written instrument signed by the Sponsor
which may increase or decrease the number of trustees of the Trust; provided,
however, that the number of trustees shall in no event be less than two (2);
provided, further, that to the extent required by the Business Trust Act, one
trustee of the Trust shall either be a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware. Subject to the foregoing,
the Sponsor is entitled to appoint or remove without cause any trustee of the
Trust at any time. Any trustee of the Trust may resign upon thirty (30) days'
prior notice to the Sponsor.
<PAGE> 3
7. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration to
be duly executed as of the day and year first above written.
By: /s/ H. BRENT AUSTIN
------------------------------------
H. Brent Austin
as Administrative Trustee
By: /s/ WAYNE ALLRED
------------------------------------
Wayne Allred
as Administrative Trustee
By: /s/ JEFFREY I. BEASON
------------------------------------
Jeffrey I. Beason
as Administrative Trustee
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but
solely as a trustee of the Trust
By: /s/ John J. Cashin
------------------------------------
Name: John J. Cashin
Title: Vice-President
EL PASO NATURAL GAS COMPANY, as Sponsor
By: /s/ H. Brent Austin
------------------------------------
Name: H. Brent Austin
Title: Executive Vice President
and Chief Financial Officer
<PAGE> 1
EXHIBIT 12.1
EL PASO ENERGY
RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED AND PREFERENCE STOCK DIVIDEND REQUIREMENTS
SEPTEMBER 30, 1997
<TABLE>
<CAPTION>
SEPTEMBER 30, 1997
------------------
<S> <C>
EARNINGS
INCOME FROM CONTINUING OPERATIONS 135
INCOME TAXES 96
MINORITY INTEREST 19
INCOME FROM CONTINUING OPERATIONS BEFORE INCOME TAXES ----------
AND MINORITY INTEREST 250
INTEREST AND DEBT EXPENSE 161 A
INTEREST COMPONENT OF RENT 6 B
----------
TOTAL EARNINGS AVAILABLE FOR FIXED CHARGES 417
==========
FIXED CHARGES
INTEREST AND DEBT EXPENSE 161 A
INTEREST COMPONENTS OF RENT 6 B
FIXED CHARGES EXCLUDING PREFERRED STOCK DIVIDEND ----------
REQUIREMENT 167
PREFERRED STOCK DIVIDEND REQUIREMENTS 19
TOTAL FIXED CHARGES ----------
186
==========
RATIO OF EARNINGS TO FIXED CHARGES 2.24
A INTEREST AND DEBT EXPENSE PER I/S 178
CAPITALIZED INTEREST 1
LESS TGP REGULATORY & OTHER NON DEBT RELATED INT (10)
LESS EPNG RATE REFUND INTEREST EXP (8)
--------
161
B RENT EXPENSE:
TGP -
EPGTR 9
EPEM 1
EPFS 7
EPEIC -
--------
TOTAL 17
INDUSTRY FACTOR USED TO CALCULATE INTEREST COMPONENT 3
--------
INTEREST COMPONENT OF RENT EXPENSE 6
</TABLE>
PREPARED BY: MBS
REVIEWED BY: CR
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
El Paso Natural Gas Company on Form S-3 of our report dated February 28, 1997,
on our audits of the consolidated financial statements and financial statement
schedule of El Paso Natural Gas Company as of December 31, 1996 and 1995, and
for the years ended December 31, 1996, 1995, and 1994, included in its Annual
Report on Form 10-K. We also consent to the reference to our firm under the
caption "Experts."
/s/ COOPERS & LYBRAND L.L.P.
Houston, Texas
December 18, 1997
<PAGE> 1
EXHIBIT 25.1
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
---------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ____
---------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------
EL PASO NATURAL GAS COMPANY
(Exact name of obligor as specified in its charter)
DELAWARE 74-0608280
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ONE PAUL KAYSER CENTER
100 NORTH STANTON STREET
EL PASO, TEXAS 79901
(Address of principal executive offices) (Zip Code)
-------------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
-------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see
Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to
Commence Business (see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by reference. On
July 14, 1996, in connection with the merger of Chemical Bank and The Chase
Manhattan Bank (National Association), Chemical Bank, the surviving
corporation, was renamed The Chase Manhattan Bank.)
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which
is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank.)
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority. (On July 14, 1996, in connection with the merger of Chemical Bank
and The Chase Manhattan Bank (National Association), Chemical Bank, the
surviving corporation, was renamed The Chase Manhattan Bank.)
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 9TH day
of DECEMBER, 1997.
THE CHASE MANHATTAN BANK
By /s/ R. Lorenzen
----------------------------
R. Lorenzen
Senior Trust Officer
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1997, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin .......................................... $ 11,760
Interest-bearing balances .................................. 4,343
Securities:
Held to maturity securities ..................................... 2,704
Available for sale securities ................................... 37,885
Federal funds sold and securities purchased under
agreements to resell ....................................... 27,358
Loans and lease financing receivables:
Loans and leases, net of unearned income ........... $127,370
Less: Allowance for loan and lease losses .......... 2,760
Less: Allocated transfer risk reserve .............. 13
--------
Loans and leases, net of unearned income,
allowance, and reserve ..................................... 124,597
Trading Assets .................................................. 64,630
Premises and fixed assets (including capitalized
leases) .................................................... 2,925
Other real estate owned ......................................... 286
Investments in unconsolidated subsidiaries and
associated companies ....................................... 232
Customers' liability to this bank on acceptances
outstanding ................................................ 2,212
Intangible assets ............................................... 1,480
Other assets .................................................... 11,117
--------
TOTAL ASSETS .................................................... $291,529
========
</TABLE>
- 4 -
<PAGE> 5
<TABLE>
LIABILITIES
<S> <C>
Deposits
In domestic offices ................................................ $ 86,574
Noninterest-bearing ..................................... $31,818
Interest-bearing ........................................ 54,756
-------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's .......................................................... 69,887
Noninterest-bearing ..................................... $ 3,777
Interest-bearing ........................................ 66,110
Federal funds purchased and securities sold under agree-
ments to repurchase ..................................................... 45,307
Demand notes issued to the U.S. Treasury ................................ 161
Trading liabilities ..................................................... 47,406
Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases):
With a remaining maturity of one year or less ...................... 4,578
With a remaining maturity of more than one year ....................
through three years ......................................... 261
With a remaining maturity of more than three years ................ 131
Bank's liability on acceptances executed and outstanding ................ 2,212
Subordinated notes and debentures ....................................... 5,715
Other liabilities ....................................................... 12,355
TOTAL LIABILITIES ....................................................... 274,587
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ........................... 0
Common stock ............................................................ 1,211
Surplus (exclude all surplus related to preferred stock) ............... 10,294
Undivided profits and capital reserves .................................. 5,414
Net unrealized holding gains (losses)
on available-for-sale securities ........................................ 7
Cumulative foreign currency translation adjustments ..................... 16
TOTAL EQUITY CAPITAL .................................................... 16,942
--------
TOTAL LIABILITIES AND EQUITY CAPITAL .................................... $291,529
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
- 5 -
