<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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EL PASO ENERGY CAPITAL TRUST I EL PASO NATURAL GAS COMPANY
- ------------------------------------------------------- ---------------------------------------------------------------
(Exact name of registrant as specified in its charter) (Exact name of registrant)
DELAWARE DELAWARE
- ------------------------------------------------------- ---------------------------------------------------------------
(State of incorporation or organization) (State of Incorporation or organization)
76-6133070 74-0608280
- ------------------------------------------------------- ---------------------------------------------------------------
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
C/O EL PASO NATURAL GAS COMPANY
1001 LOUISIANA 1001 LOUISIANA
HOUSTON, TEXAS 77002 HOUSTON, TEXAS 77002
- ------------------------------------------------------- ---------------------------------------------------------------
(Address of principal executive office) (Address of principal executive office)
(Zip Code) (Zip Code)
If this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is
effective pursuant to General Instruction A.(c), check the following box: [X]
If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is
effective pursuant to General Instruction A.(d), check the following box: [ ]
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
- ------------------------------------------------------- ---------------------------------------------------------------
___% TRUST CONVERTIBLE
PREFERRED SECURITIES
(AND THE GUARANTEE WITH RESPECT THERETO) NEW YORK STOCK EXCHANGE
- ------------------------------------------------------- ---------------------------------------------------------------
Securities Act registration statement file numbers to which this form relates:
333-42713, 333-42713-01
- -------------------------------------------------------------------------------------------------------------------------
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
NONE
- -------------------------------------------------------------------------------------------------------------------------
(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
For a full description of the ___% Trust Convertible
Preferred Securities of El Paso Energy Capital Trust I (the "Preferred
Securities") and El Paso Natural Gas Company's guarantee with respect to the
Preferred Securities (the "Guarantee") being registered hereby, reference is
made to the information contained under the captions "Description of Trust
Preferred Securities" and "Description of the Guarantee" in the Prospectus and
the Prospectus Supplement that forms part of the Company's Registration
Statement (Registration No. 333-14617) filed with the Securities and Exchange
Commission ("SEC") on December 19, 1997, under the Securities Act of 1933, as
amended, which registration statement was amended by Amendment No. 1 filed with
the SEC on January 15, 1998 and declared effective on January 16, 1998. The
information contained in the foregoing Registration Statement, as amended (the
"Registration Statement"), the Prospectus and the Prospectus Supplement, is
incorporated herein by reference. Definitive copies of the Prospectus
Supplement describing the Preferred Securities and the Guarantee will be filed
pursuant to Rule 424(b) and shall be incorporated by reference into this
registration statement on Form 8-A.
ITEM 2. EXHIBITS
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2.1 -- Form of Subordinated Indenture
2.2 -- Form of First Supplemental Indenture
2.3 -- Form of Subordinated Convertible Debenture
2.4 -- Certificate of Trust of El Paso Energy Capital Trust I (incorporated by reference to Exhibit
4.3 to the Registration Statement)
2.5 -- Form of Amended and Restated Declaration of Trust of El Paso Energy Capital Trust I
2.6 -- Form of Trust Preferred Security (included in Exhibit 2.5)
2.7 -- Form of Trust Convertible Preferred Securities Guarantee Agreement to be issued by El Paso Natural Gas Company
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, as amended, the Registrants have duly caused this Registration Statement
on Form 8-A to be signed on its behalf by the undersigned, thereunto duly
authorized.
EL PASO NATURAL GAS COMPANY
Dated: March 2, 1998 By: /s/ H. BRENT AUSTIN
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H. Brent Austin
Executive Vice President and
Chief Financial Officer
EL PASO ENERGY CAPITAL TRUST I
Dated: March 2, 1998 By: /s/ H. BRENT AUSTIN
------------- --------------------------------
H. Brent Austin, Trustee
By: /s/ JEFFREY I. BEASON
--------------------------------
Jeffrey I. Beason, Trustee
By: /s/ C. DANA RICE
--------------------------------
C. Dana Rice, Trustee
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INDEX TO EXHIBITS
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<CAPTION>
EXHIBIT NO. DESCRIPTION
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2.1 -- Form of Subordinated Indenture
2.2 -- Form of First Supplemental Indenture
2.3 -- Form of Subordinated Convertible Debenture
2.4 -- Certificate of Trust of El Paso Energy Capital Trust I (incorporated by reference to Exhibit
4.3 to the Registration Statement)
2.5 -- Form of Amended and Restated Declaration of Trust of El Paso Energy Capital Trust I
2.6 -- Form of Trust Preferred Security (included in Exhibit 2.5)
2.7 -- Form of Trust Convertible Preferred Securities Guarantee Agreement to be issued by El Paso Natural Gas Company
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EXHIBIT 2.1
===============================================================================
EL PASO NATURAL GAS COMPANY
TO
THE CHASE MANHATTAN BANK
TRUSTEE
------------------
INDENTURE
DATED AS OF ________, 1998
------------------
SUBORDINATED DEBT SECURITIES
------------------
===============================================================================
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EL PASO NATURAL GAS COMPANY
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939:
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<CAPTION>
Trust Indenture Indenture Section
Act Section
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Section 310 (a)(1)................................................................................ 6.9
(a)(2)................................................................................ 6.9
(a)(3)................................................................................ Not Applicable
(a)(4)................................................................................ Not Applicable
(b)................................................................................... 6.8; 6.10
Section 311 (a)................................................................................... 6.13
(b)................................................................................... 6.13
Section 312 (a)................................................................................... 7.1; 7.2
(b)................................................................................... 7.2
(c)................................................................................... 7.2
Section 313 (a)................................................................................... 7.3
(b)................................................................................... 7.3
(c)................................................................................... 7.3
(d)................................................................................... 7.3
Section 314 (a)................................................................................... 7.4
(a)(4)................................................................................ 1.4; 10.4
(b)................................................................................... Not Applicable
(c)(1)................................................................................ 1.1
(c)(2)................................................................................ 1.1; 1.2
(c)(3)................................................................................ Not Applicable
(d)................................................................................... Not Applicable
(e)................................................................................... 1.2
Section 315 (a)................................................................................... 6.1
(b)................................................................................... 6.2
(c)................................................................................... 6.1
(d)................................................................................... 6.1
(e)................................................................................... 5.14
Section 316 (a)................................................................................... 1.1
(a)(1)(A)............................................................................. 5.2; 5.12
(a)(1)(B)............................................................................. 5.13
(a)(2)................................................................................ Not Applicable
(b)................................................................................... 5.8
(c)................................................................................... 1.4
Section 317 (a)(1)................................................................................ 5.3
(a)(2)................................................................................ 5.4
(b)................................................................................... 10.3
Section 318 (a)................................................................................... 1.7
</TABLE>
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
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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
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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
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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 Company May Form Holding Company Only on Certain Terms......................................51
SECTION 8.3 Successor Substituted.......................................................................52
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
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ARTICLE X
COVENANTS
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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
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ARTICLE XIV
SUBORDINATION OF SECURITIES
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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
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INDENTURE dated as of ______, 1998, between EL PASO NATURAL GAS
COMPANY, a corporation duly organized and existing under the laws of Delaware
(the "Company"), having its principal office at El Paso Energy Building, 1001
Louisiana, Houston, Texas 77002, and THE CHASE MANHATTAN BANK, a New York
banking corporation, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated 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
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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
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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 450 West 33rd Street, New York, New
York 10001.
"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
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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
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"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
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original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the U.S. dollar equivalent (as so
determined) on the date of original issuance of such Security, of the amount
determined as provided in Clause (A) above) of such Security, and (C) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned as described in Clause (C)
above which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Stated Maturity or Stated Maturities
thereof, the original issue date or dates thereof, the redemption provisions, if
any, with respect thereto, and any other terms specified as contemplated by
Section 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.
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<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,
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<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
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<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.
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<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
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<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.
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<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, the holders of Senior Debt 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
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<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 , 1998 (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,
<TABLE>
<CAPTION>
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
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>
<CAPTION>
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.]
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<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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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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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 by each Holder 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, issuance of the Securities
and the execution of the Indenture.
The Indenture contains provisions that relieve the Company from the
obligation to comply with certain restrictive covenants in the Indenture and for
satisfaction and discharge at any time of the entire indebtedness upon
compliance by the Company with certain conditions set forth in the Indenture.
This Security shall be governed by and construed in accordance with the
laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
[If a Definitive Security, insert as a separate page--
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address of Assignee)
the within instrument of EL PASO NATURAL GAS COMPANY and does hereby irrevocably
constitute and appoint __________________________ Attorney to transfer said
instrument on the books of the within-named Company, with full power of
substitution in the premises.
Please Insert Social Security or
other Identifying Number of Assignee:
-------------------------
Dated:
----------------------------- ------------------------------
Signature
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.]
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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 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.
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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);
(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;
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<PAGE> 30
(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 1.1;
(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
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<PAGE> 31
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 and the terms and conditions upon which any Securities
of the series may be converted into or exchanged for securities, which may
include, without limitation, capital stock, of any class or series of the
Company or any other issuer;
(s) 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;
(t) if other than the Trustee, the identity of the Security
Registrar and any Paying Agent; and
(u) 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 (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
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<PAGE> 32
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
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
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<PAGE> 33
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 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.
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<PAGE> 34
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 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 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
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<PAGE> 35
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.
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
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<PAGE> 36
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 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.
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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 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
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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 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.
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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
(ii) all such Securities not theretofore
delivered to the Trustee for cancellation
(A) have become due and payable, or
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(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 (A), (B) or (C) 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 XIV 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 XIV 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 XIV 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 XIV 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 fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 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: Subject to Article XIV, 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.
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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
(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
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any determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 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.
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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
(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.
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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.
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;
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(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;
(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.
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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.
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)
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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.
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:
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(a) the Trustee shall fail 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,
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.
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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 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.
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(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 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
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the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of such Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or such Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail 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.
The Chase Manhattan Bank,
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.
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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.
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 for trading 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 (a) and (b)
of this Section as may be required by rules and regulations prescribed from time
to time by the Commission.
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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:
(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, 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 Company May Form Holding Company Only on Certain Terms.
Notwithstanding anything to the contrary in Section 8.1, the Company
may form a holding company by merger with or into a single direct or indirect
wholly owned subsidiary of the Company, whether under Section 251 (g) of the
General Corporation Law of Delaware or otherwise, and in connection therewith
the Company may sell, lease or transfer any of its properties and units to such
holding company, provided that:
(a) Such holding company shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the due and punctual payment of the principal of
and any premium and interest on all 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 Opinion of Counsel, each stating that the formation of such holding company
and the transactions effected in connection therewith 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
transactions have been complied with.
SECTION 8.3 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 or formation of a holding company in accordance with Section 8.2,
the successor Person formed by such consolidation or into which the Company is
merged or to which such sale, transfer or lease is made, or which constitutes
the holding company contemplated by Section 8.2, 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.
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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 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
(d) 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
(e) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 3.1; or
(f) 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
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11; or
(h) 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
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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 Security
affected thereby,
(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 modify the provisions of this Indenture with respect to the subordination of
the Securities in a manner adverse to the Holders or adversely affect any right
to convert or exchange any Security into any other security, 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.
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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.
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.
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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 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 Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until
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such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) hold all sums held by it for
the payment of the principal of (and premium, if any) or interest, if any, on
Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided; (2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest, if any, on the
Securities of that series; and (3) during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
held in trust by such Paying Agent for payment in respect of the Securities of
that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
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.
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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 Securities
of all affected series (voting as one class) shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
A waiver which changes or eliminates any term, provision or condition
of this Indenture which has expressly been included solely for the benefit of
one or more particular series of Securities, or which modifies the rights of the
Holders of Securities of such series with respect to such term, provision or
condition, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.
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ARTICLE 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. 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 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.
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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.
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.
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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.
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
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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.
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, if
any, to convert or exchange the Securities of such series, (6) 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 (7)
the obligations of the Company under Section 10.2), and the Trustee, at
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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 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 (1) through (7),
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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:
(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;
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(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 it at any time.
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
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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 XIV shall be paid by the liquidating trustee 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
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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 XIV 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 XIV 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 XIV 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 XIV, 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 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 XIV.
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 XIV. The rights and claims of the Trustee
under Section 6.7 shall not be subject to the provisions of this Article XIV.
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
other 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 other amounts on Senior Debt has been made or duly
provided for in money or money's worth.
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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
other 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 (i) prior to the date
fixed for such payment, (ii) prior to the execution of an instrument to satisfy
and discharge this Indenture based upon the deposit of funds under Section
4.1(a)(ii), (iii) prior to the execution of an instrument acknowledging the
defeasance of such Securities pursuant to Section 13.2 or (iv) prior to any
deposit pursuant to clause (a) of Section 13.3 with respect to such Securities.
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 XIV and
appoints the Trustee his attorney-in-fact for any and all such purposes.
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 XIV 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 or representative
of any Senior Debt together with proof satisfactory to the Trustee of such
holding of Senior Debt or of the authority of such trustee or representative;
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 or the defeasance of Securities pursuant to Section 13.2 or the date
on which a deposit pursuant to clause (a) of Section 13.3 is made, 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 or defeasance 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
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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 or
representative on behalf of such holder) to establish that such a notice has
been given by a holder of Senior Debt or a trustee or representative 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 XIV 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 XIV 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.
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 XIV 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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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 2.2
Draft dated February 24, 1998
================================================================================
FIRST SUPPLEMENTAL INDENTURE
BETWEEN
EL PASO NATURAL GAS COMPANY
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
DATED AS OF _________ ___, 1998
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I
SCOPE OF THIS SUPPLEMENTAL INDENTURE..............................................................................2
SECTION 1.1 Changes, etc. Applicable Only to the 1998A Debentures................................2
ARTICLE II
AMENDMENTS TO THE SUBORDINATED INDENTURE; DEFINITION OF TERMS.....................................................2
SECTION 2.1 Amendment to Section 1.1 of the Subordinated Indenture...............................2
SECTION 2.2 Defined Terms........................................................................8
ARTICLE III
1998A DEBENTURE FORM..............................................................................................9
SECTION 3.1 Form of 1998A Debenture..............................................................9
ARTICLE IV
GENERAL TERMS AND CONDITIONS OF THE 1998A DEBENTURES..............................................................9
SECTION 4.1 Designation, Title and Terms.........................................................9
SECTION 4.2 Amendments to Section 3.5 of the Subordinated Indenture.............................10
SECTION 4.3 Amendment to Section 3.7 of the Subordinated Indenture..............................11
SECTION 4.4 Changes to Section 5.1(a) and 5.1(b) Events of Default..............................12
SECTION 4.5 1998A Debenture Events of Default...................................................13
SECTION 4.6 Amendment to Section 5.13 of the Subordinated Indenture.............................13
SECTION 4.7 Modification of Section 10.6 of the Subordinated Indenture..........................14
ARTICLE V
REDEMPTION AND EXCHANGE OF THE 1998A DEBENTURES..................................................................15
SECTION 5.1 Optional Redemption................................................................15
SECTION 5.2 Redemption upon Occurrence of Trust Tax Event.......................................16
SECTION 5.3 Exchange of Trust Securities for Debentures.........................................16
SECTION 5.4 Interest on Converted 1998A Debentures..............................................16
SECTION 5.5 No Sinking Fund.....................................................................17
ARTICLE VI
CONVERSION OF 1998A DEBENTURES...................................................................................17
SECTION 6.1 Conversion Rights...................................................................17
SECTION 6.2 Conversion Procedures...............................................................17
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
SECTION 6.3 Expiration of Conversion Rights.....................................................19
SECTION 6.4 Conversion Price Adjustments........................................................19
SECTION 6.5 Fundamental Change..................................................................24
SECTION 6.6 Notice of Adjustments of Conversion Price...........................................25
SECTION 6.7 Prior Notice of Certain Events......................................................26
SECTION 6.8 Dividend Reinvestment and Other Plans...............................................27
SECTION 6.9 Certain Additional Rights...........................................................27
SECTION 6.10 Reservation of Common Stock; Taxes..................................................28
SECTION 6.11 Trustee Not Responsible for Determining Conversion Price
or Adjustments......................................................................28
ARTICLE VII
EXTENSION OF INTEREST PAYMENT PERIOD.............................................................................29
SECTION 7.1 Extension of Interest Payment Period................................................29
SECTION 7.2 Additional Sums.....................................................................29
ARTICLE VIII
LIMITATION OF TRANSACTIONS, COVENANTS AS TO TRUST; CERTAIN
CONVERSIONS DEEMED PAYMENT..............................................................................30
SECTION 8.1 Limitation of Transactions..........................................................30
SECTION 8.2 Covenants As To Trust...............................................................30
SECTION 8.3 Certain Conversions Deemed Payment..................................................31
ARTICLE IX
MISCELLANEOUS....................................................................................................32
SECTION 9.1 Conflict of Any Provision with Trust Indenture Act of 1939..........................32
SECTION 9.2 New York Law to Govern..............................................................32
SECTION 9.3 Counterparts........................................................................32
SECTION 9.4 Effect of Headings..................................................................32
SECTION 9.5 Severability of Provisions..........................................................32
SECTION 9.6 Successors and Assigns..............................................................32
SECTION 9.7 Benefit of First Supplemental Indenture.............................................33
SECTION 9.8 Acceptance by Trustee...............................................................33
SECTION 9.9 Ratification of Subordinated Indenture; First Supplemental Indenture
Controls; Scope of Subordinated Indenture...........................................33
</TABLE>
ii
<PAGE> 4
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE dated as of _________ ___, 1998 (the
"First Supplemental Indenture"), to the Indenture, dated as of _________ ___,
1998 (the "Subordinated Indenture"), is between EL PASO NATURAL GAS COMPANY, a
Delaware corporation (hereinafter called the "Company"), and THE CHASE
MANHATTAN BANK, a New York banking corporation (hereinafter called the
"Trustee").
RECITALS OF THE COMPANY:
WHEREAS, the Company has duly authorized the execution and delivery of
the Subordinated Indenture to provide for the issuance from time to time of its
debentures, notes, bonds or other evidences of indebtedness (hereinafter called
the "Securities") to be issued in one or more fully registered series, as in
the Subordinated Indenture provided; and
WHEREAS, the Company desires and has requested the Trustee to join it
in the execution and delivery of this First Supplemental Indenture in order to
establish and provide for the issuance by the Company of a series of Securities
designated as its ____% Subordinated Convertible Debentures due 2028 (the
"1998A Debentures"), a specimen copy of which is attached hereto as Exhibit A,
on the terms set forth herein; and
WHEREAS, Section 9.1 of the Subordinated Indenture provides that a
supplement to the Subordinated Indenture may be entered into by the Company and
the Trustee without the consent of any holder of any Securities to, inter alia,
establish the form of securities of any series pursuant to Section 2.1 of the
Subordinated Indenture and to establish the terms of securities of any series
pursuant to Section 3.1 of the Subordinated Indenture, provided certain
conditions are met; and
WHEREAS, the conditions set forth in the Subordinated Indenture for
the execution and delivery of this First Supplemental Indenture have been
complied with; and
WHEREAS, all things necessary to make this First Supplemental
Indenture a valid agreement of the Company and the Trustee, in accordance with
its terms, and a valid amendment of, and supplement to, the Subordinated
Indenture have been done.
NOW, THEREFORE:
There is hereby established a series (as that term is used in Article
II of the Subordinated Indenture) of Securities to be issued under the
Subordinated Indenture, which series of Securities shall have the terms set
forth herein and in the 1998A Debentures, and in consideration of the premises
and the purchase and acceptance of the 1998A Debentures by the holders thereof,
the Company mutually covenants and agrees with the Trustee, for the equal and
proportionate benefit of all holders of the 1998A Debentures, that the
Subordinated Indenture is supplemented and amended, to the extent and for the
purposes expressed herein, as follows:
<PAGE> 5
ARTICLE I
SCOPE OF THIS SUPPLEMENTAL INDENTURE
SECTION 1.1 Changes, etc. Applicable Only to the 1998A Debentures.
Except for the changes to the Subordinated Indenture effected by
Section 4.2 of this First Supplemental Indenture that shall be applicable to
all Securities issued under the Subordinated Indenture, other than as may be
expressly stipulated to the contrary in a supplemental indenture thereto, the
changes, modifications and supplements to the Subordinated Indenture effected
by this First Supplemental Indenture shall be applicable only with respect to,
and govern the terms of, the 1998A Debentures, which shall be limited in
aggregate principal amount to (a) $____________ plus (b) such additional
aggregate principal amount (which may not exceed $_____________ principal
amount) of 1998A Debentures as shall be purchased in connection with the
exercise by the Underwriters on the Option Closing Date (as such term is
defined in the Underwriting Agreement) pursuant to the Underwriting Agreement
dated __________ ___, 1998 (the "Underwriting Agreement") among the Company, El
Paso Energy Capital Trust I and Donaldson, Lufkin & Jenrette Securities
Corporation, Goldman, Sachs & Co. and Morgan Stanley Dean Witter, and shall not
apply to any other Securities which may be issued under the Subordinated
Indenture unless a supplemental indenture with respect to such other Securities
specifically incorporates such changes, modifications and supplements.
ARTICLE II
AMENDMENTS TO THE SUBORDINATED INDENTURE; DEFINITION OF TERMS
SECTION 2.1 Amendment to Section 1.1 of the Subordinated Indenture.
Section 1.1 of the Subordinated Indenture is hereby amended by adding
the following definitions in their proper alphabetical order:
"Additional Interest" means the interest, if any, that shall accrue on
any interest on the 1998A Debentures that is in arrears for one or more
quarterly interest payment periods or not paid during any Extension Period,
which in either case shall accrue at the stated rate per annum specified or
determined as specified in such 1998A Debenture and compounded quarterly.
"Additional Sums" means, with respect to the Trust Securities, the
additional amounts as may be necessary in order that the amount of
Distributions then due and payable by the Trust on the outstanding Trust
Preferred Securities and Trust Common Securities shall not be reduced as a
result of any additional taxes, duties and governmental charges to which the
Trust has become subject.
"Applicable Price" means (i) in the case of a Non-Stock Fundamental
Change in which the holders of the Common Stock receive only cash, the amount
of cash received by the holder of one
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<PAGE> 6
share of Common Stock and (ii) in the event of any other Non-Stock Fundamental
Change or any Stock Fundamental Change, the average of the Closing Prices for
the Common Stock during the 10 Trading Days prior to and including the record
date for the determination of the holders of Common Stock entitled to receive
such securities, cash, or other property in connection with such Non-Stock
Fundamental Change or Stock Fundamental Change or, if there is no such record
date, the date upon which the holders of the Common Stock shall have the right
to receive such securities, cash, or other property (such record date or
distribution date being referred to as the "Entitlement Date"), in each case as
adjusted in good faith by the Company to appropriately reflect any of the
events referred to in Section 6.4 of the First Supplemental Indenture.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents (however designated)
of such Person's capital stock, and any rights (other than debt securities
convertible into capital stock), warrants or options exchangeable for or
convertible into such capital stock.
"Change in 1940 Act Law" means, as a result of the occurrence on or
after the date of the original issuance of the Trust Preferred Securities of a
change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority, the Trust is or will be considered an "investment company" which is
required to be registered under the 1940 Act.
"Closing Price" means, with respect to any shares of Capital Stock, on
any day the reported last sale price on such day or, in case no sale takes
place on such day, the average of the reported closing bid and asked prices in
each case on the New York Stock Exchange Composite Tape or, if the Capital
Stock is not then traded on the New York Stock Exchange, on the principal
national securities exchange or quotation system on which such Capital Stock is
listed or admitted to trading or quoted or, if not listed or admitted to
trading on any national securities exchange or quotation system, the average of
the closing bid and asked prices of such Capital Stock in the over-the-counter
market on the day in question as reported by the National Quotation Bureau
Incorporated, or a similar generally accepted reporting service, or, if not so
available in such manner, as furnished by the National Association of
Securities Dealers member firm selected from time to time by the Board of
Directors for that purpose or, if not so available in such manner, as otherwise
determined in good faith by the Board of Directors.
"Common Stock" includes any stock of any class of Capital Stock of any
Person which has no preference in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution or
winding-up of such Person and which is not subject to redemption by such
Person. However, subject to the provisions of Section 6.4 of the First
Supplemental Indenture, shares issuable on conversion of 1998A Debentures shall
include only shares of the class designated as Common Stock of the Company at
the date of this instrument or shares of any class or classes resulting from
any reclassification or reclassifications thereof and which have no preference
in respect of the payment of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding-up of the
Company and which
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are not subject to redemption by the Company; provided, that if at any time
there shall be more than one such resulting class, the shares of each such
class then so issuable shall be substantially in the proportion which the total
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of all such classes resulting from all such
reclassifications.
"Conversion Agent" has the meaning specified in Section 6.2(a) of the
First Supplemental Indenture.
"Conversion Date" has the meaning specified in Section 6.2(a) of the
First Supplemental Indenture.
"Conversion Expiration Date" has the meaning specified in Section 6.3
of the First Supplemental Indenture.
"Conversion Price" has the meaning specified in Section 6.1 of the
First Supplemental Indenture.
"Current Market Price" means the average of the last reported sale
price, regular way, for the 10 Trading Days (as defined herein) ending on the
date of determination, or, if no sale takes place on any such day, the average
of the reported closing bid and asked prices on such day(s), regular way, in
either case as reported on New York Stock Exchange Composite Tape, or, if such
Common Stock is not listed or admitted to trading on New York Stock Exchange
Composite Tape on any such day, on the principal national securities exchange
or quotation system on which such Common Stock is listed or admitted to
trading, or, if not listed or admitted to trading or quoted on any national
securities exchange or quotation system, the average closing bid and asked
prices of such Common Stock in the over-the-counter market for the 10 Trading
Days in question as reported by the National Quotation Bureau Incorporated, or
a similar generally accepted reporting service, or, if not so available in such
manner, as furnished by any member firm of the National Association of
Securities Dealers, Inc. selected from time to time by the Board of Directors
of the Company for that purpose or, if not so available in such manner, as
otherwise determined in good faith by the Board of Directors of the Company. As
used herein, the term "Trading Day" shall mean a day on which the principal
national securities exchange on which the Common Stock is listed or admitted to
trading is open for the transaction of business or, if the Common Stock is not
listed or admitted to trading on any national securities exchange, a Business
Day.
"Declaration" means the Amended and Restated Declaration of Trust of
the Trust, dated ___________, 1998, as the same may be modified, amended or
supplemented in accordance with the applicable provisions thereof, including
all exhibits thereto, including, for all purposes of the Declaration, any such
modification, amendment or supplement, and the provisions of the Trust
Indenture Act that are deemed to be a part of and govern the Declaration.
"Entitlement Date" has the meaning specified in the definition of
"Applicable Price."
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<PAGE> 8
"Expiration Time" has the meaning set forth in Section 6.4 of the
First Supplemental Indenture.
"Extension Period" has the meaning set forth in the form of 1998A
Debenture attached as Exhibit A hereto.
"First Supplemental Indenture" means the First Supplemental Indenture
hereto, dated as of March __, 1998, between the Company and the Trustee,
which supplements this Indenture to the extent specified therein.
"Fundamental Change" means the occurrence of any Transaction or event
in connection with a plan pursuant to which all or substantially all of the
Common Stock shall be exchanged for, converted into, acquired for, or
constitute solely the right to receive securities, cash, or other property
(whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, continuance, combination, reclassification,
recapitalization, holding Company reorganization pursuant to Section 251(g) of
the Delaware General Corporation Law or otherwise), provided that, in the case
of a plan involving more than one such Transaction or event, for purposes of
adjustment of the Conversion Price, such Fundamental Change shall be deemed to
have occurred when substantially all of the Common Stock shall be exchanged for,
converted into, or acquired for or constitute solely the right to receive
securities, cash, or other property, but the adjustment shall be based upon the
consideration that a holder of Common Stock received in such Transaction or
event as a result of which more than 50% of the Common Stock shall have been
exchanged for, converted into, or acquired for or constitute solely the right to
receive securities, cash, or other property.
"Liquidation Amount" means an amount with respect to the assets of the
Trust equal to $50 per Trust Security.
"1940 Act" means the Investment Company Act of 1940, as amended from
time to time, or any successor legislation.
"1998A Debentures" means the Company's ___% Subordinated Convertible
Debentures due 2028.
"Non-Stock Fundamental Change" means any Fundamental Change other than
a Stock Fundamental Change.
"Notice of Conversion" means the notice given (i) by a Holder of 1998A
Debentures to the Conversion Agent directing the Conversion Agent to convert
such 1998A Debentures into Common Stock on behalf of such Holder or (ii) by a
holder of Trust Preferred Securities to the Conversion Agent under the
Declaration directing such Conversion Agent to exchange such Trust Preferred
Securities for 1998A Debentures and to convert such Debentures into Common
Stock on behalf of such holder.
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"Purchaser Stock Price" means, with respect to any Stock Fundamental
Change the average of the Closing Prices for the Common Stock received in such
Stock Fundamental Change for the ten consecutive Trading Days prior to and
including the Entitlement Date, as adjusted in good faith by the Company to
appropriately reflect any of the events referred to in Section 6.4.
"Property Trustee" means the property trustee of the Trust appointed
pursuant to Section 6.3 of the Declaration.
"Purchased Shares" has the meaning specified in Section 6.4(e) of the
First Supplemental Indenture.
"Purchaser Stock Price" means, with respect to any Stock Fundamental
Change the average of the Closing Prices for the Common Stock received in such
Stock Fundamental Change for the 10 consecutive Trading Days prior to and
including the Entitlement Date, as adjusted in good faith by the Company to
appropriately reflect any of the events referred to in Section 6.4 of the First
Supplemental Indenture.
"Reference Date" has the meaning specified in Section 6.4 of the First
Supplemental Indenture.
"Reference Market Price" initially means $______ (which is an amount
equal to [66 2/3]% of the last reported sale price for the Common Stock on The
New York Stock Exchange Composite Tape on ____________, 1998), and in the event
of any adjustment of the Conversion Price other than as a result of a Non-Stock
Fundamental Change, the Reference Market Price shall also be adjusted so that
the ratio of the Reference Market Price to the Conversion Price after giving
effect to any such adjustment shall always be the same as the ratio of the
initial Reference Market Price to the initial Conversion Price of the 1998A
Debentures.
"Rights Agreement" means the Amended and Restated Shareholder Rights
Agreement, dated July 23, 1997, between the Company and The First National Bank
of Boston, as rights agent, or any successor to such Rights Agreement.
"Stock Fundamental Change" means either (i) any Fundamental Change
that is a holding company reorganization (whether effected in accordance with
Section 251(g) of the Delaware General Corporation Law or otherwise) provided
that immediately after such Fundamental Change the Common Stock of the holding
company in such Transaction is admitted for listing on a national securities
exchange or for quotation on the Nasdaq National Market or (ii) any Fundamental
Change in which more than 50% of the value (as determined in good faith by the
Board of Directors in a Board Resolution) of the consideration received by
holders of Common Stock consists of Common Stock that for each of the 10
consecutive Trading Days prior to the Entitlement Date has been admitted for
listing or admitted for listing subject to notice of issuance on a national
securities exchange or quoted on the Nasdaq National Market; provided, however,
that a Fundamental Change that is not a holding company reorganization described
in clause (i) above shall not be a Stock Fundamental Change if either (a) the
Company continues to exist after the occurrence of such Fundamental Change and
the outstanding Trust Preferred Securities continue to exist as outstanding
Trust Preferred Securities or (b) not later than the occurrence of such
Fundamental Change, the outstanding Trust Preferred Securities are converted
into or exchanged for shares of convertible Preferred Stock of an entity
succeeding to the business of the Company or a subsidiary thereof, which
convertible Preferred Stock has powers, preferences, and relative,
participating, optional, or other rights, and qualifications, limitations, and
restrictions, substantially similar to those of the Trust Preferred Securities.
"Tax Action" means (a) an amendment to, change in or announced
proposed change in the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, (b)
a judicial decision interpreting, applying or clarifying such laws or
regulations, (c) an administrative pronouncement or action that represents an
official position (including a clarification of an official position) of the
governmental authority or regulatory body making such administrative
pronouncement or taking such action, or (d) a threatened challenge asserted in
connection with an audit of the Company or any of its subsidiaries, or the
Trust, or a
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<PAGE> 10
threatened challenge asserted in writing against any other taxpayer that has
raised capital through the issuance of securities that are substantially
similar to the 1998A Debentures, or the Trust Preferred Securities, which
amendment or change is adopted or which decision, pronouncement or proposed
change is announced or which action, clarification or challenge occurs on or
after the date of the prospectus related to the issuance of the Trust Preferred
Securities.
"Trading Day" means a Monday, Tuesday, Wednesday, Thursday and Friday,
other than any day on which securities are not traded on the applicable
securities exchange in the applicable securities market.
"Transaction" has the meaning specified in Section 6.5 of the First
Supplemental Indenture.
"Trust" means El Paso Energy Capital Trust I, a Delaware business
trust and an Affiliate of the Company and any successor to such trust in
accordance with the Declaration.
"Trust Common Security" means the common securities representing
undivided subordinated beneficial ownership interests in the assets of the
Trust with a Liquidation Amount of $50 per Trust Common Security, issued by the
Trust.
"Trust Investment Company Event" means that the Company shall have
requested and received and shall have delivered to the Property Trustee an
Opinion of Counsel (as defined in the Declaration) from a firm having a
national tax and securities practice and that is experienced in 1940 Act
matters (which Opinion of Counsel shall not have been rescinded by such law
firm) to the effect that as a result of a Change in 1940 Act Law, there is more
than an insubstantial risk that the Trust is or, within 90 days after such
date, will be considered an "investment company" which is required to be
registered under the 1940 Act.
"Trust Preferred Securities" means the preferred undivided beneficial
ownership interests in the assets of the Trust with a Liquidation Amount of $50
per Trust Preferred Security, issued by the Trust.
"Trust Securities" means the Trust Common Securities and the Trust
Preferred Securities.
"Trust Special Event" means a Trust Tax Event or a Trust Investment
Company Event.
"Trust Tax Event" means that the Company shall have requested and
received and shall have delivered to the Property Trustee an Opinion of Counsel
(as defined in the Declaration) from a firm having a national tax and
securities practice (which Opinion of Counsel shall not have been rescinded by
such law firm) that there has been a Tax Action which relates to any of the
items described in (i) through (iii) below, and that there is more than an
insubstantial risk that (i) the Trust is or, within 90 days after such date,
will be subject to United States federal income tax with respect to income
accrued or received on the 1998A Debentures, (ii) the Trust is or, within 90
days after such date, will be subject to more than a de minimis amount of other
taxes, duties, assessments or
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<PAGE> 11
other governmental charges or (iii) interest payable by the Company on the
1998A Debentures is not or, within 90 days after such date, will not be
deductible by the Company for United States federal income tax purposes.
"Underwriters" with respect to the Trust Preferred Securities, means
Donaldson, Lufkin & Jenrette Securities Corporation, Goldman, Sachs & Co. and
Morgan Stanley Dean Witter.
"Underwriting Agreement" shall have the meaning set forth in Section
1.1 of the First Supplemental Indenture.
SECTION 2.2 Defined Terms
For all purposes of this First Supplemental Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(i) the terms which are defined in the Subordinated Indenture have
the same meanings when used in this First Supplemental Indenture;
(ii) the terms defined in this Article have the meaning assigned to
them in this Article and include the plural as well as the singular;
(iii) all other terms used herein which are defined in the Trust
Indenture Act, whether directly or by reference therein, have the meanings
assigned to them therein;
(iv) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States of America
at the date of such computation;
(v) a reference to a Section or Article is to a Section or Article
of this First Supplemental Indenture unless otherwise specified;
(vi) the words "herein" "hereof" and "hereunder" and other words of
similar import refer to this First Supplemental Indenture as a whole and not to
any particular Article, Section or other subdivision;
(vii) headings are for convenience of reference only and do not
affect interpretation; and
(viii) the following terms have the meanings given to them in the
Declaration: (i) Additional Amounts; (ii) Administrative Trustee; (iii) Trust
Common Securities Guarantee; and (iv) Trust Preferred Securities Guarantee.
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<PAGE> 12
ARTICLE III
1998A DEBENTURE FORM
SECTION 3.1 Form of 1998A Debenture.
The 1998A Debentures, with the form of the Trustee's Certificate of
Authentication to be endorsed thereon, shall be substantially in the form of
Exhibit A to this First Supplemental Indenture.
ARTICLE IV
GENERAL TERMS AND CONDITIONS OF THE 1998A DEBENTURES
SECTION 4.1 Designation, Title and Terms.
There is hereby authorized a series of Securities designated the
"____% Convertible Subordinated Debentures due 2028," limited in aggregate
principal amount to (a) $ plus (b) such aggregate principal amount (which may
not exceed $__________ principal amount) of additional 1998A Debentures as
shall be purchased by the Underwriters on the Option Closing Date pursuant to
the Underwriting Agreement, which amount shall be as set forth in any written
order of the Company for the authentication and delivery of 1998A Debentures
pursuant to Section 3.3 of the Subordinated Indenture. All of the 1998A
Debentures issued pursuant to this First Supplemental Indenture shall be deemed
to have been issued as of, and shall begin to accrue interest as specified
herein from, the Closing Date (as such term is defined in the Underwriting
Agreement). The 1998A Debentures will be issued only in registered form without
coupons and only in denominations of $50 and any integral multiple thereof. The
1998A Debentures will mature on , 2028 and bear interest at a rate of ____% per
annum from _____________, 1998, or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, payable quarterly in
arrears on __________, __________, __________ and __________ of each year,
commencing ________________, 1998. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in the
Subordinated Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of
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<PAGE> 13
business on the Regular Record Date for such interest, which shall be the
fifteenth day of the month of such Interest Payment Date (that is, each
__________ 15, __________ 15, __________ 15 and __________ 15). Interest on the
1998A Debentures will be computed on the basis of a 360-day year comprised of
twelve, 30-day months.
Principal of, and premium, if any, and interest on the 1998A
Debentures will be payable, 1998A Debentures may be presented for conversion
and transfers of the 1998A Debentures will be registrable at the office or
agency of the Company in the Borough of Manhattan, The City of New York, and
transfers of the 1998A Debentures will also be registrable at such other office
or agency of the Company as may be maintained for such purpose. In addition,
payment of interest may be made, at the option of the Company, by (i) check
mailed to the address of the Person entitled thereto as shown on the Security
Register or (ii) by wire transfer in immediately available funds at such place
and to such account as may be designated to the Paying Agent by the Person
entitled thereto as specified in the Security Register no later than the
applicable Record Date.
The Securities will be redeemable as provided in Article V.
The Securities will be convertible as provided in Article VI.
The Securities will be subject to repurchase by the Company, at the
option of the Holders, as provided in the form of Debenture attached as Exhibit
A.
SECTION 4.2 Amendments to Section 3.5 of the Subordinated Indenture.
Section 3.5 of the Subordinated Indenture is hereby amended by
deleting the last paragraph thereof and by substituting the following in lieu
thereof:
Each Global Security authenticated under this Indenture shall
be registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security
shall constitute a single Security for all purposes of this Indenture.
Any exchange of a Global Security for other Securities may be
made in whole or in part, and all Securities issued in exchange for a
Global Security or any portion thereof shall be registered in such
names as the Depositary for such Global Security shall direct.
If at any time the Depositary for the Securities notifies the
Company that it is unwilling or unable to continue as Depositary for
the Securities or if at any time the Depositary for the Securities
shall no longer be qualified to serve as the Depositary, the Company
shall appoint a successor Depositary with respect to the Securities.
If a successor Depositary for the Securities is not appointed by the
Company within 90 days after the Company receives such notice or
becomes aware of such ineligibility, the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and
delivery of definitive Securities, will authenticate and deliver
Securities of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of the Global Security
or Securities in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion
determine that Securities issued in the form of one or more Global
Securities shall no longer be
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<PAGE> 14
represented by such Global Securities. In such event, the Company will
execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities, will
authenticate and deliver Securities of like tenor and terms in
definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities in exchange for
such Global Security or Securities.
Notwithstanding any other provision in this Indenture, 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, unless (1) such Depositary (A)
notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or (B) ceases to be qualified to
serve as Depositary, (2) the Company executes and delivers to the
Trustee a Company Order that such Global Security shall be so
transferable, registrable and exchangeable, and such transfers shall
be registrable, or (3) there shall have occurred and be continuing an
Event of Default. Notwithstanding any other provision in this
Indenture, a Global Security to which the restriction set forth in the
preceding sentence shall have ceased to apply may be transferred only
to, and may be registered and exchanged for Securities registered only
in the name or names of, such Person or Persons as the Depositary for
such Global Security shall have directed and no transfer thereof other
than such a transfer may be registered.
Every Security authenticated and delivered upon registration
of transfer, or in exchange for or in lieu, of a Global Security to
which the restriction set forth in the first sentence of the preceding
paragraph shall apply, whether pursuant to this Section, Sections 3.4,
3.6 or otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Security unless such Security is registered in
the name of a Person other than the Depositary for such Global
Security or a nominee thereof.
SECTION 4.3 Amendment to Section 3.7 of the Subordinated Indenture.
Section 3.7 of the Subordinated Indenture is hereby amended by
inserting the following at the end of such section:
In the case of any 1998A Debenture which is converted after
any Regular Record Date and on or prior to the corresponding Interest
Payment Date (other than any such 1998A Debenture which shall have
been called for redemption on a date within such period), interest on
such 1998A Debenture whose Stated Maturity is on such Interest Payment
Date shall be deemed to continue to accrue and shall be payable on
such Interest Payment Date notwithstanding such conversion, and such
interest (whether or not punctually
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<PAGE> 15
paid or duly provided for) shall be paid to the Person in whose name
that 1998A Debenture (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date.
Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any 1998A Debenture which is converted,
interest whose Stated Maturity is after the date of conversion of such
1998A Debenture shall not be payable (although such accrued and unpaid
interest will be deemed paid by the appropriate portion of the Common
Stock received by the holders upon such conversion).
SECTION 4.4 Changes to Section 5.1(a) and 5.1(b) Events of Default.
For purposes of the 1998A Debentures, the Events of Default specified
in paragraphs (a) and (b) of Section 5.1 of the Subordinated Indenture shall
not apply to the 1998A Debentures, and the following paragraphs shall be
substituted as Events of Default in respect of the 1998A Debentures in lieu
thereof:
(a) default in the payment of any interest upon or any
additional amount payable in respect of any 1998A Debentures 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
subordination provisions set forth in Article XIV hereof or in any
indenture supplemental thereto); provided, however, that a valid
extension of an interest payment period by the Company in accordance
with the terms of the First Supplemental Indenture or any indenture
supplemental hereto, shall not constitute a default in the payment of
interest for this purpose; or
(b) default in the payment of the principal of (or premium,
if any, on) any 1998A Debentures as and when the same shall become due
and payable whether at maturity, upon redemption, by declaration or
otherwise, or in any payment required by any sinking or analogous fund
established with respect to that series (whether or not such payment
is prohibited by the subordination provisions set forth in Article XIV
hereof or in any indenture supplemental hereto); provided, however,
that a valid extension of the maturity of the 1998 Debentures in
accordance with the terms of this Indenture or any indenture
supplemental hereto shall not constitute a default in the payment of
principal or premium, if any.
SECTION 4.5 1998A Debenture Events of Default.
In addition to the matters constituting Events of Default as defined
in the Subordinated Indenture, as modified by Section 4.4 of this First
Supplemental Indenture, the following shall constitute additional Events of
Default with respect to the 1998A Debentures only:
(a) failure by the Company to convert the 1998A Debentures
into shares of Common Stock as provided in Article VI of this First
Supplemental Indenture (whether or not conversion or exchange is
prohibited by the subordination provisions set forth in
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<PAGE> 16
Article XIV of the Subordinated Indenture or in any indenture
supplemental thereto), provided, that Notice of Conversion is
delivered in accordance with Section 6.2(a) of this First Supplemental
Indenture; or
(b) if, after the original issuance of the 1998A Debentures
to the Trust or the Property Trustee in connection with the original
issuance of Trust Securities by the Trust, the Trust shall have
voluntarily or involuntarily dissolved, wound-up its business or
otherwise terminated its existence except in connection with (i) the
distribution of the 1998A Debentures to holders of Trust Securities in
liquidation of their interests in the Trust, (ii) the redemption or
conversion of all of the outstanding Trust Securities of the Trust or
(iii) certain mergers, consolidations or amalgamations, each as
permitted by the Declaration.
SECTION 4.6 Amendment to Section 5.13 of the Subordinated Indenture.
For purposes of the 1998A Debentures, Section 5.13(a) of the
Subordinated Indenture shall not apply to the 1998A Debentures and the
following provision shall be substituted in lieu thereof:
(a) a continuing default in the payment of the principal of
(or premium, if any) or any interest on any 1998A Debentures as and
when the same shall become due by the terms of the 1998A Debentures
otherwise than by acceleration (unless such default has been cured and
sums sufficient to pay all matured installments of interest and
principal and any premium has been deposited with the Trustee (in
accordance with this Indenture)), which default cannot be waived
without the consent of the Holder(s) of each of the 1998A Debentures,
and
(b) the following proviso shall be added at the end of
Section 5.13(b) of the Subordinated Indenture:
; provided, however, that if the 1998A Debentures are held by the
Trust or a trustee of such Trust, such waiver or modification to such
waiver shall not be effective until the holders of a majority in
Liquidation Amount of Trust Securities of the Trust (or such higher
percentage in Liquidation Amount of Trust Securities as may be
specified in the Declaration) shall have consented to such waiver or
modification to such waiver; provided further, that if the consent of
the Holders of a majority in Liquidation Amount of the Trust
Securities of a class (or such higher percentage in Liquidation Amount
of such class of Trust Securities as may be specified in the
Declaration) is required under the Declaration, such waiver shall not
be
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<PAGE> 17
effective until the Holders of a majority (or such higher percentage,
as the case may be) in Liquidation Amount of the Trust Securities of
such class shall have consented to such waiver.
SECTION 4.7 Modification of Section 10.6 of the Subordinated Indenture.
For purposes of the 1998A Debentures, Section 10.6 of the Subordinated
Indenture shall be amended by inserting the following proviso at the end of
such Section:
; provided, however, that if the 1998A Debentures are held by the
Trust or a trustee of such Trust, such waiver or modification to such
waiver shall not be effective until the holders of a majority in
Liquidation Amount of Trust Securities shall have consented to such
waiver or modification to such waiver; provided further, that if the
consent of the Holders of a majority in Liquidation Amount of the
Trust Securities of a class is required under the Declaration, such
waiver shall not be effective until the Holders of a majority in
Liquidation Amount of the Trust Securities of each such class shall
have consented to such waiver.
ARTICLE V
REDEMPTION AND EXCHANGE OF THE 1998A DEBENTURES
SECTION 5.1 Optional Redemption.
(a) Subject to the provisions of Article XI of the Subordinated
Indenture, the Company shall have the right to redeem the 1998A Debentures, in
whole or in part, from time to time, on or after , 2002. Any redemption
pursuant to this paragraph will be made upon not less than 30 days nor more
than 60 days notice to the Holders of the 1998A Debentures, at the following
Redemption Prices (expressed as percentages of the principal amount of the
1998A Debentures), if redeemed during the 12-month period beginning on of the
years set forth below:
<TABLE>
<CAPTION>
Year Redemption Price
---- ----------------
<S> <C>
2002 %
2003
2004
2005
2006
2007
2008 and thereafter 100
</TABLE>
in each case together with accrued and unpaid interest (including Additional
Interest and Additional Sums, if any) to (but not including) the date fixed for
redemption (subject to the rights of Holders of record on any Regular Record
Date to receive interest due on any Interest Payment Date that is on or prior
to such redemption date).
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<PAGE> 18
(b) If at any time prior to the Conversion Expiration Date, less than
ten percent (10%) in principal amount of the 1998A Debentures originally issued
by the Company remain outstanding, such 1998A Debentures shall be redeemable,
at the option of the Company, exercisable at any time in whole but not in part,
at a Redemption Price equal to the aggregate unpaid principal amount thereof,
and all accrued and unpaid interest (including Additional Interest and
Additional Sums, if any) due thereon to the date fixed for redemption.
(c) If any 1998A Debenture selected for partial redemption is
converted in part before termination of the conversion right with respect to
the portion of the 1998A Debenture so selected, the converted portion of such
1998A Debenture shall be deemed (so far as may be) to be the portion selected
for redemption. 1998A Debentures which have been converted during a selection
of 1998A Debentures to be redeemed shall be treated by the Trustee as
Outstanding for the purpose of such selection. In any case where more than one
1998A Debenture is registered in the same name, the Trustee in its discretion
may treat the aggregate principal amount so registered as if it were
represented by one 1998A Debenture.
(d) The notice of redemption to be made to the Holders of the 1998A
Debentures shall specify, in addition to those items specified in Section 11.4
of the Subordinated Indenture, the conversion rate or price, the date on which
the right to convert the 1998A Debentures to be redeemed will terminate and the
place or places where such 1998A Debentures may be surrendered for conversion.
SECTION 5.2 Redemption upon Occurrence of Trust Tax Event.
If, at any time after ____________, 2002, a Trust Tax Event shall
occur and be continuing, the Company shall have the right, within 90 days
following the occurrence of such Trust Tax Event, to elect to redeem the 1998A
Debentures in whole or in part, upon not less than 30 nor more than 60 days'
notice at the Redemption Price for cash equal to the aggregate unpaid principal
amount thereof plus accrued and unpaid interest thereon (including Additional
Interest and Additional Sums, if any) to the date fixed for redemption.
SECTION 5.3 Exchange of Trust Securities for Debentures.
(a) At any time, the Company shall have the right to terminate the
Trust and cause the 1998A Debentures to be distributed to the holders of the
Trust Securities in liquidation of the Trust after satisfaction of liabilities
to creditors of the Trust as provided by applicable law.
(b) If a Trust Special Event shall occur, the Company shall give the
Trustee notice of the same. If a Trust Special Event shall occur and be
continuing, the Declaration requires the Property Trustee and the
Administrative Trustees (as defined in the Declaration) under the Declaration
to direct the Conversion Agent under the Declaration to exchange all
outstanding Trust Securities for the 1998A Debentures having an aggregate
unpaid principal amount equal to the aggregate Liquidation Amount of the Trust
Securities to be exchanged with accrued and unpaid interest in an
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<PAGE> 19
amount equal to any unpaid distributions (including any Additional Amounts (as
defined in the Declaration)) on the Trust Securities, provided that, in the
case of a Trust Tax Event, the Company shall have the right to direct the
Conversion Agent that less than all, or none, of the Trust Securities be so
exchanged (i) if and for so long as the Company shall have elected to pay any
Additional Sums (as defined in the Declaration) such that the net amounts
received by holders of the Trust Securities not so exchanged in respect of
distributions are not reduced as a result of such Trust Tax Event, and shall
not have revoked any such election or failed to make such payments or (ii) if
the Company shall instead elect to redeem the 1998A Debentures, in whole or in
part, in the manner set forth in Section 5.2.
SECTION 5.4 Interest on Converted 1998A Debentures.
If any 1998A Debenture called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held
in trust for the redemption of such 1998A Debenture shall be paid to the
Company upon Company Request or, if then held by the Company, shall be released
from such trust.
SECTION 5.5 No Sinking Fund.
The 1998A Debentures are not entitled to the benefit of any sinking
fund.
ARTICLE VI
CONVERSION OF 1998A DEBENTURES
SECTION 6.1 Conversion Rights.
Subject to and upon compliance with the provisions of this Article,
the 1998A Debentures are convertible, at the option of the Holder, at any time
prior to the Conversion Expiration Date, into fully paid and nonassessable
shares of Common Stock of the Company at an initial conversion rate of ________
shares of Common Stock for each $50 in aggregate principal amount of 1998A
Debentures (equal to a conversion price of $______ principal amount of 1998A
Debentures per share of Common Stock), subject to adjustment as described in
this Article (as adjusted, the "Conversion Price"). A Holder of 1998A
Debentures may convert any portion of the principal amount of the 1998A
Debentures into that number of fully paid and nonassessable shares of Common
Stock (calculated as to each conversion to the nearest 1/100th of a share)
obtained by dividing the principal amount of the 1998A Debentures to be
converted by the Conversion Price. In case a 1998A Debenture or portion thereof
is called for redemption, such conversion right in respect of the 1998A
Debenture or portion so called shall expire at the close of business on the
Conversion Expiration Date.
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<PAGE> 20
SECTION 6.2 Conversion Procedures.
(a) In order to convert all or a portion of the 1998A Debentures, the
Holder thereof shall deliver to the Trustee, as conversion agent or to such
other agent appointed for such purposes (the "Conversion Agent") an irrevocable
Notice of Conversion setting forth the principal amount of 1998A Debentures to
be converted, and the name or names, if other than the Holder, in which the
shares of Common Stock should be issued upon conversion together with the 1998A
Debentures to be converted, duly endorsed or assigned to the Company or in
blank. In addition, a holder of Trust Securities may exercise its right under
the Declaration to convert such Trust Securities into Common Stock by
delivering to the Conversion Agent an irrevocable Notice of Conversion setting
forth the information called for by the preceding sentence and directing the
Conversion Agent (i) to exchange such Trust Preferred Security for a portion of
the 1998A Debentures held by the Trust (at an exchange rate of $50 principal
amount at of 1998A Debentures for each $50 of Liquidation Amount of Trust
Securities) and (ii) to immediately convert such 1998A Debentures, on behalf of
such holder, into Common Stock of the Company pursuant to this Article and, if
such Trust Securities are in definitive form, surrendering such Trust
Securities to the Conversion Agent. So long as the Trust Securities are
outstanding, the Conversion Agent shall not convert any 1998A Debentures except
pursuant to a Notice of Conversion delivered to the Conversion Agent by a
holder of Trust Securities. If a Notice of Conversion is delivered on or after
a Regular Record Date and prior to the subsequent Interest Payment Date (other
than with respect to a 1998A Debenture which has been called for redemption on
a date within such period), the Holder of record on the Regular Record Date
will be entitled to receive the interest paid on the subsequent Interest
Payment Date on the portion of 1998A Debentures to be converted notwithstanding
the conversion thereof prior to such Interest Payment Date. Except as otherwise
provided in the immediately preceding sentence, in the case of any 1998A
Debenture which is converted, interest whose Stated Maturity is on or after the
date of conversion of such 1998A Debenture shall not be payable, and the
Company shall not make nor be required to make any other payment, adjustment or
allowance with respect to accrued but unpaid interest on the 1998A Debentures
being converted, which shall be deemed to be paid in full. Each conversion
shall be deemed to have been effected immediately prior to the close of
business on the day on which the Notice of Conversion was received (the
"Conversion Date") by the Conversion Agent from the Holder or from a holder of
the Trust Securities effecting a conversion thereof pursuant to its conversion
rights under the Declaration, as the case may be. The Person or Persons
entitled to receive the Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such Common Stock
as of the Conversion Date and such Person or Persons shall cease to be a record
Holder or record Holders of the 1998A Debentures on that date. As promptly as
practicable on or after the Conversion Date, the Company shall issue and
deliver at the office of the Conversion Agent, unless otherwise directed by the
Holder in the Notice of Conversion, a certificate or certificates for the
number of full shares of Common Stock issuable upon such conversion, together
with the cash payment, if any, in lieu of any fraction of any share to the
Person or Persons entitled to receive the same. The Conversion Agent shall
deliver such certificate or certificates to such Person or Persons.
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<PAGE> 21
(b) The Company's delivery upon conversion of the fixed number of
shares of Common Stock into which the 1998A Debentures are convertible
(together with the cash payment, if any, in lieu of fractional shares) shall be
deemed to satisfy the Company's obligation to pay the principal amount of the
portion of 1998A Debentures so converted and any unpaid interest (including
Additional Interest and Additional Sums, if any) accrued on such 1998A
Debentures at the time of such conversion.
(c) No fractional shares of Common Stock will be issued as a result
of conversion, but in lieu thereof, the Company shall pay to the Conversion
Agent, a cash adjustment in an amount equal to the same fraction of the Closing
Price with respect to such fractional interest on the date on which the 1998A
Debentures or Trust Preferred Securities, as the case may be, were duly
surrendered to the Conversion Agent for conversion, and the Conversion Agent in
turn will make such payment, if any, to the Holder of the Securities or the
holder of the Trust Securities so converted.
(d) In the event of the conversion of any 1998A Debenture in part
only, a new 1998A Debenture or 1998A Debentures for the unconverted portion
thereof will be issued in the name of the Holder thereof upon the cancellation
of the 1998A Debenture converted in part in accordance with Section 3.5 of the
Subordinated Indenture or with respect to the 1998A Debentures evidenced by a
Global Security or otherwise held by the Property Trustee, by the Trustee
indicating the reduced principal amount of such Global Security on the schedule
attached thereto.
(e) In effecting the conversion transactions described in this
Section, the Conversion Agent is acting as agent of the holders of Trust
Securities (in the exchange of Trust Securities for 1998A Debentures) and as
agent of the Holders of 1998A Debentures (in conversion of 1998A Debentures
into Common Stock), as the case may be, directing it to effect such conversion
transactions. The Conversion Agent is hereby authorized (i) to exchange 1998A
Debentures held by the Trust from time to time for Trust Securities in
connection with the conversion of such Trust Securities in accordance with this
Article and (ii) to convert all or a portion of the 1998A Debentures into
Common Stock and thereupon to deliver such shares of Common Stock in accordance
with the provisions of this Article and to deliver to the Property Trustee a
new 1998A Debenture or 1998A Debentures for any resulting unconverted principal
amount.
SECTION 6.3 Expiration of Conversion Rights.
The conversion rights of the Holders shall expire on the close of
business on the Business Day prior to the maturity date of the 1998A
Debentures, or, in the case of 1998A Debentures called for redemption, at the
close of business on the Business Day prior to the Redemption Date unless the
Company defaults in making the payment due upon redemption (the "Conversion
Expiration Date").
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<PAGE> 22
SECTION 6.4 Conversion Price Adjustments.
The Conversion Price shall be subject to adjustment (without
duplication) from time to time as follows:
(a) In case the Company shall, while any of the 1998A Debentures are
outstanding, (i) pay a dividend or make a distribution with respect to its
Common Stock in shares of Common Stock, (ii) subdivide its outstanding shares
of Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares or (iv) reclassify its shares of Common Stock into
shares of Common Stock and securities other than shares of Common Stock not
constituting a Fundamental Change, then the Conversion Price and the number and
kind of shares of Common Stock and such other securities receivable upon a
conversion of 1998A Debentures in effect immediately prior to such action shall
be adjusted so that the Holder of any 1998A Debentures thereafter surrendered
for conversion shall be entitled to receive the number of shares of Common
Stock and such other securities of the Company which such Holder would have
owned immediately prior thereto if such 1998A Debenture had been converted
immediately prior thereto. An adjustment made pursuant to this subsection (a)
shall become effective immediately after the record date in the case of a
dividend or other distribution and shall become effective immediately after the
effective date in case of a subdivision, combination or reclassification (or
immediately after the record date if a record date shall have been established
for such event). If, as a result of an adjustment made pursuant to this
subsection (a), the Holder of any 1998A Debenture thereafter surrendered for
conversion shall become entitled to receive shares of two or more classes or
series of Capital Stock of the Company, the Board of Directors, whose
determination shall be conclusive and shall be described in a Board Resolution
shall determine the allocation of the adjusted Conversion Price between or
among shares of such classes or series of Capital Stock. In the event that such
dividend, distribution, subdivision, combination or reclassification is not so
paid or made, the Conversion Price shall again be adjusted to be the Conversion
Price which would then be in effect if such record date had not been fixed.
(b) In case the Company shall, while any of the 1998A Debentures are
Outstanding, issue rights or warrants to all holders of its Common Stock
entitling them (for a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase shares of Common Stock at a price
per share less than the Current Market Price per share of Common Stock on the
record date mentioned below, the Conversion Price for the 1998A Debentures
shall be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the date of
issuance of such rights or warrants by a fraction of which the numerator shall
be the number of shares of Common Stock outstanding at the close of business on
the record date mentioned below, plus the number of shares which the aggregate
offering price of the total number of shares so offered for subscription or
purchase would purchase at such Current Market Price, and of which the
denominator shall be the number of shares of Common Stock outstanding at the
close of business on the record date mentioned below, plus the number of
additional shares of Common Stock offered for subscription or purchase. Such
adjustment shall become effective immediately after the record date for the
determination of stockholders entitled to receive such rights or warrants.
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<PAGE> 23
For the purposes of this subsection, the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the Company.
In case any rights or warrants referred to in this subsection in respect of
which an adjustment shall have been made shall expire unexercised, within 45
days after the same shall have been distributed or issued by the Company, the
Conversion Price shall be readjusted at the time of such expiration to the
Conversion Price that would have been in effect if no adjustment had been made
on account of the distribution or issuance of such expired rights or warrants.
(c) Subject to the last sentence of this subsection (c), in case the
Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock evidences of its indebtedness, shares of any class or series of
Capital Stock, cash or assets (including securities, but excluding any rights
or warrants referred to in subsection (b), any dividend or distribution paid
exclusively in cash and any dividend or distribution referred to in Section
6.4(a)), the Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect immediately
prior to the close of business on the date fixed for the determination of
stockholders entitled to such distribution (the "Reference Date") by a fraction
of which the numerator shall be the Current Market Price per share of the
Common Stock on the Reference Date less the fair market value (as determined in
good faith by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution), on the Reference Date, of the portion of
the evidences of indebtedness, shares of Capital Stock, cash and assets so
distributed applicable to one share of Common Stock and the denominator shall
be such Current Market Price per share of the Common Stock, such reduction to
become effective immediately prior to the opening of business on the day
following the Reference Date. In the event that such dividend or distribution
is not so paid or made, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such dividend or distribution
had not occurred. For purposes of this subsection (c), any dividend or
distribution that includes shares of Common Stock or rights or warrants to
subscribe for or purchase shares of Common Stock shall be deemed instead to be
(i) a dividend or distribution of the evidences of indebtedness, shares of
Capital Stock, cash or assets other than such shares of Common Stock or such
rights or warrants (making any Conversion Price reduction required by this
subparagraph (c)) immediately followed by (ii) a dividend or distribution of
such shares of Common Stock or such rights or warrants (making any further
Conversion Price reduction required by subsection (a) or (b)), except any
shares of Common Stock included in such dividend or distribution shall not be
deemed outstanding for purposes of computing any adjustment of the Conversion
Price in subsection (a).
(d) In case the Company shall pay or make a dividend or other
distribution on its Common Stock exclusively in cash (excluding all (i) regular
quarterly cash dividends that do not exceed the per share amount of the
immediately preceding regular quarterly cash dividend (as adjusted to reflect
any of the events referred to in Sections 6.4(a), 6.4(b) or 6.4(c)) and (ii)
regular quarterly cash dividends if the annualized amount thereof per share of
Common Stock does not exceed 10% of the Current Market Price per share of the
Common Stock on the Trading Day immediately preceding the date of declaration
of such dividend), the Conversion Price shall be
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<PAGE> 24
reduced so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the effectiveness of the
Conversion Price reduction contemplated by this subsection (d) by a fraction,
of which the numerator shall be the Current Market Price per share of the
Common Stock on the date fixed for the payment of such distribution less the
amount of cash so distributed (excluding that portion of such distribution that
does not exceed 10% of the Current Market Price per share, determined as
provided above) applicable to one share of Common Stock and of which the
denominator shall be such Current Market Price per share of the Common Stock,
such reduction to become effective immediately prior to the opening of business
on the day following the date fixed for the payment of such distribution;
provided, however, that in the event the portion of the cash so distributed
applicable to one share of Common Stock is equal to or greater than the Current
Market Price per share of the Common Stock on the record date mentioned above
(excluding that portion of such distribution that does not exceed 10% of the
Current Market Price per share, determined as provided above), in lieu of the
foregoing adjustment adequate provision shall be made so that each Holder of
1998A Debentures shall have the right to receive upon conversion the amount of
cash such Holder would have received had such Holder converted such 1998A
Debenture(s) immediately prior to the record date for the distribution of the
cash (less that portion of such distribution that does not exceed 10% of the
Current Market Price per share, determined as provided above). In the event
that such dividend or distribution is not so paid or made, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be in
effect if such record date had not been fixed.
(e) In case a tender or exchange offer (other than an odd-lot offer)
made by the Company or any Subsidiary of the Company for all or any portion of
the Common Stock shall expire and such tender or exchange offer shall involve
the payment by the Company or such Subsidiary of consideration per share of
Common Stock having a fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and described in a
Board Resolution) at the last time (the "Expiration Time") tenders or exchanges
may be made pursuant to such tender or exchange offer as it shall have been
amended) that exceeds 110% of the Current Market Price per share of the Common
Stock on the Trading Day next succeeding the Expiration Time, the Conversion
Price shall be reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price reduction contemplated by this subsection
(e) by a fraction, of which the numerator shall be the number of shares of
Common Stock outstanding (including any shares tendered or exchanged in such
offer) at the Expiration Time (including the Purchased Shares, as defined
below) multiplied by the Current Market Price per share of the Common Stock on
the Trading Day next succeeding the Expiration Time and of which the
denominator shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange
offer) of all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares") (excluding that portion of such
consideration that does not exceed 110% of the Current Market Price per share
of the Common Stock on the Trading Day next succeeding the Expiration Time) and
(y) the product of the number of shares of Common Stock outstanding (less any
Purchased Shares) at the Expiration
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<PAGE> 25
Time and the Current Market Price per share of the Common Stock on the Trading
Day next succeeding the Expiration Time, such reduction to become effective
immediately prior to the opening of business on the day following the
Expiration Time. In the event that no shares are validly accepted in such
tender or exchange offer, the Conversion Price shall again be adjusted to be
the Conversion Price which would then be in effect if such record date had not
been fixed.
(f) The Company shall have the right to reduce from time to time the
Conversion Price by any amount selected by the Company for any period of at
least 20 days, provided, that the Company shall give at least 15 days' prior
notice of such reduction to the Trustee, the Property Trustee, the Conversion
Agent, the holders of the Trust Securities (if the Trust then holds 1998A
Debentures) and other Holders of the 1998A Debentures. The Company may, at its
option, make such reductions in the Conversion Price, in addition to those set
forth above in Sections 6.4(a) through (e), as the Board of Directors deems
advisable to avoid or diminish any income tax to holders of Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.
(g) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in the
Conversion Price; provided, however, that any adjustments which by reason of
this subsection (g) are not required to be made shall be carried forward and
taken into account in determining whether any subsequent adjustment shall be
required. There shall be no adjustment of the Conversion Price in case of the
issuance of any Capital Stock (or securities convertible into or exchangeable
for Capital Stock) of the Company except as specifically described in this
Article.
(h) The Company may make such reductions in the Conversion Price, in
addition to those required by subsections (a) through (f), as the Board of
Directors considers to be advisable to avoid or diminish any income tax to
holders of Common Stock or rights to purchase Common Stock resulting from any
dividend or distribution of stock (or rights to acquire stock) or from any
event treated as such for income tax purposes. The Company from time to time
may reduce the Conversion Price by any amount for any period of time if the
period is at least 20 days, the reduction is irrevocable during the period, and
the Board of Directors shall have made a determination that such reduction
would be in the best interests of the Company, which determination shall be
conclusive. Whenever the Conversion Price is reduced pursuant to the preceding
sentence, the Company shall mail to Holders of record of the 1998A Debentures a
notice of the reduction at least 15 days prior to the date the reduced
Conversion Price takes effect, and such notice shall state the reduced
Conversion Price and the period it will be in effect.
(i) If any action would require adjustment of the Conversion Price
pursuant to more than one of the provisions described above, only one
adjustment shall be made and such adjustment shall be the amount of adjustment
that has the highest absolute value to the Holders of the 1998A Debentures.
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<PAGE> 26
SECTION 6.5 Fundamental Change.
(a) In the event that the Company is a party to any transaction
(including, without limitation, a merger other than a merger that does not
result in a reclassification, conversion, exchange or cancellation of Common
Stock), consolidation, continuance, sale of all or substantially all of the
assets of the Company, recapitalization, holding company reorganization (whether
pursuant to Section 251(g) of the Delaware General Corporation Law or
otherwise) or reclassification of Common Stock (other than a change in par
value, or from par value to no par value, or from no par value to par value or
as a result of a subdivision or combination of Common Stock) or any compulsory
share exchange (each of the foregoing being referred to as a "Transaction"), in
each case, as a result of which shares of Common Stock shall be converted into
the right to receive, or shall be exchanged for, (i) in the case of any
Transaction other than a Transaction involving a Stock Fundamental Change (and
subject to funds being legally available for such purpose under applicable law
at the time of such conversion), securities, cash or other property, each 1998A
Debenture shall thereafter be convertible into the kind and, in the case of a
Transaction which does not involve a Fundamental Change, amount of securities,
cash and other property receivable upon the consummation of such Transaction by
a holder of that number of shares of Common Stock into which a 1998A Debenture
was convertible immediately prior to such Transaction, or (ii) in the case of a
Transaction involving a Stock Fundamental Change (and subject to funds being
legally available for such purpose under applicable law at the time of such
conversion), securities, cash or other property, each 1998A Debenture shall
thereafter be convertible (in the manner described herein) into Common Stock of
the kind received by holders of Common Stock (but in each case after giving
effect to any adjustment discussed in subsections (b) and (c) relating to a
Fundamental Change if such Transaction constitutes a Fundamental Change). The
Holders of 1998A Debentures will have no voting rights with respect to any
Transaction described in this section.
(b) If any Fundamental Change occurs, then the Conversion Price in
effect will be adjusted immediately after such Fundamental Change as described
in subsection (c) below. In addition, in the event of a Stock Fundamental
Change, each 1998A Debenture shall be convertible solely into Common Stock of
the kind received by holders of Common Stock as a result of such Stock
Fundamental Change.
(c) The Conversion Price in the case of any Transaction involving a
Fundamental Change will be adjusted immediately after such Fundamental Change
as follows:
(1) in the case of a Non-Stock Fundamental Change, the
Conversion Price immediately following such Non-Stock Fundamental
Change will be the lower of (A) the Conversion Price in effect
immediately prior to such Non-Stock Fundamental Change (after giving
effect to any other prior adjustments), and (B) the result obtained by
multiplying the greater of the Applicable Price and the then
applicable Reference Market Price by a fraction of which the numerator
will be 100 and of which the denominator will be an amount based upon
the date such Non-Stock Fundamental Change occurs. For the 12-month
period beginning __________, 1998, the denominator used in the
immediately preceding sentence will be ____, and such denominator will
decrease by ___ during each successive 12-month period, provided that
in no event shall the denominator be less than 100; and
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<PAGE> 27
(2) in the case of a Stock Fundamental Change, the
Conversion Price immediately following such Stock Fundamental Change
will be the Conversion Price in effect immediately prior to such Stock
Fundamental Change (after giving effect to any other prior adjustments)
as adjusted by multiplying such Conversion Price by a fraction, of
which the numerator will be the Purchaser Stock Price and of which the
denominator will be the Applicable Price; provided, however, that in
the event of a holding company reorganization of the Company (whether
effected in accordance with Section 251(g) of the Delaware General
Corporation Law or otherwise) or in the event of a Stock Fundamental
Change in which (A) 100% of the value of the consideration received by
a holder of Common Stock is Common Stock of the successor, acquirer or
other third party (and cash, if any, is paid only with respect to any
fractional interests in such Common Stock resulting from such Stock
Fundamental Change) and (B) all of the Common Stock will have been
exchanged for, converted into, or acquired for Common Stock (and cash
with respect to fractional interests) of the successor, acquiror, or
other third party, the Conversion Price immediately following such
Stock Fundamental Change will be the Conversion Price in effect
immediately prior to such Stock Fundamental Change as adjusted by
multiplying such Conversion Price by a fraction, of which the numerator
will be one and the denominator will be the number of shares of Common
Stock of the holding company, successor, acquiror or other third party
received by a holder of one share of Common Stock as a result of such
Stock Fundamental Change.
SECTION 6.6 Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price and shall
prepare a certificate signed by the Chief Financial Officer or the Treasurer of
the Company setting forth the adjusted Conversion Price and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Trustee, the Conversion Agent,
the Property Trustee and the transfer agent for the Trust Securities and the
1998A Debentures; and
(b) a notice stating the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall as soon as practicable be
mailed by the Company to all record holders of Trust Securities and the 1998A
Debentures at their last addresses as they appear upon the transfer books of
the Company and the Trust and the Securities Registrar.
SECTION 6.7 Prior Notice of Certain Events.
In case:
(i) the Company shall (A) declare any dividend (or any other
distribution) on its Common Stock, other than (x) a dividend payable in shares
of Common Stock or (y) a dividend payable in cash that would not require an
adjustment pursuant to Section 6.4(c) or (d) or (B) authorize a tender or
exchange offer that would require an adjustment pursuant to Section 6.4(e) (or
shall amend any such tender or exchange offer to change the maximum number of
shares being sought or the amount or type of consideration being offered
(including by exchange) therefor);
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<PAGE> 28
(ii) the Company shall authorize the granting to all holders of Common
Stock of rights or warrants to subscribe for or purchase any shares of Capital
Stock of any class or series or of any other rights or warrants;
(iii) of any reclassification of Common Stock (other than a
subdivision or combination of the outstanding Common Stock, or a change in par
value, or from par value to no par value, or from no par value to par value),
or of any consolidation or merger to which the Company is a party and for which
approval of stockholders of the Company shall be required, or of the sale or
transfer of all or substantially all of the assets of the Company or of any
compulsory share exchange whereby the Common Stock is converted into other
securities, cash or other property; or
(iv) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company, (A) shall if any Trust Securities are outstanding under the
Declaration, cause to be filed with the transfer agent for the Trust
Securities, and shall cause to be mailed to the holders of record of the Trust
Securities, at their last addresses as they shall appear upon the transfer
books of the Trust or (B) shall cause to be mailed to all Holders at their last
addresses as they shall appear in the Security Register, at least 15 days prior
to the applicable record, effective or expiration date hereinafter specified, a
notice stating (x) the date on which a record (if any) is to be taken for the
purpose of such dividend, distribution, rights or warrants or, if a record is
not to be taken, the date as of which the holders of Common Stock of record to
be entitled to such dividend, distribution, rights or warrants are to be
determined, (y) the date on which such reclassification, consolidation, merger,
sale, transfer, share exchange, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up or (z) the date on which such tender or
exchange offer (other than an exchange offer contemplated by clause (y) above)
commenced, the date on which such tender or exchange offer is scheduled to
expire unless extended, the consideration offered and the other material terms
thereof (or the material terms of any amendment thereto); but no failure to
mail such notice or any defect therein or in the mailing thereof shall affect
the validity of the corporate action required to be specified in such notice.
SECTION 6.8 Dividend Reinvestment and Other Plans.
Notwithstanding anything to the contrary in this Article, no
adjustment of the Conversion Price will be made upon the issuance of any shares
of Common Stock of the Company pursuant to any present or future plan providing
for the reinvestment of dividends or interest payable on securities of the
Company and the investment of additional optional amounts in shares of Common
Stock of the Company under any such plan, or the issuance of any shares of
Common Stock or options or rights to purchase such shares pursuant to any
present or future employee benefit plan or program of the Company or pursuant
to any option, warrant, right, or exercisable, exchangeable or
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<PAGE> 29
convertible security which does not constitute an issuance to all holders of
Common Stock or a class thereof, of rights or warrants entitling holders of
such rights or warrants to subscribe for or purchase Common Stock at less than
the Current Market Price.
SECTION 6.9 Certain Additional Rights.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on its Common Stock referred to in Section 6.4(c) or 6.4(d)
(including, without limitation, dividends or distributions referred to in the
last sentence of Section 6.4(c)), the Holders of the 1998A Debentures upon the
conversion thereof subsequent to the close of business on the date fixed for
the determination of stockholders entitled to receive such distribution and
prior to the effectiveness of the Conversion Price adjustment in respect of
such distribution, shall also be entitled to receive for each share of Common
Stock into which the 1998A Debentures are converted, the portion of the shares
of Common Stock, rights, warrants, evidences of indebtedness, shares of Capital
Stock, cash and assets so distributed applicable to one share of Common Stock;
provided, however, that, at the election of the Company with respect to all
Holders so converting, the Company may, in lieu of distributing to such Holder
any portion of such distribution not consisting of cash or securities of the
Company, pay such Holder an amount in cash equal to the fair market value
thereof (as determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution). If any
conversion of 1998A Debentures described in the immediately preceding sentence
occurs prior to the payment date for a distribution to holders of Common Stock
which the Holder of 1998A Debentures so converted is entitled to receive in
accordance with the immediately preceding sentence, the Company may elect (such
election to be evidenced by a Board Resolution) to distribute to such Holder a
due bill for the shares of Common Stock, rights, warrants, evidences of
indebtedness, shares of Capital Stock, cash or assets to which such Holder is
so entitled, provided, that such due bill (i) meets any applicable requirements
of the principal national securities exchange or other market on which the
Common Stock is then traded and (ii) requires payment or delivery of such
shares of Common Stock, rights, warrants, evidences of indebtedness, shares of
Capital Stock, cash or assets no later than the date of payment or delivery
thereof to holders of shares of Common Stock receiving such distribution.
SECTION 6.10 Reservation of Common Stock; Taxes.
(a) The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized and unissued Common Stock solely
for issuance upon the conversion of the 1998A Debentures, such number of shares
of Common Stock as shall from time to time be issuable upon the conversion of
all the 1998A Debentures then outstanding. Notwithstanding the foregoing, the
Company shall be entitled to deliver upon conversion of 1998A Debentures shares
of Common Stock reacquired and held in the treasury of the Company (in lieu of
the issuance of authorized and unissued shares of Common Stock) so long as any
such treasury shares are free and clear of all liens, charges, security
interests or encumbrances. Any shares of Common Stock issued upon conversion of
the 1998A Debentures shall be duly authorized, validly issued and fully paid
and nonassessable. The Conversion Agent shall deliver the shares of Common
Stock received upon
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<PAGE> 30
conversion of the 1998A Debentures to the converting Holder free and clear of
all liens, charges, security interests and encumbrances, except for United
States withholding taxes. The Company shall use its commercially reasonable
efforts to obtain and keep in force such governmental or regulatory permits or
other authorizations as may be required by law, and shall comply with all
applicable requirements as to registration or qualification of the Common Stock
(and all requirements to list the Common Stock issuable upon conversion of
1998A Debentures that are at the time applicable), in order to enable the
Company to lawfully issue Common Stock to each Holder upon conversion of the
1998A Debentures.
(b) The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
1998A Debentures. The Company shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issue and
delivery of shares of Common Stock in a name other than that in which the 1998A
Debentures so converted were registered, and no such issue or delivery shall be
made unless and until the Person requesting such issue has paid to the
Conversion Agent the amount of any such tax, or has established to the
satisfaction of the Conversion Agent that such tax has been paid.
(c) Nothing in this Article shall limit the requirement of the
Company to withhold taxes pursuant to the terms of the 1998A Debentures or as
set forth in the Subordinated Indenture (including this First Supplemental
Indenture) or otherwise require the Trustee or the Company to pay any amounts
on account of such withholdings.
SECTION 6.11 Trustee Not Responsible for Determining Conversion Price or
Adjustments.
Neither the Trustee nor any Conversion Agent shall at any time be
under any duty or responsibility to any Holder of any 1998A Debenture to
determine whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or whether any
indenture supplemental hereto needs be entered into. Neither the Trustee nor
any Conversion Agent shall be accountable with respect to the validity or value
(or the kind or amount) of any shares of Common Stock or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any 1998A Debenture; and neither the Trustee nor any Conversion Agent makes any
representation with respect thereto. Neither the Trustee nor any Conversion
Agent shall be responsible for any failure of the Company to make any cash
payment or to issue, transfer or deliver any shares of Common Stock or stock
certificates or other securities or property upon the surrender of any 1998A
Debenture for the purpose of conversion. All 1998A Debentures delivered for
conversion shall be delivered to the Trustee to be canceled by or at the
discretion of the Trustee, which shall dispose of the same as provided in
Section 3.9 of the Subordinated Indenture.
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<PAGE> 31
ARTICLE VII
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 7.1 Extension of Interest Payment Period.
As long as an Event of Default under Section 5.1 of the Subordinated
Indenture shall not have occurred and be continuing, the Company shall have the
right, at any time and from time to time during the term of the 1998A
Debentures, to defer payments of interest by extending the interest payment
period of such 1998A Debentures for a period not exceeding 20 consecutive
quarters as provided in the form of 1998A Debenture attached as Exhibit A.
SECTION 7.2 Additional Sums.
In the event that (a) the Property Trustee is the Holder of all of the
Outstanding 1998A Debentures, (b) a Trust Tax Event in respect of the Trust
shall have occurred and be continuing and (c) the Company shall not have (i)
redeemed or exchanged all the 1998A Debentures pursuant to Section 5.2 or 5.3,
respectively, or (ii) terminated the Trust pursuant to Section 9.1 of the
Declaration, the Company shall pay Additional Sums to the Trust (and its
permitted successors or assigns under the Declaration) for so long as the
Property Trustee (or its permitted successor or assignee) is the registered
holder of the 1998A Debentures. Whenever in this First Supplemental Indenture,
the Subordinated Indenture or the 1998A Debentures there is a reference in any
context to the payment of principal of or interest on the 1998A Debentures,
such mention shall be deemed to include mention of the payments of the
Additional Sums provided for in this paragraph to the extent that, in such
context, Additional Sums are, were or would be payable in respect thereof
pursuant to the provisions of this paragraph and express mention of the payment
of Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such
express mention is not made; provided, however, that the extension of an
interest payment period pursuant to Section 7.1 shall not extend the payment of
any Additional Sums that may be due and payable during such interest payment
period.
ARTICLE VIII
LIMITATION OF TRANSACTIONS, COVENANTS AS TO TRUST;
CERTAIN CONVERSIONS DEEMED PAYMENT
SECTION 8.1 Limitation of Transactions.
So long as any 1998A Debentures remain outstanding, if (a) an Event of
Default has occurred and is continuing or there shall have occurred and be
continuing any event of which the Company has actual knowledge that, with the
giving of notice or lapse of time, or both, would constitute an Event of
Default, (b) the Company is in default of its obligations under the Trust
Preferred Securities Guarantee (as defined in the Declaration) or the Trust
Common Securities Guarantee (as defined in
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<PAGE> 32
the Declaration), or (c) the Company shall have given notice of its election to
defer payments of interest on the 1998A Debentures by extending the interest
payment period as provided in Section 7.1 and such period or any extension
thereof shall be continuing, then, during such period, the Company shall not
(i) declare or pay dividends on, make distributions with respect to, or redeem,
purchase or acquire, or make a liquidation payment with respect to any of its
Capital Stock (except for (x) dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase shares of its Capital
Stock and conversions or exchanges of Common Stock of one class for Common
Stock of another class and (y) redemptions or purchases of any rights pursuant
to the Rights Agreement and the issuance of Capital Stock pursuant to such
rights) or (ii) make any payments of principal, interest or premium, if any, on
or repay or repurchase or redeem any debt securities (including guarantees of
indebtedness for money borrowed) of the Company that rank pari passu with or
junior to the 1998A Debentures (other than (u) any redemption, liquidation,
interest, principal or guarantee payment by the Company where the payment is
made by way of securities (including Capital Stock) that rank pari passu with
or junior to the securities on which such redemption, interest, principal or
guarantee payment is being made, (v) payments under the Trust Preferred
Securities Guarantee (as defined in the Declaration) or the Trust Common
Securities Guarantee (as defined in the Declaration), (w) purchases of Common
Stock related to the issuance of Common Stock under any of the Company's
benefit plans for its directors, officers or employees, (x) as a result of a
reclassification of the Company's Capital Stock or the exchange or conversion
of one series or class of the Company's Capital Stock for another series or
class of the Company's Capital Stock, (y) the purchase of fractional interests
in shares of the Company's Capital Stock pursuant to the conversion or exchange
provisions of such Capital Stock or the security being converted or exchanged
and (z) redemptions or purchases of any rights pursuant to the Rights Agreement
and the issuance of Capital Stock pursuant to such rights).
SECTION 8.2 Covenants As To Trust.
The Company covenants with each Holder of the 1998A Debentures that it
will (i) for so long as Trust Preferred Securities are outstanding, (a) not
convert the 1998A Debentures except pursuant to a notice of conversion delivered
to the Conversion Agent under the Declaration by a holder of Trust Securities;
(b) maintain directly or indirectly 100% ownership of the Trust Common
Securities, provided, that any permitted successor of the Company under the
Subordinated Indenture as amended by this First Supplemental Indenture may
succeed to the Company's ownership of the Trust Common Securities; and (c) not
voluntarily terminate, wind-up or liquidate the Trust, except in connection with
(A) a distribution of the 1998A Debentures to the holders of Trust Preferred
Securities in liquidation of the Trust, (B) the redemption of all Trust
Securities or (C) mergers, consolidations or amalgamations permitted by the
Declaration; (ii) use its commercially reasonable efforts, consistent with the
terms and provisions of the Declaration to cause the Trust to remain classified
as a grantor trust, and not taxable as a corporation, for United States federal
income tax purposes; (iii) deliver shares of Common Stock upon an election by a
holder of Debentures to convert such Debentures into or for Common Stock; and
(iv) honor all obligations relating to the conversion or exchange of the Trust
Securities into or for Common Stock or 1998A Debentures.
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<PAGE> 33
SECTION 8.3 Certain Conversions Deemed Payment.
For the purposes of Article XIV of the Subordinated Indenture only,
(1) the issuance and delivery of junior securities upon conversion of 1998A
Debentures in accordance with Article VI hereof shall not be deemed to
constitute a payment or distribution on account of the principal of or premium
or interest on 1998A Debentures or on account of the purchase or other
acquisition of 1998A Debentures, and (2) the payment, issuance or delivery of
cash, property or securities (other than junior securities) upon conversion of
a 1998A Debenture shall be deemed to constitute payment on account of the
principal of such 1998A Debenture. For the purposes of this Section 8.3, the
term "junior securities" means (a) shares of any stock of any class of the
Company and (b) securities of the Company which are subordinated in right of
payment to the prior payment in full of all Senior Debt which may be
outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the 1998A
Debentures are so subordinated as provided in Article XIV of the Subordinated
Indenture. Nothing contained in this Article VIII or elsewhere in this First
Supplemental Indenture, the Subordinated Indenture or in the 1998A Debentures
is intended to or shall impair, as among the Company, its creditors other than
holders of Senior Debt and the Holders of the 1998A Debentures, the right,
which is absolute and unconditional, of the Holder of any 1998A Debenture to
convert such 1998A Debenture in accordance with Article VI hereof.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Conflict of Any Provision with Trust Indenture Act of 1939.
If any provision of this First Supplemental Indenture qualifies or
conflicts with the duties imposed by Section 318(c) of the Trust Indenture Act
of 1939, as amended, the imposed duties shall control.
SECTION 9.2 New York Law to Govern.
THIS SUPPLEMENTAL INDENTURE AND THE 1998A DEBENTURES SHALL BE DEEMED
TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE STATE OF NEW YORK, AND
FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SAID STATE.
SECTION 9.3 Counterparts.
This First Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
-30-
<PAGE> 34
SECTION 9.4 Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 9.5 Severability of Provisions.
In case any provision in this First Supplemental Indenture or in the
1998A Debentures shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 9.6 Successors and Assigns.
All covenants and agreements in this First Supplemental Indenture by
the parties hereto shall bind their respective successors and assigns and inure
to the benefit of their respective successors and assigns, whether so expressed
or not.
SECTION 9.7 Benefit of First Supplemental Indenture.
Nothing in this First Supplemental Indenture, express or implied,
shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder, and the Holders of
the 1998A Debentures, any benefit or any legal or equitable right, remedy or
claim under this First Supplemental Indenture.
SECTION 9.8 Acceptance by Trustee.
The Trustee accepts the amendments to the Subordinated Indenture
effected by this First Supplemental Indenture and agrees to execute the trusts
created by the Subordinated Indenture as hereby amended or supplemented, but
only upon the terms and conditions set forth in the Subordinated Indenture as
so amended or supplemented. Without limiting the generality of the foregoing,
the Trustee assumes no responsibility for the correctness of the recitals
contained herein, which shall be taken as the statements of the Company and
except as provided in the Subordinated Indenture the Trustee shall not be
responsible or accountable in any way whatsoever for or with respect to the
validity or execution or sufficiency of this First Supplemental Indenture and
the Trustee makes no representation with respect thereto.
SECTION 9.9 Ratification of Subordinated Indenture; First Supplemental
Indenture Controls; Scope of Subordinated Indenture.
(a) The Subordinated Indenture, as supplemented by this First
Supplemental Indenture, is in all respects ratified and confirmed, and this
First Supplemental Indenture shall be deemed part of the Subordinated Indenture
in the manner and to the extent herein and therein provided. The provisions of
this First Supplemental Indenture shall, subject to Section 9.1 hereof,
supersede the
-31-
<PAGE> 35
provisions of the Subordinated Indenture to the extent the Subordinated
Indenture is inconsistent herewith.
(b) The changes, modifications and supplements to the Subordinated
Indenture effected by this First Supplemental Indenture shall be applicable
only with respect to, and govern the terms of, the 1998A Debentures, and shall
not apply to any other Securities which may be issued under the Subordinated
Indenture unless a supplemental indenture with respect to such other Securities
specifically incorporates such changes, modifications and supplements.
-32-
<PAGE> 36
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
EL PASO NATURAL GAS COMPANY
By:
------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
------------------------------
Name:
Title:
-33-
<PAGE> 1
EXHIBIT 2.3
[FORM OF FACE OF SECURITY]
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT THE FOLLOWING --
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.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
No. ___________________ CUSIP NO. ___________________
EL PASO NATURAL GAS COMPANY
___% SUBORDINATED CONVERTIBLE DEBENTURE DUE 2028
EL PASO NATURAL GAS COMPANY, a Delaware corporation (the "Company,"
which term includes any successor corporation under the Subordinated Indenture
hereinafter referred to), for value received, hereby promises to pay to
________________________________, or registered assigns, the principal sum of
________________________________________________________________________________
______________ ($________________________ ) [or such greater or lesser
principal sums as shall be noted on the
1
<PAGE> 2
Schedule attached hereto]* on _________________________, 2028 and to pay
interest on said principal sum from ________________, 1998 or from the most
recent interest payment date (each such date, an "Interest Payment Date") to
which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on __________, __________, __________
and __________ of each year, commencing ________________________________, 1998,
at the rate of _______% per annum plus Additional Interest and Additional Sums
(as defined in Section 1.1 of the Subordinated Indenture) if any, until the
principal hereof shall have become due and payable, and on any overdue
principal. The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30- day months. In the event that any
date on which interest is payable on this Security is not a Business Day, then
a payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day (and without any interest or other payment
in respect of any such delay), in each case with the same force and effect as
if made on the date the payment was originally payable. A "Business Day" shall
mean any day other than a day on which banking institutions in the City of New
York are authorized or required by law or executive order to close. The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Subordinated Indenture, be
paid to the Person in whose name this Security (or one or more Predecessor
Securities, as defined in the Subordinated Indenture) is registered at the
close of business on the Regular Record Date for such interest installment,
which shall be the close of business on the fifteenth day of the month of such
Interest Payment Date. Any such interest installment not so punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice of which shall be given to Holders of
Securities not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements
of any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Subordinated Indenture.
The Company shall have the right at any time during the term of this
Security, from time to time, to extend the interest payment period of such
Security for a period not exceeding 20 consecutive quarters from the date of
issue or the most recent date that interest has been paid or been duly provided
for (an "Extension Period"). During any Extension Period, interest will
compound quarterly and the Company shall have the right to make partial
payments of interest on any Interest Payment Date. At the end of any Extension
Period the Company shall pay all interest then accrued and unpaid (together
with Additional Interest thereon to the extent that payment of such interest is
permitted by applicable law and Additional Sums, if any) to the Holder(s) in
whose names the Securities are registered on the Regular Record Date preceding
the end of the Extension Period.
- ----------------------------------
*Insert if Global Security or if held by the Property Trustee.
2
<PAGE> 3
"Additional Interest" means interest that shall accrue on any interest on the
Securities that is in arrears for more than one quarter or not paid during an
Extension Period, which in either case shall accrue at the rate per annum borne
by this Security compounded quarterly. Prior to the termination of any such
Extension Period, the Company may further extend the interest payment period,
provided that such Extension Period together with all such previous and further
extensions thereof shall not exceed 20 consecutive quarters or extend beyond
the Maturity of this Security or end on a date other than an Interest Payment
Date. Upon the termination of any Extension Period and upon the payment of all
accrued and unpaid interest and any Additional Interest then due, the Company
may select a new Extension Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extension Period except at the end
thereof and no default under this Security or Event of Default shall be deemed
to occur solely as a result of an Extension Period. The Company shall give the
Holder of this Security and the Trustee notice of its selection of an Extension
Period at least one Business Day prior to the earlier of (i) the Interest
Payment Date and (ii) the date that El Paso Energy Capital Trust I is required
to give notice to the New York Stock Exchange or other applicable self-
regulatory organization or to holders of the Trust Securities of the record
date or the date distributions by such Trust are payable, but in any event not
less than one Business Day prior to such record date.
Payment of the principal of and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in New York,
New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made (i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or (ii) by wire transfer in
immediately available funds to such account as may be designated by the Person
entitled thereto as specified in the Security Register, 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.
[If a Global Security, insert-- Payment of the principal of [(and
premium, if any)] and [if applicable, insert -- any such] interest on this
Security will be made by transfer of immediately available funds to a bank
account in _______________ designated by the Holder in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts.]
The indebtedness evidenced by this Security is, to the extent provided
in the Subordinated Indenture, subordinate and subject in right of payment to
the prior payment in full of all Senior Debt, and this Security is issued
subject to the provisions of the Subordinated Indenture with respect thereto.
Each Holder of this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his behalf
to take such action as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof,
waives all notice of the acceptance of the subordination provisions contained
herein and in the Subordinated
3
<PAGE> 4
Indenture by each holder of Senior Debt, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of the Subordinated
Indenture summarized on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, El Paso Natural Gas Company has caused this
instrument to be duly executed under its corporate seal.
Dated: _______________________________, _______________
EL PASO NATURAL GAS COMPANY
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
4
<PAGE> 5
[FORM OF CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein
referred to in the within mentioned Subordinated Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
------------------------------------
Authorized Officer
5
<PAGE> 6
[FORM OF REVERSE OF SECURITY]
This Security is one of a duly authorized issue of Securities of the
Company, designated as its ________% Subordinated Convertible Debentures Due
2028 (herein called the "Securities"), limited in aggregate principal amount to
$_________, issued under a Subordinated Indenture, dated as of
________________________________, 1998, as supplemented by that certain First
Supplemental Indenture (the "Supplemental Indenture"), dated as of
_________________, 1998 (collectively referred to herein as the "Subordinated
Indenture"), between the Company and The Chase Manhattan Bank, as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Subordinated Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Securities, and of the terms upon which the
securities are, and are to be, authenticated and delivered.
All terms used in this Security which are defined in the Subordinated
Indenture shall have the meanings assigned to them in the Subordinated
Indenture.
The Company shall have the right to redeem this Security, at the
option of the Company, upon not less than 30 nor more than 60 days' notice,
without premium or penalty, in whole or in part at any time on or after
, 2002 (an "Optional Redemption") at the
following prices (expressed as percentages of the principal amount of the
Securities) (the "Optional Redemption Price") together with accrued and unpaid
interest, including Additional Interest and Additional Sums to, but excluding,
the redemption date, if redeemed during the 12- month period beginning
:
<TABLE>
<CAPTION>
Year Redemption Price
---- ----------------
<S> <C>
2002 %
2003
2004
2005
2006
2007
2008 and thereafter 100%
</TABLE>
6
<PAGE> 7
If the Securities are redeemed on any ,
, , or , accrued
and unpaid interest (including accrued and unpaid Additional Interest, if any)
shall be payable to holders of record on the relevant record date.
In addition, if at any time prior to the Conversion Expiration Date
less than ten percent (10%) in principal amount of the Securities originally
issued by the Company remain outstanding, such Subordinated Debentures shall be
redeemable, at the option of the Company, exercisable at any time in whole but
not in part, at a Redemption Price equal to the aggregate unpaid principal
amount thereof, and all accrued and unpaid interest due thereon.
So long as the corresponding Trust Securities are outstanding, the
proceeds from the redemption of any of the Securities will be used by the
Property Trustee to redeem Trust Securities. In addition, so long as the Trust
Securities are outstanding, the proceeds from any repayment or prepayment of
the Securities will be used to redeem Trust Securities in accordance with the
Declaration.
If the Securities are only partially redeemed by the Company pursuant
to an Optional Redemption, the Securities will be redeemed pro rata or by lot
or by any other method utilized by the Trustee;
In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof, except in
the case of a Global Security in which case the Trustee may reflect a reduction
in the principal amount of such Global Security by making a notation of same in
the schedule included in such Global Security.
In case an Event of Default, as defined in the Subordinated Indenture,
shall have occurred and be continuing, the principal of all of the Securities
and the interest accrued thereon may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject to
the conditions provided in the Subordinated Indenture.
If a Trust Special Event (as defined herein) shall occur and be
continuing, this Security shall be exchangeable for Trust Securities in
accordance with Section 5.3 of the Supplemental Indenture, unless a Trust
Special Event is a Trust Tax Event (as defined herein), in which case this
Security may be redeemed by the Company in accordance with Section 5.2 of the
Supplemental Indenture.
"Trust Investment Company Event" means that the Property Trustee of
the Trust, in its capacity on behalf of the El Paso Energy Capital Trust I (the
"Trust"), shall have received an opinion of independent legal counsel having a
national tax and securities practice and that is experienced in such matters
(which opinion of counsel shall not have been rescinded by such law firm) to
the effect that as a result of the occurrence on or after ____________, 1998 of
a change in law or regulation or a change in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority, there is more than an unsubstantial risk that the Trust
7
<PAGE> 8
is or, within 90 days after such date, will be considered an "investment
company" which is required to be registered under the Investment Company Act of
1940.
"Trust Special Event" means the occurrence of a Trust Investment
Company Event or a Trust Tax Event.
"Trust Tax Event" means the receipt by the Property Trustee of the
Trust, on behalf of the Trust, of an opinion of counsel, rendered by a law firm
having a national tax and securities practice (which opinion of counsel shall
not have been rescinded by such law firm) to the effect that there has been (a)
an amendment to, change or announced proposed change in the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, (b) a judicial decision interpreting
applying or clarifying such laws or regulations, (c) an administrative
pronouncement or action that represents an official position (including a
clarification of an official position) of the governmental authority or
regulatory body making such administrative pronouncement or taking such action,
or (d) a threatened challenge asserted in connection with an audit of the
Company or any of its subsidiaries, or the Trust, or a threatened challenge
asserted in writing against any other taxpayer that has raised capital through
the issuance of securities that are substantially similar to the Securities or
the Trust Preferred Securities, which amendment or change is adopted or which
decision, pronouncement or proposed change is announced or which action,
clarification or challenge occurs on or after ____________________, 1998 and
that there is more than an insubstantial risk that (a) the Trust is or, within
90 days after such date, will be subject to United States federal income tax
with respect to income accrued or received on the 1998A Debentures, (b) the
Trust is or, within 90 days after such date, will be subject to more than a de
minimis amount of other taxes, duties, assessments or other governmental
charges or (c) interest payable by the Company on the 1998A Debentures is not
or, within 90 days after such date, will not be deductible for United States
federal income taxes.
The Holder of this Security has the right, exercisable at any time
through the close of business (New York time) on ____________, 2028 (or, in the
case of this Security being called for redemption, prior to the close of
business on the Business Day prior to the corresponding redemption date), to
convert the principal amount thereof (or any portion thereof that is an
integral multiple of $50) into shares of Common Stock at the initial conversion
rate of ______ shares of Common Stock for each $50 in aggregate principal
amount of the Security (equivalent to a Conversion Price of $______ per share
of Common Stock), subject to adjustment under certain circumstances. To
convert this Security, the Holder hereof must (a) complete and sign a notice of
conversion substantially in the form attached hereto, (b) surrender this
Security to a Conversion Agent, (c) furnish appropriate endorsements or
transfer documents if required by the Conversion Agent and (d) pay any transfer
or similar tax, if required.
If an Event of Default with respect to the Securities shall occur and
be continuing, the principal of the Securities may be declared due and payable
in the manner, with the effect and subject to the conditions provided in the
Subordinated Indenture.
8
<PAGE> 9
The Subordinated Indenture contains provisions that relieve the
Company from the obligation to comply with certain restrictive covenants of the
Subordinated Indenture and for satisfaction and discharge at any time of the
entire indebtedness of this Security upon compliance by the Company with
certain conditions set forth in the Subordinated Indenture.
The Subordinated 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 debt securities
of each series to be affected under the Subordinated 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 debt securities of all series to
be affected (voting as one class). The Subordinated Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount
of the Outstanding debt securities of all affected series (voting as one
class), on behalf of the Holders of all debt securities of such series, to
waive compliance by the Company with certain provisions of the Subordinated
Indenture. The Subordinated Indenture permits, with certain exceptions as
therein provided, the Holders of a majority in principal amount of debt
securities of any series then Outstanding to waive defaults under the
Subordinated 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 thereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Subordinated Indenture and no provision of
this Security or of the Subordinated Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Subordinated 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 New York, New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any of their respective agents may treat
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security shall be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Securities are issuable only in registered form without coupons in
denominations of $50 and any integral multiple thereof. As provided in the
Subordinated Indenture and subject to certain
9
<PAGE> 10
limitations therein set forth, Securities are exchangeable for a like aggregate
principal amount of Securities of a different authorized denomination, as
requested by the Holder surrendering the same.
The Company and, by its acceptance of this Subordinated Debenture or a
beneficial interest herein, the Holder of, and any Person that acquires a
beneficial interest in, this Subordinated Debenture agree that for United
States federal, state and local tax purposes it is intended that this
Subordinated Debenture constitutes indebtedness.
No recourse under or upon any obligation, covenant or agreement of or
contained in the Subordinated Indenture or of or contained in any of the
Securities, 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, employee
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 by each Holder 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 issuance of the Securities and the execution of the
Subordinated Indenture.
THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
ASSIGNMENT FORM
To assign this Subordinated Debenture or the capital stock issuable
upon conversion of this Subordinated Debenture in the event the Notice of
Conversion is given, fill in the form below:
(I) or (we) assign or transfer this Subordinated Debenture or such
capital stock (as the case may be) to
(Insert assignee's social security or tax identification number)
____________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ___________________ agent to transfer this Subordinated
Debenture or such capital stock on the books of the Company. The agent may
substitute another to act for him.
Your Signature:____________________________________
(Sign exactly as your name appears on the other side of this
Subordinated Debenture)
Date: _________________________
10
<PAGE> 11
SIGNATURES
Signature Guarantee: * ____________________________________________
- -----------------
* Signature must be guaranteed by an institution which is a member of
one of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee programs
acceptable to the Trustee.
11
<PAGE> 12
FORM OF NOTICE OF CONVERSION
To: El Paso Natural Gas Company
The Chase Manhattan Bank, as Conversion Agent
The undersigned owner of this Subordinated Debenture hereby
irrevocably exercises the option to convert this Subordinated Debenture, or the
portion designated, and directs that the shares issuable and deliverable upon
conversion, together with any check in payment for fractional shares, be issued
in the name of and delivered to the undersigned, unless a different name has
been indicated in the assignment above. If shares are to be issued in the name
of a person other than the undersigned, the undersigned will pay all transfer
taxes payable with respect thereto.
<TABLE>
<S> <C> <C>
Date:
-------------------------------
in whole
--------
in part Portions of Subordinated Debenture to
--------- be converted ($50 or integral multiples
thereof):
$______________________________
Signature (for conversion only):
------------------------------
------------------------------
------------------------------
------------------------------
Please Print or Typewrite Name and
Address, Including Zip Code, and
Social Security or Other Identifying
Number
------------------------------
------------------------------
------------------------------
</TABLE>
Signature Guarantee: *
------------------------------
- -----------------
* Signature must be guaranteed by an institution which is a member of
one of the following recognized Signature Guaranty Programs: (i) The
securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee programs
acceptable to the Trustee.
12
<PAGE> 13
SCHEDULE*
The notations on the following table evidence decreases in the
principal sum of this Security resulting from conversions or increases
resulting from the exercise of the Over-Allotment Option. As used herein, the
term "Over-Allotment Option" means that certain option to purchase up to
900,000 additional Trust Preferred Securities granted by the Trust to the
Underwriters pursuant to the Underwriting Agreement, dated _________________,
1998, among the Company, the Trust and the Underwriters (as defined in the
Supplemental Indenture).
<TABLE>
<CAPTION>
Decrease or Increase in Principal Sum Notation Made by
Principal Sum remaining after Decrease or Security Registrar
Increase
<S> <C> <C>
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
</TABLE>
- --------------------------
* Include in Global Security or Security held by Property Trustee.
13
<PAGE> 1
EXHIBIT 2.5
Draft of 2/17/98
================================================================================
AMENDED AND RESTATED
DECLARATION OF TRUST
AMONG
EL PASO NATURAL GAS COMPANY,
AS SPONSOR,
THE CHASE MANHATTAN BANK,
AS PROPERTY TRUSTEE,
CHASE MANHATTAN BANK DELAWARE,
AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES
NAMED HEREIN,
--------------------
DATED AS OF ____________ ___, 1998
--------------------
EL PASO ENERGY CAPITAL TRUST I
================================================================================
<PAGE> 2
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
<S> <C> <C>
310 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9(a)
316 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Annex I
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6(e)
</TABLE>
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* This Cross-Reference Table does not constitute part of the Declaration
and shall not affect the interpretation of any of its terms or
provisions.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.2 Lists of Holders of Trust Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.3 Reports by the Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.4 Periodic Reports to Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.5 Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.6 Trust Enforcement Events; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.7 Trust Enforcement Event; Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE III
ORGANIZATION
SECTION 3.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.2 Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.3 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.4 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.5 Title to Property of the Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.6 Powers and Duties of the Administrative Trustees . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees . . . . . . . . . . . . . . . . . . 20
SECTION 3.8 Powers and Duties of the Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee . . . . . . . . . . . . . . . 23
SECTION 3.10 Certain Rights of the Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.11 Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.12 Execution of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.13 Not Responsible for Recitals or Issuance of Trust Securities . . . . . . . . . . . . . . 27
SECTION 3.14 Duration of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.15 Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.16 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE IV
SPONSOR
SECTION 4.1 Responsibilities of the Sponsor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.2 Indemnification and Expenses of the Trustee . . . . . . . . . . . . . . . . . . . . . . . 31
</TABLE>
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<TABLE>
<S> <C>
ARTICLE V
TRUST COMMON SECURITIES HOLDER
SECTION 5.1 Company's Purchase of Trust Common Securities . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.2 Covenants of the Trust Common Securities Holder . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE VI
TRUSTEES
SECTION 6.1 Number of Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.2 Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.3 Property Trustee; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.4 Qualifications of Administrative Trustees and Delaware
Trustee Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.5 Administrative Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.6 Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.7 Appointment, Removal and Resignation of Trustees . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.8 Vacancies among Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.9 Effect of Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.10 Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.11 Delegation of Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . 37
ARTICLE VII
DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION
SECTION 7.1 Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.2 Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7.3 Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.4 Trust Special Event Exchange or Redemption . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.5 Payment Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.6 Tax Reporting, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.7 Payment of Additional Sums by the Property Trustee . . . . . . . . . . . . . . . . . . . 47
SECTION 7.8 Payments under Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE VIII
ISSUANCE OF TRUST SECURITIES
SECTION 8.1 Designation and General Provisions Regarding Trust Securities . . . . . . . . . . . . . . 47
SECTION 8.2 Voting Rights of Trust Preferred Securities . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 8.3 Voting Rights of Trust Common Securities . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 8.4 Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 8.5 Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 8.6 Acceptance of Trust Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
</TABLE>
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<TABLE>
<S> <C>
ARTICLE IX
TERMINATION AND LIQUIDATION OF THE TRUST
SECTION 9.1 Termination of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 9.2 Liquidation Distribution Upon Termination and
Dissolution of the Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE X
TRANSFER OF INTERESTS
SECTION 10.1 Transfer and Exchange of Trust Securities . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.2 Transfer of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.3 Deemed Security Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.4 Book Entry Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.5 Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.6 Appointment of Successor Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.7 Definitive Trust Preferred Security Certificates . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.8 Mutilated, Destroyed, Lost or Stolen Certificates . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.9 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.10 Appointment of Registrar and Transfer Agent . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE XI
LIMITATION OF LIABILITY OF HOLDERS OF TRUST SECURITIES,
TRUSTEES OR OTHERS
SECTION 11.1 Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 11.2 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 11.3 Fiduciary Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.4 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.5 Outside Businesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE XII
ACCOUNTING
SECTION 12.1 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 12.2 Certain Accounting Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 12.3 Banking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 12.4 Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE XIII
AMENDMENTS AND MEETINGS
SECTION 13.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 13.2 Meetings of the Holders of Trust Securities; Action by
Written Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
</TABLE>
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<TABLE>
<S> <C>
ARTICLE XIV
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 14.1 Representations and Warranties of Property Trustee . . . . . . . . . . . . . . . . . . . 70
SECTION 14.2 Representations and Warranties of Delaware Trustee . . . . . . . . . . . . . . . . . . . 71
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 15.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 15.3 Intention of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 15.4 Acceptance of Terms of Declaration, Trust Guarantees
and Subordinated Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 15.5 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 15.6 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 15.7 Partial Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 15.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 15.9 Holding Company Formation, Consolidations and Mergers . . . . . . . . . . . . . . . . . . 75
</TABLE>
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<PAGE> 7
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
EL PASO ENERGY CAPITAL TRUST I
AMENDED AND RESTATED DECLARATION OF TRUST (the "Declaration"), dated
and effective as of February ___, 1998, by the Trustees (as defined herein), by
the Sponsor (as defined herein) and by the several Holders (as defined herein),
from time to time, of undivided beneficial interests in the Trust to be issued
pursuant to this Declaration.
R E C I T A L S:
WHEREAS, certain of the Trustees and the Sponsor declared and
established the EL PASO CAPITAL TRUST I (the "Business Trust"), a trust under
the Delaware Business Trust Act (the "Business Trust Act"), pursuant to a
Declaration of Trust dated as of ________________, 1997 (the "Original
Declaration") and a Certificate of Trust filed with the Secretary of State of
the State of Delaware on ________________, 1997, for the sole purpose of
issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in the
Subordinated Debentures (as defined herein); and
WHEREAS, as of the date hereof, no interests in the Trust have been
issued; and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
desire to amend and restate each and every term and provision of the Original
Declaration;
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust,
the Trustees declare that all assets contributed to the Trust will be held in
trust for the benefit of the Holders, from time to time, of the securities
representing undivided beneficial ownership interests in the assets of the
Trust issued hereunder, subject to the provisions of this Declaration.
<PAGE> 8
ARTICLE I
INTERPRETATION AND
DEFINITIONS
SECTION 1.1 Definitions.
For all purposes of this Declaration, unless the context otherwise
requires:
(a) Capitalized terms used in this Declaration but not
defined in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere in this Declaration has the
same meaning throughout;
(c) all references to "the Declaration" or "this
Declaration" are to this Declaration as modified, supplemented or amended from
time to time;
(d) all references in this Declaration to Articles and
Sections and Exhibits are to Articles and Sections and Exhibits to this
Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and
vice versa;
(g) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall mean such
accounting principles which are generally accepted at the date or time of such
computation; and
(h) each reference herein to a rule or form of the
Commission shall mean such rule or form and any rule or form successor thereto,
in each case as amended from time to time.
"Additional Amount" means, with respect to the Trust Securities, the
amount of Additional Interest (as defined in the Subordinated Indenture) paid
by the Sponsor on the Subordinated Debentures.
"Additional Sums" means, with respect to the Trust Securities, the
additional amounts as may be necessary in order that the amount of
Distributions then due and payable by the Trust on the
- 2 -
<PAGE> 9
outstanding Trust Preferred Securities and Trust Common Securities shall not be
reduced as a result of any additional taxes, duties and governmental charges to
which the Trust has become subject.
"Administrative Trustee" has the meaning set forth in Section 6.1(b)
hereof.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act of 1933, as amended, or any successor rule thereunder;
provided, however, that an Affiliate of the Sponsor shall not be deemed to
include the Trust.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"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.
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as set forth in Section 10.4 of this
Declaration.
"Business Day" means any day other than a day on which banking
institutions in The City of New York are authorized or required by law or
executive order to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Sections 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"Certificate" means a Trust Common Security Certificate or a Trust
Preferred Security Certificate.
"Change in 1940 Act Law" means, as a result of the occurrence on or
after the date of the original issuance of the Trust Preferred Securities of a
change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority, the Trust is or will be considered an "investment company" which is
required to be registered under the 1940 Act.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as
depository for the Trust Preferred Securities and in whose name or in the name
of a nominee of that organization shall be registered a Global Certificate and
which shall undertake to effect book entry transfers and pledges of beneficial
interests in the Trust Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of interest in securities
deposited with the Clearing Agency.
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<PAGE> 10
"Closing Date" means the first Time of Delivery (as defined in the
Underwriting Agreement), which date is also the date of execution and delivery
of this Declaration.
"Closing Price" means, with respect to any shares of capital stock, on
any day the reported last sale price on such day or, in case no sale takes
place on such day, the average of the reported closing bid and asked prices in
each case on the NYSE Composite Tape or, if the capital stock is not then
traded on the NYSE, on the principal national securities exchange or quotation
system on which such capital stock is listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange or quotation
system, the average of the closing bid and asked prices of such capital stock
in the over-the-counter market on the day in question as reported by the
National Quotation Bureau Incorporated, or a similar generally accepted
reporting service, or, if not so available in such manner, as furnished by the
NASD member firm selected from time to time by the Board of Directors for that
purpose or, if not so available in such manner, as otherwise determined in good
faith by the Board of Directors.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation.
"Commission" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
as amended, or, if at any time after the execution of this Declaration such
Commission is not existing or performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Security Holder of the Trust" means the Company in its
capacity as Holder of the Trust Common Securities.
"Common Stock" includes any stock of any class of any Person which has
no preference in respect of dividends or amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of such Person
and which is not subject to redemption by such Person.
"Company" means El Paso Natural Gas Company, and any successor to such
entity by merger, consolidation or similar transaction (including any holding
company established by El Paso Natural Gas Company in accordance with Section
251(g) of the DGCL).
"Company Indemnified Person" means (a) any Administrative Trustee; (b)
any Affiliate of any Administrative Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Administrative Trustee; or (d) any officer, director, shareholder, member,
partner, employee, representative or agent of the Trust or its Affiliates.
"Compounded Distributions" has the meaning set forth in Section 7.1(a)
of this Declaration.
"Conversion Agent" has the meaning specified in Section 7.3.
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<PAGE> 11
"Conversion Date" has the meaning specified in Section 7.3.
"Conversion Expiration Date" means the close of business on the
Business Day prior to the maturity date of the Subordinated Debentures, or in
the case of Trust Preferred Securities called for redemption, the close of
business on the Business Day prior to the Debenture Redemption Date.
"Conversion Price" has the meaning specified in Section 7.3.
"Corporate Trust Office" means the principal corporate trust office of
the Property Trustee in the Borough of Manhattan, the City of New York, which
office at the date hereof is located at 450 West 33rd Street, New York, New
York 10001.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Trust Securities.
"Current Market Price," with respect to the Common Stock of the
Sponsor, means the average of last reported sale price, regular way, for the 10
Trading Days ending on the date of determination, or, if no sale takes place on
any such day, the average of the reported closing bid and asked prices on such
day(s), regular way, in either case as reported on NYSE, or, if such Common
Stock is not listed or admitted to trading on NYSE on any such day, on the
principal national securities exchange or quotation system on which such Common
Stock is listed or admitted to trading, or, if not listed or admitted to
trading or quoted on any national securities exchange or quotation system, the
average closing bid and asked prices of such Common Stock in the
over-the-counter market for the 10 Trading Days in question as reported by the
National Quotation Bureau Incorporated, or a similar generally accepted
reporting service, or, if not so available in such manner, as furnished by any
member firm of the National Association of Securities Dealers, Inc. selected
from time to time by the Board of Directors for that purpose or, if not so
available in such manner, as otherwise determined in good faith by the Board of
Directors. As used herein, the term "Trading Day" shall mean a day on which
the principal national securities exchange on which the Common Stock is listed
or admitted to trading is open for the transaction of business or, if the
Common Stock is not listed or admitted to trading on any national securities
exchange, a Business Day.
"Debenture Event of Default" means an "Event of Default" as defined in
the Subordinated Indenture.
"Debenture Redemption Date" means, with respect to any Subordinated
Debentures to be redeemed under the Subordinated Indenture, the date fixed for
redemption under the Subordinated Indenture.
"Declaration" means this Amended and Restated Declaration of Trust, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Declaration, any such modification, amendment or supplement,
and the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this Declaration.
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<PAGE> 12
"Definitive Trust Preferred Security Certificates" has the meaning set
forth in Section 10.4 of this Declaration.
"Delaware Trustee" has the meaning set forth in Section 6.2 of this
Declaration.
"DGCL" means the General Corporation Law of the State of Delaware.
"Distributions" has the meaning set forth in Section 7.1(a) of this
Declaration.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
11.4(b) of this Declaration.
"Fiscal Period" means a calendar quarter ending on ___________,
___________, _________ and __________ of any Fiscal Year.
"Fiscal Year" has the meaning set forth in Section 12.1 of this
Declaration.
"Global Certificate" has the meaning set forth in Section 10.4 of this
Declaration.
"Holder" means a Person in whose name a Certificate representing a
Trust Security or Trust Securities is registered, such Person being a
beneficial owner within the meaning of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Investment Company" means an investment company as defined in the
1940 Act.
"Legal Action" has the meaning set forth in Section 3.6(h) of this
Declaration.
"List of Holders" has the meaning set forth in Section 2.2(a) of this
Declaration.
"Liquidation Amount" means an amount with respect to the assets of the
Trust equal to $50 per Trust Security.
"Majority in Liquidation Amount of the Trust Securities" means, except
as provided in the terms of the Trust Preferred Securities or by the Trust
Indenture Act, Holder(s) of outstanding Trust Securities voting together as a
single class or, as the context may require, Holders of outstanding
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<PAGE> 13
Trust Preferred Securities or Holders of outstanding Trust Common Securities
voting separately as a class, who are the record owners of more than 50% of the
aggregate Liquidation Amount of all outstanding Trust Securities of the
relevant class.
"Ministerial Action" means, a ministerial action (such as filing a
form or making an election or pursuing some other similar reasonable measure)
which in the sole judgment of the Company has or will cause no adverse effect
on the Trust, the Company or the holders of the Trust Securities and will
involve no material cost.
"NYSE" means the New York Stock Exchange, Inc.
"Nasdaq" means the National Association of Securities Dealers
Automated Quotation System.
"Notice of Conversion" means the notice given by a Holder of Trust
Securities to the Conversion Agent directing the Conversion Agent to exchange
such Trust Security for Subordinated Debentures and to convert such
Subordinated Debentures into Common Stock of the Company on behalf of such
Holder. The form of such notice is included in the Trust Common Securities
Certificate and Trust Preferred Securities Certificate or, with respect to
Trust Securities evidenced by Book-Entry Interests only, substantially in the
form set forth in Exhibit C.
"1940 Act" means the Investment Company Act of 1940, as amended from
time to time, or any successor legislation.
"Officers' Certificate" means, with respect to any Person (who is not
an individual), a certificate signed by the Chairman of the Board, the
President, a Vice President or the Treasurer, and by an Assistant Treasurer,
the Secretary or an Assistant Secretary of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
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<PAGE> 14
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Sponsor, and who may be an
employee of any thereof, and who shall be acceptable to the Property Trustee.
Any Opinion of Counsel delivered with respect to compliance with a condition or
covenant provided for in this Declaration shall include:
(a) a statement that each individual signing the Opinion
of Counsel has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each individual in rendering the
Opinion of Counsel;
(c) a statement that each individual has made such
examination or investigation as is necessary to enable such individual 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.
"Optional Redemption Price" means, except as set forth below, with
respect to the Trust Preferred Securities, the following percentages of the
Liquidation Amounts thereof, and accumulated and unpaid Distributions, if any,
to the date fixed for redemption if redeemed during the 12-month period
commencing ________________, 2002 in each of the following years indicated:
<TABLE>
<CAPTION>
Year Redemption Price Year Redemption Price
- ---- ---------------- ---- ----------------
<S> <C> <C> <C>
2002 ______% 2006 _________
2003 ______ 2007 _________
2004 ______ 2008 and thereafter 100%
2005 ______
</TABLE>
In the event of a redemption of Trust Securities upon the occurrence
or continuance of a Trust Tax Event, Trust Securities shall be redeemed at the
Optional Redemption Price of $50 per Trust Security and all accumulated and
unpaid Distributions, if any, to the date fixed for redemption.
In the event of a redemption of Trust Securities pursuant to Section
7.2(a), Trust Securities shall be redeemed as the redemption price specified
therein.
"Over-Allotment Option" means the option granted by the Trust to the
several underwriters to purchase up to _____________ additional Trust Preferred
Securities solely to cover over-allotments pursuant to the Underwriting
Agreement.
"Payment Amount" has the meaning set forth in Section 7.1(a) of this
Declaration.
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<PAGE> 15
"Paying Agent" has the meaning set forth in Section 3.8(g) of this
Declaration.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever
nature.
"Property Account" has the meaning set forth in Section 3.8(c) of this
Declaration.
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 6.3 of this Declaration.
"Pro Rata" means, in reference to any distributions on or redemptions
of Trust Securities or the distribution of Subordinated Debentures or any other
payment with respect to Trust Securities in connection with a Trust Special
Event or liquidation of the Trust, pro rata to each Holder of Trust Securities
according to the aggregate Liquidation Amount of the Trust Securities held by
the relevant Holder in relation to the aggregate Liquidation Amount of all
Trust Securities outstanding. In any proration in connection with a
redemption, the Property Trustee may make such adjustments as may be
appropriate in order that only Trust Securities in authorized denominations
shall be redeemed.
"Quorum" means a majority of the Administrative Trustees or, if there
are only two Administrative Trustees, both of them.
"Redemption Date" means with respect to any Trust Security to be
redeemed, each Debenture Redemption Date.
"Redemption Price" means, with respect to any Trust Security, $50 per
Trust Security, plus accumulated and unpaid Distributions (including any
Additional Sums and unpaid Additional Amounts) to the date of redemption.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any Person that owns,
directly or indirectly, 10% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any senior trust officer, any trust officer or assistant
trust officer, or any other officer of the Trust Preferred Guarantee Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
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<PAGE> 16
"Rule 3a-5" means Rule 3a-5 under the 1940 Act.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Sponsor" means the Company or any successor entity in a merger,
consolidation or amalgamation, in its capacity as sponsor of the Trust.
"Subordinated Debenture Trustee" means the "Trustee," as defined in
the Subordinated Indenture, initially The Chase Manhattan Bank.
"Subordinated Debentures" means up to $_________ aggregate principal
amount of the Sponsor's ____% Subordinated Convertible Debentures due
________________, 2028 issued or to be issued pursuant to the Subordinated
Indenture.
"Subordinated Indenture" means the Subordinated Indenture, dated as of
________________, 1998, between the Sponsor and the Subordinated Debenture
Trustee, as supplemented by that certain First Supplemental Indenture, dated
________________, 1998, between the Sponsor and the Subordinated Debenture
Trustee, as trustee, as further amended or supplemented from time to time.
"Successor Common Securities" has the meaning set forth in Section
3.15(b)(vii) of this Declaration.
"Successor Delaware Trustee" has the meaning set forth in Section
6.7(b) of this Declaration.
"Successor Entity" has the meaning set forth in Section 3.15 of this
Declaration.
"Successor Property Trustee" has the meaning set forth in Section
6.7(b) of this Declaration.
"Successor Trust Securities" has the meaning set forth in Section 3.15
of this Declaration.
"Super Majority" has the meaning set forth in Section 2.6(a)(ii) of
this Declaration.
"Tax Action" means (a) an amendment to, change in or announced
proposed change in the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, (b)
a judicial decision interpreting, applying or clarifying such laws or
regulations, (c) an administrative pronouncement or action that represents an
official position (including a clarification of an official position) of the
governmental authority or regulatory body making such administrative
pronouncement or taking such action, or (d) a threatened challenge asserted in
connection with an audit of the Company or any of its subsidiaries, or the
Trust, or a threatened challenge asserted in writing against any other taxpayer
that has raised capital through the issuance of securities that are
substantially similar to the Subordinated Debentures, or the Trust Preferred
Securities, which amendment or change is adopted or which decision,
pronouncement or
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<PAGE> 17
proposed change is announced or which action, clarification or challenge occurs
on or after the date of the original issuance of the Trust Preferred
Securities.
"10% in Liquidation Amount of the Trust Securities" means, except as
provided in the terms of the Trust Preferred Securities or by the Trust
Indenture Act, Holder(s) of outstanding Trust Securities voting together as a
single class or, as the context may require, Holders of outstanding Trust
Preferred Securities or Holders of outstanding Trust Common Securities voting
separately as a class, who are the record owners of 10% or more of the
aggregate Liquidation Amount of all outstanding Trust Securities of the
relevant class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury Department, as such regulations may be amended from time to
time (including corresponding provisions of succeeding regulations).
"Trust Common Security" has the meaning set forth in Section 8.1 of
this Declaration.
"Trust Common Security Certificate" means a definitive certificate in
fully registered form representing a Trust Common Security substantially in the
form of Exhibit A-2.
"Trust Common Securities Guarantee" means the Trust Convertible Common
Securities Guarantee Agreement dated as of ________________, 1998, entered into
by the Company, as Guarantor, for the benefit of the holders of the Trust
Common Securities.
"Trust Dissolution Tax Opinion" means an opinion of nationally
recognized independent tax counsel experienced in such matters to the effect
that there has been a Trust Tax Event.
"Trust Enforcement Event" means the occurrence, at any time, of a
Debenture Event of Default.
"Trust Guarantees" means the Trust Common Securities Guarantee and the
Trust Preferred Securities Guarantee, collectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"Trust Investment Company Event" means that the Company shall have
requested and received and shall have delivered to the Property Trustee an
Opinion of Counsel from a firm having a national tax and securities practice
and that is experienced in 1940 Act matters (which Opinion of Counsel shall not
have been rescinded by such law firm) to the effect that as a result of a
Change in 1940 Act Law, there is more than an insubstantial risk that the Trust
is or, within 90 days after such date, will be considered an "investment
company" which is required to be registered under the 1940 Act.
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<PAGE> 18
"Trust Liquidation" has the meaning set forth in Section 9.2(a) of
this Declaration.
"Trust Liquidation Distribution" has the meaning set forth in Section
9.2(a) of this Declaration.
"Trust Preferred Guarantee Trustee" means the Trustee under the Trust
Preferred Securities Guarantee.
"Trust Preferred Securities Guarantee" means the Trust Convertible
Preferred Securities Guarantee Agreement dated as of ____________________,
1998, entered into by the Company, as Guarantor, and the Trust Preferred
Guarantee Trustee, as trustee, for the benefit of the holders of the Trust
Preferred Securities.
"Trust Preferred Security" has the meaning set forth in Section 8.1(a)
of this Declaration.
"Trust Preferred Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of
a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Trust Preferred Security Certificate" means a certificate
representing a Trust Preferred Security substantially in the form of Exhibit
A-1.
"Trust Securities" means the Trust Common Securities and the Trust
Preferred Securities.
"Trust Special Event" means a Trust Tax Event or a Trust Investment
Company Event.
"Trust Tax Event" means that the Company shall have requested and
received and shall have delivered to the Property Trustee an Opinion of Counsel
from a firm having a national tax and securities practice (which Opinion of
Counsel shall not have been rescinded by such law firm) that there has been a
Tax Action which relates to any of the items described in (i) through (iii)
below, and that there is more than an insubstantial risk that (i) the Trust is
or, within 90 days after such date, will be subject to United States federal
income tax with respect to income accrued or received on the Subordinated
Debentures, (ii) the Trust is or, within 90 days after such date, will be
subject to more than a de minimis amount of other taxes, duties, assessments or
other governmental charges or (iii) interest payable by the Company on the
Subordinated Debentures is not or, within 90 days after such date, will not be
deductible by the Company for United States federal income tax purposes.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in
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<PAGE> 19
accordance with the provisions hereof, and references herein to a Trustee or
the Trustees shall refer to such Person or Persons solely in their capacity as
trustees hereunder.
"Underwriting Agreement" means that certain Underwriting Agreement,
dated as of ___________, 1998, among the Company, the Trust, and the several
underwriters named therein.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the
Trust Indenture Act that are required to be part of this Declaration and shall,
to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which
is a Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
SECTION 2.2 Lists of Holders of Trust Securities.
(a) Each of the Sponsor and the Administrative Trustees
on behalf of the Trust shall provide the Property Trustee (i) within 14 days
after each record date for payment of Distributions, a list, in such form as
the Property Trustee may reasonably require, of the names and addresses of the
Holders of the Trust Securities ("List of Holders") as of such record date,
provided, that neither the Sponsor nor the Administrative Trustees on behalf of
the Trust shall be obligated to provide such List of Holders at any time the
List of Holders does not differ from the most recent List of Holders given to
the Property Trustee by the Sponsor and the Administrative Trustees on behalf
of the Trust, and (ii) at any other time, within 30 days of receipt by the
Trust of a written request for a List of Holders as of a date no more than 14
days before such List of Holders is given to the Property Trustee. The
Property Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given to it or which
it receives in the capacity as Paying Agent (if acting in such capacity),
provided, that the Property Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
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<PAGE> 20
(b) The Property Trustee shall comply with its
obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture
Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year commencing May 15, 1998, the
Property Trustee shall provide to the Holders of the Trust Preferred Securities
such reports as are required by Section 313(a) of the Trust Indenture Act, if
any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Property Trustee shall also comply with the requirements of
Section 313 of the Trust Indenture Act. The Sponsor shall promptly notify the
Property Trustee when the Trust Securities are listed for trading on any stock
exchange.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as are required by Section 314 of the Trust Indenture Act (if any)
and the compliance certificate required by Section 314 of the Trust Indenture
Act in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act. Compliance certificates required by Section 314(a)(4) of
the Trust Indenture Act shall be delivered to the Property Trustee annually on
or before 120 days after the end of each fiscal year of the Sponsor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent provided for in this Declaration that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount of
Trust Preferred Securities may, by vote, on behalf of the Holders of all of the
Trust Preferred Securities, waive any past Trust Enforcement Event in respect
of the Trust Preferred Securities and its consequences, provided, that if the
underlying default or event of default:
(i) is not waivable under the Subordinated Indenture, the
Trust Enforcement Event under this Declaration shall also not be
waivable; or
(ii) requires the consent or vote of the holders of
greater than a majority (a "Super Majority") in aggregate principal
amount of the Subordinated Debentures to be waived under the
Subordinated Indenture, then, the Trust Enforcement Event under this
Declaration may
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<PAGE> 21
only be waived by the vote of the Holders of at least the relevant
Super Majority in Liquidation Amount of the Trust Preferred
Securities.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B)
of the Trust Indenture Act is hereby expressly excluded from this Declaration
and the Trust Securities, as permitted by the Trust Indenture Act. Upon such
waiver, any such default shall cease to exist, and any Trust Enforcement Event
with respect to the Trust Preferred Securities arising therefrom shall be
deemed to have been cured, for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Trust Enforcement
Event with respect to the Trust Preferred Securities or impair any right
consequent thereon. Any waiver by the Holders of the Trust Preferred
Securities of Trust Enforcement Events with respect to the Trust Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Trust Common Securities of any such Trust Enforcement Event with respect to the
Trust Common Securities for all purposes of this Declaration without any
further act, vote, or consent of the Holders of the Trust Common Securities.
(b) The Holders of a Majority in Liquidation Amount of
the Trust Common Securities may, by vote, on behalf of the Holders of all of
the Trust Common Securities, waive any past Trust Enforcement Event with
respect to the Trust Common Securities and its consequences, provided, that if
the underlying default or event of default:
(i) is not waivable under the Subordinated Indenture,
except where the Holders of the Trust Common Securities are deemed to
have waived such Trust Enforcement Event under this Declaration as
provided below in this Section 2.6(b), the Trust Enforcement Event
under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of the holders of a
Super Majority in aggregate principal amount of Subordinated
Debentures to be waived, except where the Holders of the Trust Common
Securities are deemed to have waived such Trust Enforcement Event
under the Declaration as provided below in this Section 2.6(b), then,
the Trust Enforcement Event under this Declaration may only be waived
by the vote of the Holders of at least the relevant Super Majority in
Liquidation Amount of the Trust Common Securities;
provided, further, each Holder of Trust Common Securities will be deemed to
have waived any such Trust Enforcement Event and all Trust Enforcement Events
with respect to the Trust Common Securities and its consequences if all Trust
Enforcement Events with respect to the Trust Preferred Securities have been
cured, waived or otherwise eliminated, and until such Trust Enforcement Events
have been so cured, waived or otherwise eliminated, the Property Trustee will
be deemed to be acting solely on behalf of the Holders of the Trust Preferred
Securities and only the Holders of the Trust Preferred Securities will have the
right to direct the Property Trustee in accordance with the terms of the Trust
Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu
of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and
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<PAGE> 22
the Trust Securities, as permitted by the Trust Indenture Act. Subject to the
foregoing provisions of this Section 2.6(b), upon such waiver, any such default
shall cease to exist and any Trust Enforcement Event with respect to the Trust
Common Securities arising therefrom shall be deemed to have been cured for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or Trust Enforcement Event with respect to the
Trust Common Securities or impair any right consequent thereon.
SECTION 2.7 Trust Enforcement Event; Notice.
The Property Trustee shall, within 90 days after the occurrence of a
Trust Enforcement Event, transmit by mail, first class postage prepaid, to the
Holders of the Trust Securities, notices of all defaults with respect to the
Trust Securities actually known to a Responsible Officer of the Property
Trustee in its Corporate Trust Office, unless such defaults have been cured
before the giving of such notice (the term "defaults" for the purposes of this
Section 2.7 being hereby defined to be Events of Default as defined in the
Subordinated Indenture, not including any periods of grace provided for therein
and irrespective of the giving of any notice provided therein); provided, that
except for a default in the payment of principal of (or premium, if any) or
interest (including Additional Sums and Additional Amounts, if any) on any of
the Subordinated Debentures or in the payment of any sinking fund installment
established for the Subordinated Debentures, the Property Trustee shall be
fully protected in withholding such notice if and so long as a Responsible
Officer of the Property Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of the Trust Securities.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "El Paso Energy Capital Trust I," as such name may
be modified from time to time by the Administrative Trustees following written
notice to the Holders of Trust Securities and the other Trustees. The Trust's
activities may be conducted under the name of the Trust or any other name
deemed advisable by the Administrative Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o El Paso
Natural Gas Company, 1001 Louisiana, Houston, Texas 77002. On 10 Business Days
prior written notice to the Holders of Trust Securities and the other Trustees,
the Administrative Trustees may designate another principal office.
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<PAGE> 23
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue the
Trust Securities, (b) to invest the proceeds from such sale of the Trust
Securities to acquire the Subordinated Debentures, and (c) except as otherwise
limited herein, to engage in only those other activities necessary or
incidental thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, mortgage or pledge any of its assets, or
otherwise undertake (or permit to be undertaken) any activity that would cause
the Trust not to be classified for United States federal income tax purposes as
a grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Administrative Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Administrative Trustees in accordance with their powers
shall constitute the act of and serve to bind the Trust and an action taken by
the Property Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the
Trustees acting on behalf of the Trust, no Person shall be required to inquire
into the authority of the Trustees to bind the Trust. Persons dealing with the
Trust are entitled to rely conclusively on the power and authority of the
Trustees as set forth in this Declaration.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Subordinated
Debentures and the Property Account or as otherwise provided in this
Declaration, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial ownership interest in the assets
of the Trust.
SECTION 3.6 Powers and Duties of the Administrative Trustees.
The Administrative Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Trust Preferred Securities and
the Trust Common Securities in accordance with this Declaration; provided,
however, that the Trust may issue no more than one series of Trust Preferred
Securities and no more than one series of Trust Common Securities, and,
provided, further, that there shall be no interests in the Trust other than the
Trust Securities, and the issuance of Trust Securities shall be limited to the
Trust Preferred Securities and Trust Common Securities issued on the Closing
Date and the Option Closing Date (as such term is defined in the Underwriting
Agreement), and all Trust Securities issued by the Trust shall be deemed to
have been issued as of the Closing Date;
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<PAGE> 24
(b) in connection with the issue and sale of the Trust
Preferred Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the registration
statement on Form S-3 prepared by the Sponsor, including any
amendments or supplements thereto, pertaining to the Trust Preferred
Securities and take such actions, or cause the Property Trustee to
take such actions, as may be necessary or appropriate to qualify this
Declaration under the Trust Indenture Act;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be necessary
in order to qualify or register all or part of the Trust Preferred
Securities in any State in which the Sponsor has determined to qualify
or register such Trust Preferred Securities for sale;
(iii) execute and file an application, prepared by the
Sponsor, to the NYSE or any other national stock exchange or the
Nasdaq National Market System for listing upon notice of issuance of
any Trust Preferred Securities;
(iv) execute and file with the Commission a registration
statement, including any amendments thereto, prepared by the Sponsor,
relating to the registration of the Trust Preferred Securities and the
Trust Preferred Securities Guarantee under Section 12(b) of the
Exchange Act, and to prepare and file all periodic and other reports
and documents required in connection therewith; and
(v) execute and enter into an underwriting agreement
providing for the sale of the Trust Preferred Securities and perform
the duties and obligations of the Trust thereunder;
(c) to acquire the Subordinated Debentures with the
proceeds of the sale of the Trust Preferred Securities and the Trust Common
Securities; provided, however, that the Administrative Trustees shall cause
legal title to the Subordinated Debentures to be held of record in the name of
the Property Trustee for the benefit of the Holders of the Trust Preferred
Securities and the Holders of Trust Common Securities;
(d) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of a Trust Special Event; provided, that the
Administrative Trustees shall consult with the Sponsor before taking or
refraining from taking any Ministerial Action in relation to a Trust Special
Event;
(e) to establish a record date with respect to all
actions to be taken hereunder that require a record date be established,
including and with respect to, for the purposes of Section 316(c) of the Trust
Indenture Act, Distributions, voting rights, redemptions and exchanges, and to
issue relevant notices to the Holders of Trust Preferred Securities and Holders
of Trust Common Securities as to such actions and applicable record dates;
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(f) to give prompt written notice to the Holders of the
Trust Securities of any notice received from the Company of the Company's
election not to make a current, quarterly payment on the Subordinated
Debentures;
(g) to take all actions and perform such duties as may be
required of the Administrative Trustees pursuant to the terms of the Trust
Securities;
(h) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action, or otherwise adjust claims or demands of or
against the Trust ("Legal Action"), unless pursuant to Section 3.8(e), the
Property Trustee has the exclusive power to bring such Legal Action;
(i) to employ or otherwise engage employees and agents
(who may be designated as officers with titles) and managers, contractors,
advisors, and consultants and pay reasonable compensation for such services;
(j) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(k) to give the certificate required by Section 314(a)(4)
of the Trust Indenture Act to the Property Trustee, which certificate may be
executed by any Administrative Trustee;
(l) to incur expenses that are necessary or incidental to
carry out any of the purposes of the Trust and to appoint a Paying Agent or
Paying Agents to serve in accordance with this Declaration;
(m) to act as, or appoint another Person to act as,
registrar and transfer agent for the Trust Securities;
(n) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing;
(o) to take all action that may be necessary or
appropriate for the preservation and the continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory business trust
under the laws of the State of Delaware and of each other jurisdiction in which
such existence is necessary to protect the limited liability of the Holders of
the Trust Preferred Securities or to enable the Trust to effect the purposes
for which the Trust was created;
(p) to take any action, or to take no action, not
inconsistent with this Declaration or with applicable law, that the
Administrative Trustees determine in their discretion to be necessary or
desirable in carrying out the activities of the Trust as set out in this
Section 3.6, including, but not limited to:
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(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the 1940 Act;
(ii) cooperating with the Sponsor to ensure that the
Subordinated Debentures will be treated as indebtedness of the Sponsor
for United States federal income tax purposes; and
(iii) taking no action which would be reasonably likely to
cause the Trust to be classified as an association or a publicly
traded partnership taxable as a corporation for United States federal
income tax purposes;
provided, that such action does not adversely affect the rights,
preferences or privileges of the Holders; and
(q) to take all action necessary to cause all applicable
tax returns and tax information reports that are required to be filed with
respect to the Trust to be duly prepared and filed by the Administrative
Trustees, on behalf of the Trust.
The Administrative Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Administrative Trustees shall not
take any action that is inconsistent with the purposes and functions of the
Trust set forth in Section 3.3.
Subject to this Section 3.6, the Administrative Trustees shall have
none of the powers or the authority of the Property Trustee set forth in
Section 3.8.
Any expenses incurred by the Administrative Trustees pursuant to this
Section 3.6 shall be reimbursed by the Company.
The Administrative Trustees shall take all actions on behalf of the
Trust that are not specifically required by this Declaration to be taken by any
other Trustee.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the
Property Trustee) shall cause the Trust not to, engage in any activity other
than as required or authorized by this Declaration. In particular, the Trust
shall not and the Trustees (including the Property Trustee) shall cause the
Trust not to:
(i) invest any proceeds received by the Trust from
holding the Subordinated Debentures, but shall distribute all such
proceeds to Holders of Trust Securities pursuant to the terms of this
Declaration and of the Trust Securities;
(ii) acquire any assets other than as expressly provided
herein;
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(iii) possess Trust property for other than a Trust
purpose;
(iv) make any loans or incur any indebtedness or acquire
any securities other than the Subordinated Debentures;
(v) possess any power or otherwise act in such a way as
to vary the Trust assets or the terms of the Trust Securities in any
way whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Trust Securities;
(vii) other than as set forth herein, consent to any
amendment, modification or termination of the Subordinated Indenture
or the Subordinated Debentures where such consent shall be required;
and
(viii) other than in connection with the liquidation of the
Trust pursuant to a Trust Special Event or upon conversion or
redemption of all the Trust Securities, file a certificate of
cancellation of the Trust.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Subordinated Debentures shall
be owned by and held of record in the name of the Property Trustee in trust for
the benefit of the Holders of the Trust Securities. The right, title and
interest of the Property Trustee to the Subordinated Debentures shall vest
automatically in each Person who may hereafter be appointed as Property Trustee
in accordance with Section 6.7. Such vesting and cessation of title shall be
effective whether or not conveyancing documents with regard to the Subordinated
Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right,
title and interest in the Subordinated Debentures to the Administrative
Trustees or to the Delaware Trustee (if the Property Trustee does not also act
as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Property Account") in the name of and
under the exclusive control of the Property Trustee on behalf of the
Holders of the Trust Securities and, upon the receipt of payments of
funds made in respect of the Subordinated Debentures held by the
Property Trustee or the Trust Guarantees, deposit such funds into the
Property Account and make payments to the Holders of the Trust
Preferred Securities and Holders of the Trust Common Securities from
the Property Account in accordance with Section 7.1. Funds in the
Property Account shall be held uninvested until disbursed in
accordance with this Declaration. The Property Account shall be an
account that is maintained with a banking institution (including the
Property Trustee
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<PAGE> 28
if it qualifies hereunder) authorized to exercise corporate trust
powers and having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal or
state authority; and
(ii) upon written notice of distribution issued by the
Administrative Trustees in accordance with the terms of the Trust
Securities, engage in such ministerial activities as shall be
necessary or appropriate to effect the distribution of the
Subordinated Debentures to Holders of Trust Securities upon the
occurrence of a Trust Special Event.
(d) The Property Trustee shall take all actions and
perform such duties as may be specifically required of the Property Trustee
pursuant to the terms of the Trust Securities.
(e) The Property Trustee may take any Legal Action which
arises out of or in connection with a Trust Enforcement Event of which a
Responsible Officer of the Property Trustee in its Corporate Trust Office has
actual knowledge or the Property Trustee's duties and obligations under this
Declaration or the Trust Indenture Act.
(f) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a Holder of Trust
Preferred Securities and, if a Trust Enforcement Event occurs and is
continuing, the Property Trustee may, for the benefit of Holders of the Trust
Preferred Securities, enforce its rights as Holder of the Trust Preferred
Securities subject to the rights of the Holders pursuant to the terms of such
Trust Preferred Securities.
(g) The Property Trustee may authorize one or more
Persons (each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all Trust
Securities and any such Paying Agent shall comply with Section 317(b) of the
Trust Indenture Act. Any Paying Agent may be removed by the Property Trustee
at any time and a successor Paying Agent or additional Paying Agents may be
appointed at any time by the Property Trustee.
(h) The Property Trustee shall continue to serve as a
Trustee until either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of Trust
Securities pursuant to the terms of the Trust Securities; or
(ii) a Successor Property Trustee has been appointed and
has accepted that appointment in accordance with Section 6.7.
(i) Subject to this Section 3.8, the Property Trustee
shall have none of the duties, liabilities, powers or authority of the
Administrative Trustees set forth in Section 3.6.
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The Property Trustee must exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Property Trustee shall not take any
action that is inconsistent with the purposes and functions of the Trust set
out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any
Trust Enforcement Event and after the curing or waiver of all Trust Enforcement
Events that may have occurred, shall undertake to perform only such duties as
are specifically set forth in this Declaration and no implied covenants shall
be read into this Declaration against the Property Trustee. In case a Trust
Enforcement Event has occurred (that has not been cured or waived pursuant to
Section 2.6) of which a Responsible Officer of the Property Trustee in its
Corporate Trust Office has actual knowledge, the Property Trustee shall
exercise such of the rights and powers vested in it by this Declaration, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Declaration shall be construed
to relieve the Property Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event
and after the curing or waiving of all such Trust Enforcement Events
that may have occurred:
(A) the duties and obligations of the
Property Trustee shall be determined solely by the express
provisions of this Declaration and the Property Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Declaration,
and no implied covenants or obligations shall be read into
this Declaration against the Property Trustee; and
(B) in the absence of bad faith on the
part of the Property Trustee, the Property Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Property Trustee and
conforming to the requirements of this Declaration; but in the
case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to
the Property Trustee, the Property Trustee shall be under a
duty to examine the same to determine whether or not they
conform to the requirements of this Declaration;
(ii) the Property Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Property Trustee, unless it shall be proved that the Property Trustee
was negligent in ascertaining the pertinent facts;
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(iii) subject to the requirement of the Property Trustee
receiving a tax opinion as set forth in Section 8.2(d) or 8.3(c), as
the case may be, the Property Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of such funds or
protection from such liability is not reasonably assured to it under
the terms of this Declaration or indemnity reasonably satisfactory to
the Property Trustee against such risk or liability is not reasonably
assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Subordinated
Debentures, the Trust Preferred Securities Guarantee and the Property
Account shall be to deal with such property in a similar manner as the
Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to
the Property Trustee under this Declaration and the Trust Indenture
Act;
(vi) the Property Trustee shall have no duty or liability
for or with respect to the value, genuineness, existence or
sufficiency of the Subordinated Debentures, the Trust Preferred
Securities Guarantee or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Property Account maintained by the Property Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise required by law;
and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Sponsor with their respective duties under this Declaration, nor shall
the Property Trustee be liable for any default or misconduct of the
Administrative Trustees or the Sponsor.
SECTION 3.10 Certain Rights of the Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall
be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument,
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opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the
Administrative Trustees acting on behalf of the Trust contemplated by
this Declaration shall be sufficiently evidenced by an Officers'
Certificate;
(iii) whenever in the administration of this Declaration,
the Property Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the
Sponsor or the Administrative Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel or
other experts and the advice or opinion of such counsel and experts
with respect to legal matters or advice within the scope of such
experts' area of expertise shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with such advice or
opinion; such counsel may be counsel to the Sponsor or any of its
Affiliates, and may include any of its employees. The Property
Trustee shall have the right at any time to seek instructions
concerning the administration of this Declaration from any court of
competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any Holder, unless (a) such Holder
shall have provided to the Property Trustee security and indemnity,
reasonably satisfactory to the Property Trustee, against the costs,
expenses (including attorneys' fees and expenses and the expenses of
the Property Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by
the Property Trustee and (b) the Property Trustee has obtained the
legal opinions, if any, required by Section 8.2(d) or 8.3(c), as the
case may be, of this Declaration; provided, that nothing contained in
this Section 3.10(a)(vi) shall be taken to relieve the Property
Trustee, upon the occurrence of a Trust Enforcement Event, of its
obligation to exercise the rights and powers vested in it by this
Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
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indebtedness or other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, custodians, nominees or attorneys and the Property
Trustee shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by it
hereunder;
(ix) any action taken by the Property Trustee or its
agents hereunder shall bind the Trust and the Holders of the Trust
Securities, and the signature of the Property Trustee or its agents
alone shall be sufficient and effective to perform any such action and
no third party shall be required to inquire as to the authority of the
Property Trustee to so act or as to its compliance with any of the
terms and provisions of this Declaration, both of which shall be
conclusively evidenced by the Property Trustee's or its agent's taking
such action;
(x) whenever in the administration of this Declaration
the Property Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Property Trustee (i) may request instructions
from the Holders of the Trust Securities which instructions may only
be given by the Holders of the same proportion in Liquidation Amount
of the Trust Securities as would be entitled to direct the Property
Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy
or right or taking such other action until such instructions are
received, and (iii) shall be fully protected in conclusively relying
on or acting in or in accordance with such instructions; provided,
however, that the Property Trustee shall not be required to take any
action unless it shall have obtained such legal opinions, if any,
required by Sections 8.2(d) or 8.3(c), as the case may be, of this
Agreement;
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration; and
(xii) if no Trust Enforcement Event has occurred and is
continuing and if (i) in performing its duties under this Declaration
the Property Trustee is required to decide between alternative courses
of action or (ii) in construing any of the provisions in this
Declaration the Property Trustee finds the same ambiguous or
inconsistent with any other provisions contained herein or (iii) the
Property Trustee is unsure of the application of any provision of this
Declaration, then, except as to any matter as to which the Holders of
Trust Preferred Securities are entitled to vote under the terms of
this Declaration, the Property Trustee shall deliver a notice to the
Sponsor requesting written instructions of the Sponsor as to the
course of action to be taken and the Property Trustee shall take such
action, or refrain from taking such action, as the Property Trustee
shall be instructed in writing to take, or to refrain from taking, by
the Sponsor; provided, however, that if the Property Trustee does not
receive such instructions of the Sponsor within 10 Business Days after
it has
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delivered such notice, or such reasonably shorter period of time set
forth in such notice (which to the extent practicable shall not be
less than two Business Days), it may, but shall be under no duty to,
take or refrain from taking such action not inconsistent with this
Declaration as it shall deem advisable and in the best interests of
the Holders, in which event the Property Trustee shall have no
liability except for its own bad faith, negligence or willful
misconduct.
(b) No provision of this Declaration shall be deemed to
impose any duty or obligation on the Property Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on
it, in any jurisdiction in which it shall be illegal, or in which the Property
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any provision of this Declaration other than Section
6.2, the Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Administrative Trustees, the Property Trustee or the Sponsor described in this
Declaration. Except as set forth in Section 6.2, the Delaware Trustee shall be
a Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Business Trust Act.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Administrative Trustees, and except
as otherwise required by the Business Trust Act, any Administrative Trustee is
authorized to execute on behalf of the Trust any documents that the
Administrative Trustees have the power and authority to cause the Trust to
execute pursuant to Section 3.6; provided, that the registration statement
referred to in Section 3.6(b)(i), including any amendments thereto, shall be
signed by or on behalf of a majority of the Administrative Trustees.
SECTION 3.13 Not Responsible for Recitals or Issuance of Trust Securities.
The recitals contained in this Declaration and the Trust Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration, the Subordinated Debentures or the Trust Securities.
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SECTION 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of Article IX
hereof, shall have perpetual existence.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with
or into, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, except as described in
Sections 3.15(b) and (c).
(b) The Trust may, with the consent of the Administrative
Trustees or, if there are more than two, a majority of the Administrative
Trustees and without the consent of the Holders of the Trust Securities, the
Delaware Trustee or the Property Trustee, consolidate, amalgamate, merge with
or into, or be replaced by, or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to a trust organized as
such under the laws of any State of the United States; provided, that:
(i) if the Trust is not the survivor, such successor
entity (the "Successor Entity") either:
(A) expressly assumes all of the
obligations of the Trust under the Trust Securities; or
(B) substitutes for the Trust Preferred
Securities other securities having substantially the same
terms as the Trust Preferred Securities (the "Successor Trust
Securities") so long as the Successor Trust Securities rank
the same as the Trust Preferred Securities rank with respect
to Distributions, assets and payments upon liquidation,
redemption and otherwise;
(ii) the Company expressly appoints a trustee of the
Successor Entity that possesses the same powers and duties as the
Property Trustee as the Holder of the Subordinated Debentures;
(iii) the Successor Trust Securities are listed, or any
Successor Trust Securities will be listed upon notification of
issuance, on any national securities exchange or with another
organization on which the Trust Preferred Securities are then listed
or quoted;
(iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Trust
Preferred Securities (including any Successor Trust Securities) to be
downgraded by any nationally recognized statistical rating
organization;
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(v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders of the Trust
Preferred Securities (including any Successor Trust Securities) in any
material respect (other than with respect to any dilution of the
Holders' interests in the new entity);
(vi) such Successor Entity has a purpose identical to that
of the Trust;
(vii) the Company owns all of the securities of the
Successor Entity having substantially the same terms as the Trust
Common Securities (the "Successor Common Securities") and guarantees
the obligations of such Successor Entity under the Successor Trust
Securities and the Successor Common Securities at least to the extent
provided by the Trust Guarantees; and
(viii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Sponsor has received
an opinion of a nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
(A) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease will
not adversely affect the rights, preferences and privileges of
the Holders of the Trust Preferred Securities (including any
Successor Trust Securities) in any material respect (other
than with respect to any dilution of the Holders' interest in
the new entity);
(B) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer
or lease, neither the Trust nor the Successor Entity will be
required to register as an Investment Company under the 1940
Act; and
(C) following such merger,
consolidation, amalgamation or replacement, the Trust (or the
Successor Entity) will not be taxable as a corporation for
United States federal income tax purposes.
(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in Liquidation Amount of the Trust
Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its assets substantially as an
entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause
the Trust or Successor Entity to be taxable as a corporation for United States
federal income tax purposes.
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SECTION 3.16 Compensation.
(a) The Sponsor agrees:
(i) to pay each of the Trustees from time to time such
compensation for all services rendered by such Trustee hereunder as
the Sponsor and such Trustee may agree upon from time to time (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust). To the fullest
extent possible the parties intend that Section 3561 of Title 12 of
the Delaware Code shall not apply to the Trust and that compensation
paid pursuant to this Section 3.16(a) not be subject to review by any
court under Section 3560 of Title 12 of the Delaware Code;
(ii) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Declaration (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expenses, disbursement or advance
as may be attributable to its negligence or bad faith; and
(b) Each of the Trustees hereby agrees that it shall not
claim any lien or charge on any Trust Property as a result of any amount due
pursuant to this Section 3.16. The provisions of this Section 3.16 shall
survive the dissolution of the Trust and the termination of this Declaration
and the removal or resignation of any Trustee.
ARTICLE IV
SPONSOR
SECTION 4.1 Responsibilities of the Sponsor.
In connection with the issue and sale of the Trust Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the
Commission a registration statement on Form S-3 in relation to the Trust
Preferred Securities, including any amendments or supplements thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Trust Preferred
Securities and to do any and all such acts, other than actions which must be
taken by the Trust, and advise the Trust of actions it must take, and prepare
for execution and filing any documents to be executed and filed by the Trust,
as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
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(c) to prepare for filing by the Trust an application to
the NYSE or any other national stock exchange or the Nasdaq National Market
System for listing upon notice of issuance of any Trust Preferred Securities
and, if required, the Trust Preferred Securities Guarantee;
(d) to prepare for filing by the Trust with the
Commission a registration statement relating to the registration of the Trust
Preferred Securities and the Trust Preferred Securities Guarantee under Section
12(b) of the Exchange Act, including any amendments thereto; and
(e) to negotiate the terms of an underwriting agreement
and any pricing agreement providing for the sale of the Trust Preferred
Securities.
SECTION 4.2 Indemnification and Expenses of the Trustee.
The Sponsor agrees to indemnify the Property Trustee and the Delaware
Trustee for, and to hold each of them harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part of the Property
Trustee or the Delaware Trustee, as the case may be, arising out of or in
connection with the acceptance or administration of the trust hereunder,
including the costs and expenses of defending either of them against any claim
or liability in connection with the exercise or performance of any of their
respective powers or duties hereunder. The provisions of this Section 4.2
shall survive the resignation or removal of the Delaware Trustee or the
Property Trustee or the termination of this Declaration.
ARTICLE V
TRUST COMMON SECURITIES
HOLDER
SECTION 5.1 Company's Purchase of Trust Common Securities.
On the Closing Date the Company will purchase the Trust Common
Securities authorized for issuance by the Trust, for an amount at least equal
to 3% of the capital of the Trust (as determined as of the Closing Date),
concurrently with the issuance of Trust Preferred Securities on the Closing
Date. Upon the exercise of the Over-Allotment Option (if the closing of same
occurs other than on the Closing Date), the Company shall purchase such
additional number of Trust Common Securities at $50 per Trust Common Security
so that the aggregate Liquidation Amount of the additional Trust Common
Securities so issued equals 3% of the aggregate Liquidation Amount of the
additional Trust Preferred Securities issued at such Option Closing Date. All
Trust Common Securities issued by the Trust shall be deemed to have been issued
as of the Closing Date.
SECTION 5.2 Covenants of the Trust Common Securities Holder.
For so long as the Trust Preferred Securities remain outstanding, the
Company will covenant (i) to maintain directly 100 percent ownership of the
Trust Common Securities, (ii) to cause the Trust
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to remain a statutory business trust and not to voluntarily dissolve, wind up,
liquidate, or be terminated, except as permitted by this Declaration, (iii) to
use its commercially reasonable efforts to ensure that the Trust will not be an
Investment Company, and (iv) to take no action which would be reasonably likely
to cause the Trust to be taxable as a corporation for United States federal
income tax purposes.
ARTICLE VI
TRUSTEES
SECTION 6.1 Number of Trustees.
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Trust
Securities, the Sponsor may, by written instrument, increase or decrease the
number of Trustees; and
(b) after the issuance of any Trust Securities, the
number of Trustees may be increased or decreased by vote of the Holders of a
Majority in Liquidation Amount of the Trust Common Securities voting as a class
at a meeting of the Holders of the Trust Common Securities; provided, however,
that the number of Trustees shall in no event be less than three (3); provided,
further, that (1) if required by the Business Trust Act, one Trustee is the
Delaware Trustee; (2) there shall be at least one Trustee who is an employee or
officer of, or is affiliated with, the Company (each, an "Administrative
Trustee"); and (3) one Trustee shall be the Property Trustee for so long as
this Declaration is required to qualify as an indenture under the Trust
Indenture Act, and such Property Trustee may also serve as Delaware Trustee if
it meets the applicable requirements.
SECTION 6.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its
principal place of business in the State of Delaware, and otherwise meets the
requirements of applicable law,
provided, that if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee may also be the Delaware Trustee (in which case
Section 3.11 shall have no application).
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SECTION 6.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (the
"Property Trustee") which shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then for the
purposes of this Section 6.3(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 6.3(a), the Property Trustee shall immediately
resign in the manner and with the effect set forth in Section 6.7(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Property Trustee and the Holder of the Trust Common
Securities (as if it were the obligor referred to in Section 310(b) of the
Trust Indenture Act) shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
(d) The Trust Preferred Securities Guarantee shall be
deemed to be specifically described in this Declaration for purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture
Act.
(e) The initial Property Trustee shall be:
The Chase Manhattan Bank.
SECTION 6.4 Qualifications of Administrative Trustees and Delaware Trustee
Generally.
Each Administrative Trustee and the Delaware Trustee (unless the
Property Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
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SECTION 6.5 Administrative Trustees.
The initial Administrative Trustees shall be:
H. Brent Austin
Jeffrey I. Beason
C. Dana Rice.
Except as expressly set forth in this Declaration and except if a
meeting of the Administrative Trustees is called with respect to any matter
over which the Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
SECTION 6.6 Delaware Trustee.
The initial Delaware Trustee shall be:
Chase Manhattan Bank Delaware.
SECTION 6.7 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 6.7(b), Trustees may be appointed
or removed without cause at any time:
(i) until the issuance of any Trust Securities, by
written instrument executed by the Sponsor; and
(ii) after the issuance of any Trust Securities, by vote
of the Holders of a Majority in Liquidation Amount of the Trust Common
Securities voting as a class at a meeting of the Holders of the Trust
Common Securities, provided, however, that if a Trust Enforcement
Event shall have occurred and be continuing the Property Trustee may
be removed and a successor thereto appointed only by the Holders of a
Majority in Liquidation Amount of the Trust Preferred Securities.
(b) (i) The Trustee that acts as Property Trustee
shall not be removed in accordance with Section 6.7(a) until a
successor Trustee possessing the qualifications to act as Property
Trustee under Section 6.3 (a "Successor Property Trustee") has been
appointed and has accepted such appointment by written instrument
executed by such Successor Property Trustee and delivered to the
Administrative Trustees and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not
be removed in accordance with Section 6.7(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under
Sections 6.2 and 6.4 (a "Successor Delaware Trustee") has been
appointed and
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has accepted such appointment by written instrument executed by such
Successor Delaware Trustee and delivered to the Administrative
Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until
his successor shall have been appointed or until his death, removal or
resignation. Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by the Trustee and
delivered to the Sponsor and the Trust, which resignation shall take effect
upon such delivery or upon such later date as is specified therein; provided,
however, that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee
has been appointed and has accepted such appointment by
instrument executed by such Successor Property Trustee and
delivered to the Trust, the Sponsor and the resigning Property
Trustee; or
(B) until the assets of the Trust have
been completely liquidated and the proceeds thereof
distributed to the Holders of the Trust Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the
Trust, the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Trust Common Securities shall use
their best efforts to promptly appoint a Successor Delaware Trustee or
Successor Property Trustee, as the case may be, if the Property Trustee or the
Delaware Trustee delivers an instrument of resignation in accordance with this
Section 6.7; provided, however, that if a Trust Enforcement Event shall have
occurred and be continuing a successor Property Trustee may be appointed only
by the Holders of a Majority in Liquidation Amount of the Trust Preferred
Securities.
(e) If no Successor Property Trustee or Successor
Delaware Trustee shall have been appointed and accepted appointment as provided
in this Section 6.7 within 60 days after delivery to the Sponsor and the Trust
of an instrument of resignation, the resigning Property Trustee or Delaware
Trustee, as applicable, may petition any court of competent jurisdiction for
appointment of a Successor Property Trustee or Successor Delaware Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may deem
proper and prescribe, appoint a Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be
liable for the acts or omissions to act of any Successor Property Trustee or
Successor Delaware Trustee, as the case may be.
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(g) In case of the appointment hereunder of a successor
Trustee, such successor Trustee so appointed shall execute, acknowledge and
deliver to the Trust 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 Sponsor 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 if the Property
Trustee is the resigning Trustee shall duly assign, transfer and deliver to the
successor Trustee all property and money held by such retiring Property Trustee
hereunder.
SECTION 6.8 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 6.1, or if the number of Trustees
is increased pursuant to Section 6.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Administrative Trustees or, if
there are more than two, a majority of the Administrative Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 6.7.
SECTION 6.9 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee
shall not operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 6.7, the
Administrative Trustees in office, regardless of their number, shall have all
the powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Declaration.
SECTION 6.10 Meetings.
If there is more than one Administrative Trustee, meetings of the
Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may be
held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person meetings of the Administrative Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 48 hours before such meeting.
Notice of any telephonic meetings of the Administrative Trustees or any
committee thereof shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than
24 hours before a meeting. Notices shall contain a brief statement of the
time, place and anticipated purposes of the meeting. The presence (whether in
person or by telephone) of an Administrative Trustee at a meeting shall
constitute a waiver of notice of such meeting except where an
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Administrative Trustee attends a meeting for the express purpose of objecting
to the transaction of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this Declaration,
any action of the Administrative Trustees may be taken at a meeting by vote of
a majority of the Administrative Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter; provided, that a
Quorum is present, or without a meeting by the unanimous written consent of the
Administrative Trustees. Notwithstanding the foregoing, any and all actions of
the Administrative Trustees may be taken by the unanimous written consent of
all Administrative Trustees.
SECTION 6.11 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 3.6, including any registration statement or amendment
thereto filed with the Commission, or making any other governmental filing.
(b) The Administrative Trustees shall have power to
delegate from time to time to such of their number or to officers of the Trust
the doing of such things and the execution of such instruments either in the
name of the Trust or the names of the Administrative Trustees or otherwise as
the Administrative Trustees may deem expedient, to the extent such delegation
is not prohibited by applicable law or contrary to the provisions of the Trust,
as set forth herein.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Property Trustee, the Delaware Trustee
or an Administrative Trustee, as the case may be, may be merged or converted or
with which either may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Property Trustee, the Delaware
Trustee or an Administrative Trustee, as the case may be, shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Property Trustee, the Delaware Trustee or an Administrative
Trustee, as the case may be, shall be the successor of the Property Trustee,
the Delaware Trustee or Administrative Trustee, as the case may be, hereunder;
provided, that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
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ARTICLE VII
DISTRIBUTIONS; REDEMPTION;
EXCHANGE; CONVERSION
SECTION 7.1 Distributions.
(a) The Trust Securities represent undivided beneficial
interests in the Trust property, and Holders of Trust Securities shall be
entitled to receive cumulative cash distributions at the rate per annum of
____% of the stated Liquidation Amount of $50 per Trust Security, calculated on
the basis of a 360-day year consisting of twelve 30-day months. For any period
shorter than a full 90-day quarter, distributions will be computed on the basis
of the actual number of days elapsed in such 90-day quarter. Distributions
shall be made on the Trust Preferred Securities and the Trust Common Securities
in accordance with Section 7.5. Distributions on the Trust Securities shall,
from the Closing Date, accrue and be cumulative and shall be payable quarterly
only to the extent that the Trust has funds available for the payment of such
Distributions in the Property Account. Distributions not paid on the scheduled
payment date will accumulate and compound quarterly at the rate of ___% per
annum ("Compounded Distributions"). "Distributions" shall mean ordinary
cumulative distributions in respect of each Fiscal Period together with any
Compounded Distributions. If and to the extent that the Company makes a
payment on the Subordinated Debentures held by the Property Trustee or the
Company makes a payment under the Trust Guarantees (the amount of any such
payment being a "Payment Amount"), the Trust shall and the Property Trustee is
directed, to the extent funds are available for that purpose, to make a Pro
Rata Distribution of the Payment Amount to the Holders entitled thereto.
(b) Distributions on the Trust Securities will be payable
quarterly in arrears on each ________, _______, ____________ and ___________,
commencing _________, 1998, when, as and if available for payment, by the
Property Trustee, except as otherwise described below. If Distributions are
not paid when scheduled, the accumulated Distributions shall be paid to the
Holders of record of Trust Securities as they appear on the books and records
of the Trust on the record date established for such Distributions as
determined under Section 7.1(e) below.
(c) The Sponsor has the right under the Subordinated
Indenture to defer payments of interest by extending the interest payment
period from time to time on the Subordinated Debentures for a period not
exceeding 20 consecutive quarters (each an "Extension Period"); provided, that
no Extension Period shall last beyond the date of the maturity or any
redemption date of the Subordinated Debentures and, as a consequence of such
deferral, Distributions will also be deferred. Despite such deferral,
quarterly Distributions will continue to accrue with interest thereon (to the
extent permitted by applicable law) at the rate specified above compounded
quarterly during any such Extension Period. Prior to the termination of any
such Extension Period, the Sponsor may further extend such Extension Period;
provided, that such Extension Period together with all such previous and
further extensions thereof may not exceed 20 consecutive quarters or extend
beyond the maturity or any redemption date of the Subordinated Debentures.
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(d) Amounts available to the Trust for distribution to
the Holders of the Trust Securities will be limited to payments received by the
Trust from the Company on the Subordinated Debentures or the Trust Guarantees.
If the Property Trustee, as the holder of the Subordinated Debentures for the
benefit of the Holders of the Trust Securities, receives notice of any
determination by the Company not to make payment on such Subordinated
Debentures, the Property Trustee shall give notice of such determination to the
Holders.
(e) Distributions on the Trust Securities will be payable
to the Holders thereof as they appear on the books and records of the Trust on
the relevant record dates, which relevant record dates will be the 15th day of
the month of the relevant payment dates (that is, each __________ 15,
__________ 15, __________ 15 and __________ 15). Such Distributions will be
paid through the Property Trustee who will hold amounts received in respect of
the Subordinated Debentures and Trust Guarantees in the Property Account for
the benefit of the Holders of the Trust Securities. In the event that any date
on which distributions are payable on the Trust Securities is not a Business
Day, payment of the distribution payable on such date will be made on the next
succeeding day which is a Business Day (without any interest or other payment
in respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The record date for Trust Common Securities shall be the same
date as is established as the record date for Trust Preferred Securities.
SECTION 7.2 Redemption.
(a) (i) Upon the repayment of the Subordinated
Debentures either at maturity or as a result of the acceleration of
the Subordinated Debentures upon the occurrence of a Debenture Event
of Default, the proceeds from such repayment or prepayment shall be
applied by the Property Trustee (subject to the Property Trustee
having received written notice no later than 30 days prior to the
related redemption of the Trust Securities) to redeem Trust Securities
having an aggregate Liquidation Amount equal to the principal amount
of the Subordinated Debentures so repaid, at the Redemption Price.
(ii) Upon an optional redemption (as set forth in the
Subordinated Indenture) of Subordinated Debentures, the proceeds from
such redemption shall be applied to redeem Trust Securities having an
aggregate Liquidation Amount equal to the aggregate unpaid principal
amount of the Subordinated Debentures so redeemed by the Sponsor,
including pursuant to Section 7.4, at the Optional Redemption Price,
and upon a mandatory redemption (as set forth in the Subordinated
Indenture) of Subordinated Debentures, the proceeds from such
redemption shall be applied to redeem Trust Securities having an
aggregate Liquidation Amount equal to the aggregate unpaid principal
amount of the Subordinated Debentures so redeemed by the Sponsor, at
the Redemption Price.
(iii) If, at any time prior to the Conversion Expiration
Date, less than ten percent (10%) in principal amount of the
Subordinated Debentures originally issued by the Sponsor
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remain outstanding, such Subordinated Debentures shall be redeemable,
at the option of the Sponsor, exercisable at any time in whole but not
in part, at a Redemption Price equal to the aggregate unpaid principal
amount thereof, and all accrued and unpaid interest due thereon; in
such event, the proceeds from such redemption shall be applied to
redeem at the Redemption Price the outstanding Trust Securities having
an aggregate Liquidation Amount equal to the aggregate unpaid
principal amount of the Subordinated Debentures so redeemed by the
Sponsor.
(b) Notice of redemption (which notice will be
irrevocable) shall be given by the Property Trustee by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date to the Sponsor and each Holder of Trust Securities to be
redeemed, at such Holder's address as it appears in the books and records of
the Trust. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or the Optional Redemption
Price, as the case may be;
(iii) the applicable CUSIP number;
(iv) if less than all of the outstanding Trust Securities
are to be redeemed, the identification and the aggregate Liquidation
Amount of the particular Trust Securities to be redeemed;
(v) if the Trust Preferred Securities are convertible,
(A) that a Holder of Trust Preferred Securities who desires to convert
such Trust Preferred Securities called for redemption must satisfy the
requirements for conversion contained in Section 7.3 hereof, (B) the
Conversion Price and (C) the date and time when the right to convert
shall expire;
(vi) that on the Redemption Date the Redemption Price or
the Optional Redemption Price, as the case may be, will become due and
payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after said date and
the Trust Security being redeemed will cease to have conversion
rights; and
(vii) the place or places where such Trust Securities are
to be surrendered for payment of the Redemption Price or the Optional
Redemption Price, as the case may be.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price or the Optional Redemption Price, as
the case may be, with the proceeds from the contemporaneous redemption of
Subordinated Debentures. Redemption of the Trust Securities shall be made and
the Redemption Price or the Optional Redemption Price, as the case may be,
shall be payable on each Redemption Date only to the extent that the Trust has
funds then
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on hand and available in the Property Account for the payment of such
Redemption Price or the Optional Redemption Price, as the case may be.
(d) If the Property Trustee gives a notice of redemption
in respect of any Trust Preferred Securities, then by 12:00 noon, New York City
time, on the Redemption Date, subject to Section 7.2(c) and to the Property
Trustee's having received for deposit to the Property Account available funds
sufficient for such redemption by 10:00 A.M., New York City time, on the
Redemption Date, the Property Trustee will, so long as and to the extent the
Trust Preferred Securities are in book-entry-only form, irrevocably deposit
with the Clearing Agency for the Trust Preferred Securities funds sufficient to
pay the applicable Redemption Price or Optional Redemption Price and will give
the Clearing Agency irrevocable instructions and authority to pay the
Redemption Price or the Optional Redemption Price, as the case may be, to the
Holders of such Trust Preferred Securities. If the Trust Preferred Securities
are no longer in book-entry only form, the Property Trustee, subject to Section
7.2(c), will irrevocably deposit with the Paying Agent funds sufficient to pay
the applicable Redemption Price or Optional Redemption Price, as the case may
be, on such Trust Preferred Securities held in certificated form and will give
the Paying Agent irrevocable instructions and authority to pay the Redemption
Price or the Optional Redemption Price, as the case may be, to the Holders
thereof upon surrender of their Trust Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear in the books and records
of the Trust Securities on the relevant record dates for the related
Distribution dates. If notice of redemption shall have been given and funds
deposited as required, then, upon the date of such deposit, all rights of
Holders holding Trust Securities so called for redemption will cease, except
the right of such Holders to receive the Redemption Price or the Optional
Redemption Price, as the case may be, but without interest, on such Redemption
Date and such Trust Securities will cease to be outstanding. In the event that
any date on which any Redemption Price or the Optional Redemption Price, as the
case may be, is payable is not a Business Day, then payment of the Redemption
Price or the Optional Redemption Price, as the case may be, payable on such
date will be made on the next succeeding day which is a Business Day and
without interest or other payment in respect of any such delay, except that, if
such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that payment of the
Redemption Price or the Optional Redemption Price in respect of Trust
Securities called for redemption is improperly withheld or refused and not paid
by the Trust or by the Sponsor pursuant to the Trust Guarantees, Distributions
on such Trust Securities will continue to accumulate at the then applicable
rate, from the Redemption Date originally established by the Trust to the date
such Redemption Price or the Optional Redemption Price is actually paid, in
which case the actual payment date will be the date fixed for redemption for
purpose of calculating the Redemption Price or the Optional Redemption Price.
(e) If less than all the outstanding Trust Securities are
to be redeemed on a Redemption Date, then the aggregate Liquidation Amount of
Trust Securities to be redeemed shall be allocated, subject to Section 9.2(b),
on a pro rata basis (based on Liquidation Amounts) among
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the Trust Common Securities and the Trust Preferred Securities that are to be
redeemed. The particular Trust Preferred Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Property
Trustee from the outstanding Trust Preferred Securities not previously called
for redemption, by lot or by such other method as the Property Trustee shall
deem fair and appropriate and which may provide for the selection for
redemption of portions equal to $50 (or an integral multiple of $50 in excess
thereof) of the Liquidation Amount of the Trust Preferred Securities. The
Property Trustee shall promptly notify the registrar and transfer agent of the
Trust Securities and the Conversion Agent in writing of the Trust Preferred
Securities selected for partial redemption and, in the case of any Trust
Preferred Securities selected for redemption, the Liquidation Amount thereof to
be redeemed; it being understood that, in the case of Trust Preferred
Securities registered in the name of and held of record by the Clearing Agency
or any nominee, the distribution of the proceeds of such redemption will be
made in accordance with the procedures of the Clearing Agency or its nominee.
For all purposes of this Declaration, unless the context otherwise requires,
all provisions relating to the redemption of Trust Preferred Securities shall
relate, in the case of any Trust Preferred Securities redeemed or to be
redeemed only in part, to the portion of the Liquidation Amount of Trust
Preferred Securities which has been or is to be redeemed. In the event of any
redemption in part, the Trust shall not be required to (i) issue, or register
the transfer of or exchange of, any Trust Preferred Security during a period
beginning at the opening of business 15 days before any selection for
redemption of Trust Preferred Securities and ending at the close of business on
the earliest date in which the relevant notice of redemption is deemed to have
been given to all holders of Trust Preferred Securities to be so redeemed or
(ii) register the transfer of or exchange of any Trust Preferred Securities so
selected for redemption, in whole or in part, except for the unredeemed portion
of any Trust Preferred Securities being redeemed in part.
SECTION 7.3 Conversion.
The Holders of Trust Securities, subject to the limitations set forth
in this Section 7.3, shall have the right at any time following the Closing
Date and ending on the Conversion Expiration Date, at their option, to cause
the Conversion Agent to convert Trust Securities, on behalf of the converting
Holders, into shares of Common Stock of the Company in the manner described
herein on and subject to the following terms and conditions:
(i) The Trust Securities will be convertible into fully
paid and nonassessable shares of Common Stock of the Company pursuant
to the Holder's direction to the Conversion Agent to exchange such
Trust Securities for a portion of the Subordinated Debentures, and
immediately to convert such amount of Subordinated Debentures into
fully paid and nonassessable shares of Common Stock of the Company at
an initial rate of ______ shares of Common Stock for each Trust
Security (which is equivalent to a conversion price of $______
principal amount of Subordinated Debentures per share of Company
Common Stock), subject to certain adjustments set forth in the
Subordinated Indenture (as so adjusted, the "Conversion Price").
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(ii) In order to convert Trust Securities into Company
Common Stock, the Holder of such Trust Securities shall submit to the
Conversion Agent an irrevocable Notice of Conversion to convert Trust
Securities on behalf of such Holder, together, if the Trust Securities
are in certificated form, with such certificates. The Notice of
Conversion shall (i) set forth the number of Trust Securities to be
converted and the name or names, if other than the Holder, in which
the shares of Company Common Stock should be issued and (ii) direct
the Conversion Agent (a) to exchange such Trust Securities for a
portion of the Subordinated Debentures held by the Property Trustee
having an aggregate principal amount equal to the Liquidation Amount
of the Trust Securities surrendered for conversion and (b) to
immediately convert such Subordinated Debentures, on behalf of such
Holder, into Company Common Stock and, if applicable, other
securities, cash or property (at the Conversion Price specified in the
preceding paragraph). The Conversion Agent shall notify the Property
Trustee of the Holder's election to exchange Trust Securities for a
portion of the Subordinated Debentures held by the Property Trustee
and the Property Trustee shall, upon receipt of such notice, deliver
to the Conversion Agent the appropriate principal amount of
Subordinated Debentures for exchange in accordance with this Section.
The Conversion Agent shall thereupon notify the Sponsor of the
Holder's election to convert such Subordinated Debentures into shares
of Company Common Stock. Holders of Trust Securities at the close of
business on a relevant record date for a Distribution will be entitled
to receive the Distribution paid on such Trust Securities on the
corresponding Distribution date notwithstanding the conversion of such
Trust Securities following such relevant record date but prior to such
Distribution date. Except as provided above, neither the Trust nor
the Sponsor will make, or be required to make, any payment, allowance
or adjustment upon any conversion on account of any accumulated and
unpaid Distributions, whether or not in arrears, accrued on the Trust
Securities surrendered for conversion, or on account of any
accumulated and unpaid dividends on the shares of Company Common Stock
issued upon such conversion. Trust Securities shall be deemed to have
been converted immediately prior to the close of business on the day
on which an irrevocable Notice of Conversion relating to such Trust
Securities is received by the Conversion Agent in accordance with the
foregoing provision (the "Conversion Date"). The Person or Persons
entitled to receive the Company Common Stock issuable upon conversion
of the Subordinated Debentures shall be treated for all purposes as
the record holder or holders of such Company Common Stock on the
Conversion Date. As promptly as practicable on or after the
Conversion Date, the Sponsor shall issue and deliver (or cause the
transfer agent for the Company Common Stock to deliver) at the office
of the Conversion Agent a certificate or certificates for the number
of full shares of Company Common Stock issuable upon such conversion,
together with the cash payment, if any, in lieu of any fraction of any
share to the Person or Persons entitled to receive the same, unless
otherwise directed by the Holder in the Notice of Conversion, and the
Conversion Agent shall distribute such certificate or certificates to
such Person or Persons.
(iii) Each Holder of a Trust Security by its acceptance
thereof initially appoints The Chase Manhattan Bank not in its
individual capacity but solely as conversion agent (the
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"Conversion Agent") for the purpose of effecting the conversion of
Trust Securities in accordance with this Section 7.3. In effecting
the conversion and transactions described in this Section 7.3, the
Conversion Agent shall be acting as agent of the Holders of Trust
Securities directing it to effect such conversion transactions. The
Conversion Agent is hereby authorized (i) to exchange Trust Securities
from time to time for Subordinated Debentures held by the Trust in
connection with the conversion of such Trust Securities in accordance
with this Section 7.3 and (ii) to convert all or a portion of the
Subordinated Debentures so exchanged into Company Common Stock and
thereupon to deliver such shares of Company Common Stock in accordance
with the provisions of this Section and to deliver to the Property
Trustee any new Subordinated Debenture or Debentures for any resulting
unconverted principal amount delivered to the Conversion Agent by the
Debenture Trustee.
(iv) No fractional shares of Company Common Stock will be
issued as a result of conversion, but, in lieu thereof, such
fractional interest will be paid in cash by the Sponsor to the
Conversion Agent in an amount equal to the Closing Price of such
fractional share on the Conversion Date, and the Conversion Agent will
in turn make such payment to the Holder or Holders of Trust Securities
so converted.
(v) Nothing in this Section 7.3 shall limit the
requirement of the Trust to withhold taxes pursuant to the terms of
the Trust Securities or as set forth in this Declaration or otherwise
require the Property Trustee or the Trust to pay any amounts on
account of such withholdings.
(vi) In the event of the exchange of any Trust Security in
part only in connection with a conversion pursuant to this Section
7.3, a new Trust Security or Trust Securities for the unexchanged
portion thereof will be issued in the name of the Holder thereof upon
the cancellation of the Trust Security exchanged in part in accordance
with Section 10.9 of this Declaration or if such Trust Security is
represented by a Global Certificate, the Property Trustee shall note
thereon the reduction in the number of Trust Securities evidenced
thereby as a result of such exchange.
SECTION 7.4 Trust Special Event Exchange or Redemption.
(a) If a Trust Special Event shall occur and be
continuing, the Property Trustee and the Administrative Trustees shall direct
the Conversion Agent to exchange all outstanding Trust Securities for
Subordinated Debentures having an unpaid principal amount equal to the
aggregate Liquidation Amount of the Trust Securities to be exchanged and to
dissolve the Trust; provided, however, that, in the case of a Trust Tax Event,
the Sponsor shall have the right to (i) direct that less than all, or none, as
appropriate, of the Trust Securities be so exchanged if and for so long as the
Sponsor shall have elected to pay any Additional Sums such that the net amounts
received by Holders of Trust Securities not so exchanged in respect of
Distributions are not reduced as a result of such Trust Tax Event, and shall
not have revoked any such election or failed to make such
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payments or (ii) cause the Trust Securities to be redeemed in the manner set
forth below. If at any time after ________________, 2002, a Trust Tax Event
shall occur or be continuing, the Sponsor shall have the right, subject to the
provisions of the Subordinated Indenture, upon not less than 30 nor more than
60 days' notice, to redeem the Subordinated Debentures, in whole or in part,
for cash. Promptly following such redemption, Trust Securities with an
aggregate Liquidation Amount equal to the aggregate unpaid principal amount of
the Subordinated Debentures so redeemed will be redeemed by the Trust at the
Optional Redemption Price on a pro rata basis, except as provided for in
Section 9.2(b).
(b) Notice of any exchange pursuant to this Section 7.4
(an "Exchange Notice") of the Trust Securities, which Exchange Notice shall be
irrevocable, will be given by the Property Trustee by first-class mail to the
Sponsor and to each record Holder of Trust Securities to be exchanged not less
than 30 nor more than 60 days prior to the date fixed for exchange thereof.
The Sponsor shall notify the Property Trustee of such exchange at least 15 days
prior to the latest date that the Property Trustee must give such notice. For
purposes of the calculation of the date of exchange and the dates on which
notices are given pursuant to this paragraph (b), an Exchange Notice shall be
deemed to be given on the day such notice is first mailed by first-class mail,
postage prepaid, to each Holder. Each Exchange Notice shall be addressed to
each Holder of Trust Securities at the address of such Holder appearing in the
books and records of the Trust. Each Exchange Notice shall state: (A) the
exchange date; (B) the aggregate Liquidation Amount of the Trust Securities to
be exchanged and the aggregate principal amount of the Subordinated Debentures
to be so exchanged therefor; (C) that on the exchange date the Trust Securities
to be so exchanged shall be exchanged for Subordinated Debentures bearing
interest accruing from and including the last date to which Distributions have
been made on the Trust Securities and that Distributions on the Trust
Securities so exchanged will cease to accumulate on and after said date; and
(D) the identity of the Conversion Agent, if any, and the place or places where
the Trust Securities to be exchanged are to be surrendered in exchange for
Subordinated Debentures. No defect in the Exchange Notice or in the mailing
thereof with respect to any Trust Security shall affect the validity of the
exchange proceedings for any other Trust Security.
(c) In the event that fewer than all the outstanding
Trust Preferred Securities are to be exchanged, then, on the exchange date, (i)
if all of the outstanding Trust Preferred Securities are represented by
Definitive Trust Preferred Securities Certificates, the particular Trust
Preferred Securities to be exchanged will be selected by the Property Trustee
from the outstanding Trust Preferred Securities not previously called for
redemption or exchange on a pro rata basis (based on Liquidation Amounts), (ii)
if all of the outstanding Trust Preferred Securities are represented by
Book-Entry Interests, the Property Trustee shall provide for the selection for
exchange of a portion of the Global Certificate representing the Book-Entry
Interests on a pro rata basis (based on Liquidation Amounts) and (iii) if
Outstanding Trust Securities are represented by both Definitive Trust Preferred
Securities Certificate and Book-Entry Interests, the Property Trustee shall
select the portion of the Global Certificate representing the Book- Entry
Interests and the particular outstanding Trust Preferred Securities represented
by Definitive Preferred Securities Certificates to be exchanged on a pro rata
basis (based on Liquidation Amounts). In the case of clause (ii) or (iii)
above, the
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particular Book-Entry Interests to be exchanged shall be selected in accordance
with the applicable rules and procedures for the Clearing Agency in whose name,
or whose nominee's name, such Global Certificate is then held. Any Trust
Preferred Securities Certificate that is to be exchanged only in part shall be
surrendered with due endorsement or by a written instrument of transfer fully
executed by the Holder thereof (or its attorney duly authorized in writing) and
the Trust shall prepare and deliver to such Holder, without service charge, a
new Trust Preferred Securities Certificate or Certificates in aggregate stated
Liquidation Amount equal to, and in exchange for, the unredeemed portion of the
Trust Preferred Securities Certificate so surrendered. The Trust Common
Securities shall be exchanged in a manner similar to that described for Trust
Preferred Securities represented by Definitive Trust Preferred Securities
Certificates.
(d) In the event of an exchange pursuant to this Section
7.4, on the date fixed for any such exchange, (i) if the Trust Preferred
Securities are represented by Book-Entry Interests, the Clearing Agency or its
nominee, as the record Holder of the Trust Preferred Securities, will exchange
through the Conversion Agent the Global Certificate representing the Trust
Preferred Securities to be exchanged for a registered Global Certificate or
certificates representing the Subordinated Debentures to be delivered upon such
exchange, (ii) if the Trust Preferred Securities are represented by Definitive
Trust Preferred Securities Certificates, the certificates representing the
Trust Preferred Securities to be so exchanged will be deemed to represent
Subordinated Debentures having a principal amount equal to the aggregate stated
Liquidation Amount of such Subordinated Preferred Securities until such
certificates are presented to the Conversion Agent for exchange for definitive
certificates representing Subordinated Debentures and (iii) all rights of the
Holders of the Trust Preferred Securities so exchanged will cease, except for
the right of such Holders to receive Subordinated Debentures. The Trust Common
Securities shall be exchanged in a manner similar to that described for Trust
Preferred Securities represented by Definitive Trust Preferred Securities
Certificates.
(e) Each Holder, by becoming a party to this Declaration
pursuant to Section 15.4 of this Declaration, will be deemed to have agreed to
be bound by these exchange provisions in regard to the exchange of Trust
Securities for Subordinated Debentures pursuant to the terms described above.
(f) Nothing in this Section 7.4 shall limit the
requirement of the Trust to withhold taxes pursuant to the terms of the Trust
Securities or as set forth in this Declaration or otherwise require the
Property Trustee or the Trust to pay any amounts on account of such
withholdings.
SECTION 7.5 Payment Procedures.
Payments in respect of the Trust Preferred Securities shall be made by
check mailed to the address of the Person entitled thereto as such address
shall appear on the books and records of the Trust or, if the Trust Preferred
Securities are held by a Clearing Agency, such Distributions shall be made to
the Clearing Agency in immediately available funds, in accordance with the
applicable depository agreement on the applicable Distribution dates or
Redemption Dates. Payments, if any,
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in respect of the Trust Common Securities shall be made in such manner as shall
be mutually agreed between the Property Trustee and the Holder of the Trust
Common Securities.
SECTION 7.6 Tax Reporting, Etc.
The Administrative Trustees shall prepare (or cause to be prepared),
at the Sponsor's expense, and file all United States Federal, State and local
tax and information returns and reports required to be filed by or in respect
of the Trust. In this regard, the Administrative Trustees shall (a) prepare
and file (or cause to be prepared or filed) Form 1041 or the appropriate
Internal Revenue Service form required to be filed in respect of the Trust in
each taxable year of the Trust and (b) prepare and furnish (or cause to be
prepared and furnished) to each Holder a Form 1099 or the appropriate Internal
Revenue Service form required to be furnished to such Holder or the information
required to be provided on such form. The Administrative Trustees shall
provide the Sponsor and the Property Trustee with a copy of all such returns,
reports and schedules promptly after such filing or furnishing. The Trustees
shall comply with United States Federal withholding and backup withholding tax
laws and information reporting requirements with respect to any payments to
Holders under the Trust Securities.
SECTION 7.7 Payment of Additional Sums by the Property Trustee.
Upon receipt under the Subordinated Debentures of Additional Sums the
Property Trustee, upon receipt of written notice from the Sponsor or the
Administrative Trustees, shall promptly pay from such Additional Sums any
taxes, duties or governmental charges of whatsoever nature (other than
withholding taxes) imposed on the Trust by the United States or any other
taxing authority.
SECTION 7.8 Payments under Indenture.
Any amount payable hereunder to any Holder of Trust Preferred
Securities (and any Trust Preferred Security Beneficial Owner with respect
thereto) shall be reduced by the amount of any corresponding payment such
Holder (or Owner) has directly received pursuant to the Subordinated Indenture
in accordance with the terms of Section 8.2(c) hereof.
ARTICLE VIII
ISSUANCE OF TRUST SECURITIES
SECTION 8.1 Designation and General Provisions Regarding Trust Securities.
(a) The Administrative Trustees shall on behalf of the
Trust issue one class of preferred securities representing undivided preferred
beneficial ownership interests in the assets of the Trust and one class of
common securities representing undivided subordinated beneficial ownership
interests in the assets of the Trust as follows:
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(i) Trust Preferred Securities. __,000,000 _____% Trust
Convertible Preferred Securities of the Trust (including
________________ _____% Trust Convertible Preferred Securities subject
to issuance upon exercise of the Over-Allotment Option) with an
aggregate Liquidation Amount with respect to the assets of the Trust
of __________ dollars (($____________), _______________ dollars
($__________) if the Over-Allotment Option is exercised in full) and a
Liquidation Amount with respect to the assets of the Trust of $50 per
trust preferred security, are hereby designated for the purpose of
identification only as _____% Trust Convertible Preferred Securities
(the "Trust Preferred Securities"). The Trust Preferred Security
Certificates evidencing the Trust Preferred Securities shall be
substantially in the form of Exhibit A-1 to the Declaration, with such
changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or to conform to the
rules of any stock exchange on which the Trust Preferred Securities
are listed.
(ii) Trust Common Securities. ____________ Trust
Convertible Common Securities of the Trust (including ______________
___% Trust Convertible Common Securities subject to issuance if the
Over-Allotment Option is exercised) with an aggregate Liquidation
Amount with respect to the assets of the Trust of __________ dollars
($_______) (_____________________ dollars (($__________) if the
Over-Allotment Option is exercised in full) and a Liquidation Amount
with respect to the assets of the Trust of $50 per trust common
security, are hereby designated for the purposes of identification
only as ___% Trust Convertible Common Securities (the "Trust Common
Securities"). The Trust Common Security Certificates evidencing the
Trust Common Securities shall be substantially in the form of Exhibit
A-2 to the Declaration, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or
practice.
(iii) All Trust Securities issued by the Trust shall be
deemed to have been issued on the Closing Date.
(b) Except as provided in Section 9.2(b) of this
Declaration, the Trust Preferred Securities rank pari passu, and payment
thereon shall be made Pro Rata, with the Trust Common Securities. The Trust
shall issue no securities or other interests in the assets of the Trust other
than the Trust Preferred Securities and the Trust Common Securities.
(c) Any Administrative Trustee shall sign the Trust
Securities for the Trust by manual or facsimile signature. In case any
Administrative Trustee of the Trust who shall have signed any of the Trust
Securities shall cease to be an Administrative Trustee before the Certificates
so signed shall be delivered by the Trust, such Certificates nevertheless may
be delivered as though the person who signed such Certificates had not ceased
to be such Administrative Trustee; and any Certificate may be signed on behalf
of the Trust by such persons who, at the actual date of execution of such Trust
Security, shall be the Administrative Trustees of the Trust, although at the
date of the execution and delivery of the Declaration any such person was not
such an Administrative Trustee. Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrative Trustees, as evidenced by their execution thereof, and
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may have such letters, numbers or other marks of identification or designation
and such legends or endorsements as the Administrative Trustees may deem
appropriate, or as may be required to comply with any law or with any rule or
regulation of any stock exchange on which Trust Securities may be listed, or to
conform to usage.
A Trust Security shall not be valid until authenticated by the manual
signature of an authorized officer of the Property Trustee. Such signature
shall conclusively evidence that the Trust Security has been authenticated
under this Declaration.
Trust Securities shall be dated the date of their authentication.
Upon a written order of the Trust signed by one Administrative
Trustee, the Property Trustee shall authenticate the Trust Securities for
original issue. The aggregate Liquidation Amount of Trust Securities
outstanding at any time shall not exceed the Liquidation Amount set forth in
Section 8.1(a).
The Property Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Trust Securities. An authenticating agent may
authenticate Trust Securities whenever the Property Trustee may do so. Each
reference in this Declaration to authentication by the Property Trustee
includes authentication by such agent. An authenticating agent has the same
rights as the Property Trustee to deal with the Sponsor or an Affiliate of the
Sponsor.
(d) The consideration received by the Trust for the
issuance of the Trust Securities shall constitute a contribution to the capital
of the Trust and shall not constitute a loan to the Trust.
(e) Upon issuance of the Trust Securities as provided in
this Declaration, the Trust Securities so issued shall be deemed to be validly
issued, fully paid and non-assessable, subject to Section 11.1 with respect to
the Trust Common Securities.
(f) Every Person, by virtue of having become a Holder or
a Trust Preferred Security Beneficial Owner in accordance with the terms of
this Declaration, shall be deemed to have expressly assented and agreed to the
terms of, and shall be bound by, this Declaration.
SECTION 8.2 Voting Rights of Trust Preferred Securities.
(a) Except as provided under Sections 6.7(a), this
Article VIII and Article XIII and as otherwise required by the Business Trust
Act, the Trust Indenture Act and other applicable law, the Holders of the Trust
Preferred Securities will have no voting rights.
(b) Subject to the requirement of the Property Trustee
obtaining an Opinion of Counsel in certain circumstances set forth in Section
8.2(d) below, the Holders of a Majority in Liquidation Amount of the Trust
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee, or
direct the
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exercise of any trust or power conferred upon the Property Trustee under the
Declaration, including the right to direct the Property Trustee, as Holder of
the Subordinated Debentures, to (i) exercise the remedies available to it under
the Subordinated Indenture as a Holder of the Subordinated Debentures or (ii)
consent to any amendment, modification, or termination of the Subordinated
Indenture or the Subordinated Debentures where such consent shall be required;
provided, however, that where a consent or action under the Subordinated
Indenture would require the consent or act of the Holders of more than a
majority of the outstanding principal amount of the Subordinated Debentures
affected thereby, only the Holders of the percentage of the aggregate stated
Liquidation Amount of the Trust Preferred Securities which is at least equal to
such required percentage of the principal amount of Subordinated Debentures may
direct the Property Trustee to give such consent or take such action; provided
further, however, that (subject to the provisions of Section 3.9) the Property
Trustee shall have the right to decline to follow any such direction if the
Property Trustee, being advised by counsel, determines that the action or
proceeding so directed may not lawfully be taken or if the Property Trustee, in
good faith, by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees, and/or Responsible Officers, shall
determine that the action or proceeding so directed would involve the Property
Trustee in personal liability.
(c) If the Property Trustee fails to enforce its rights
under the Subordinated Indenture after a Holder of Trust Preferred Securities
has made a written request, such Holder of Trust Preferred Securities may
institute a legal proceeding directly against the Company, to enforce the
Property Trustee's rights under the Subordinated Indenture without first
instituting any legal proceeding against the Property Trustee or any other
person or entity. Notwithstanding the foregoing, if a Trust Enforcement Event
has occurred and is continuing and such event is attributable to the failure of
the Company to make any required payment when due on the Subordinated
Debentures, then a Holder of Trust Preferred Securities may directly institute
a proceeding against the Company for enforcement such payment.
(d) The Property Trustee shall notify all Holders of the
Trust Preferred Securities of any notice of any Trust Enforcement Event
received from the Company with respect to the Subordinated Debentures. Except
with respect to directing the time, method, and place of conducting a
proceeding for a remedy, the Property Trustee shall be under no obligation to
take any of the actions described in Section 8.2(b)(i) and (ii) above unless
the Property Trustee has obtained an Opinion of Counsel (which counsel shall be
independent tax counsel) to the effect that as a result of such action, the
Trust will not be taxable as a corporation for United States federal income tax
purposes and that after such action each Holder will continue to be treated as
owning an undivided beneficial ownership interest in the Subordinated
Debentures.
(e) In the event the consent of the Property Trustee, as
the Holder of the Subordinated Debentures, is required under the Subordinated
Indenture with respect to any amendment, modification or termination of the
Subordinated Indenture, the Property Trustee shall request the direction of the
Holders of the Trust Securities with respect to such amendment, modification or
termination and shall vote with respect to such amendment, modification or
termination as directed by a Majority in Liquidation Amount of the Trust
Securities voting together
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as a single class; provided, however, that where a consent under the
Subordinated Indenture would require the consent of the Holders of more than a
majority of the aggregate principal amount of the Subordinated Debentures, the
Property Trustee may only give such consent at the direction of the Holders of
at least the same proportion in aggregate stated Liquidation Amount of the
Trust Securities. The Property Trustee shall not take any such action in
accordance with the directions of the Holders of the Trust Securities unless
the Property Trustee has obtained an Opinion of Counsel to the effect that, as
a result of such action, the Trust will not be classified as other than a
grantor trust for United States federal income tax purposes.
(f) Any required approval or direction of Holders of
Trust Preferred Securities may be given at a separate meeting of Holders of
Trust Preferred Securities convened for such purpose, at a meeting of all the
Holders of Trust Securities or pursuant to written consent. In accordance with
Section 13.2, the Administrative Trustees will cause a notice of any meeting at
which Holders of Trust Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of Trust Preferred Securities. Each such notice will
include a statement setting forth the following information: (i) the date of
such meeting or the date by which such action is to be taken; (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which written consent
is sought; and (iii) instructions for the delivery of proxies or consents.
(g) No vote or consent of the Holders of Trust Preferred
Securities will be required for the Trust to redeem and cancel Trust Preferred
Securities or distribute Subordinated Debentures in accordance with the
Declaration.
(h) Notwithstanding that Holders of Trust Preferred
Securities are entitled to vote or consent under any of the circumstances
described above, any of the Trust Preferred Securities that are beneficially
owned at such time by the Company or any entity directly or indirectly
controlled by, or under direct or indirect common control with, the Company,
shall not be entitled to vote or consent and shall, for purposes of such vote
or consent, be treated as if such Trust Preferred Securities were not
outstanding, except for Trust Preferred Securities purchased or acquired by the
Company or its Affiliates in connection with transactions effected by or for
the account of customers of the Company or any of its subsidiaries or in
connection with the distribution or trading of such Trust Preferred Securities;
provided, however, that persons (other than Affiliates of the Company) to whom
the Company or any of its subsidiaries have pledged Trust Preferred Securities
may vote or consent with respect to such pledged Trust Preferred Securities
pursuant to the terms of such pledge.
(i) Holders of the Trust Preferred Securities will have
no rights to appoint or remove the Administrative Trustees, who may be
appointed, removed or replaced solely by the Company, as the Holder of all the
Trust Common Securities.
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SECTION 8.3 Voting Rights of Trust Common Securities.
(a) Except as provided under this Section 8.3 or as
otherwise required by the Business Trust Act, the Trust Indenture Act or other
applicable law or provided by the Declaration, the Holders of the Trust Common
Securities will have no voting rights.
(b) The Holders of the Trust Common Securities are
entitled, in accordance with Article VI of this Declaration, to vote to
appoint, remove or replace any Trustee or to increase or decrease the number of
Trustees.
(c) Subject to Section 2.6 of the Declaration and only
after all Trust Enforcement Events with respect to the Trust Preferred
Securities have been cured, waived, or otherwise eliminated and subject to the
requirement of the Property Trustee obtaining an Opinion of Counsel in certain
circumstances set forth in this paragraph (c), the Holders of a Majority in
Liquidation Amount of the Trust Common Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Property Trustee, or direct the exercise of any trust or power conferred
upon the Property Trustee under the Declaration, including the right to direct
the Property Trustee, as Holder of the Subordinated Debentures, to exercise the
remedies available to it under the Subordinated Indenture as a Holder of the
Subordinated Debentures; provided, however, that (subject to the provisions of
Section 3.9) the Property Trustee shall have the right to decline to follow any
such direction if the Property Trustee, being advised by counsel, determines
that the action or proceeding so directed may not lawfully be taken or if the
Property Trustee, in good faith, by its board of directors or trustees,
executive committee, or a trust committee of directors or trustees, and/or
Responsible Officers, shall determine that the action or proceeding so directed
would involve the Property Trustee in personal liability. Except with respect
to directing the time, method and place of conducting a proceeding for a
remedy, the Property Trustee shall be under no obligation to take any of the
actions described above in this Section 8.3(c) unless the Property Trustee has
obtained an Opinion of Counsel (which counsel shall be independent tax counsel)
to the effect that, as a result of such action, for United States federal
income tax purposes the Trust will not be taxable as a corporation for United
States federal income tax purposes and each Holder will be treated as owning an
undivided beneficial ownership interest in the Subordinated Debentures and
Trust Guarantees.
(d) If the Property Trustee fails to enforce its rights
under the Subordinated Debentures after a Holder of Trust Common Securities has
made a written request, such Holder of Trust Common Securities may institute a
legal proceeding directly against the Company to enforce the Property Trustee's
rights under the Subordinated Debentures without first instituting any legal
proceeding against the Property Trustee or any other person or entity.
(e) Any required approval or direction of Holders of
Trust Common Securities may be given at a separate meeting of Holders of Trust
Common Securities convened for such purpose, at a meeting of all the Holders of
Trust Securities or pursuant to written consent. In accordance with Section
13.2, the Administrative Trustees will cause a notice of any meeting at
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which Holders of Trust Common Securities are entitled to vote, or of any matter
upon which action by written consent of such Holders is to be taken, to be
mailed to each Holder of record of Trust Common Securities. Each such notice
will include a statement setting forth the following information: (i) the date
of such meeting or the date by which such action is to be taken; (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which written consent
is sought; and (iii) instructions for the delivery of proxies or consents.
(f) No vote or consent of the Holders of the Trust Common
Securities shall be required for the Trust to redeem and cancel Trust Common
Securities or to distribute Subordinated Debentures in accordance with the
Declaration and the terms of the Trust Securities.
SECTION 8.4 Paying Agent.
In the event that the Trust Preferred Securities are not in book-entry
only form, the Trust shall maintain in the Borough of Manhattan, City of New
York, State of New York, an office or agency where the Trust Preferred
Securities may be presented for payment ("Paying Agent"). The Trust may
appoint the Paying Agent and may appoint one or more additional paying agents
in such other locations as it shall determine. The term "Paying Agent"
includes any additional paying agent. The Trust may change any Paying Agent
without prior notice to any Holder. The Trust shall notify the Property
Trustee of the name and address of any Paying Agent not a party to this
Declaration. If the Trust fails to appoint or maintain another entity as
Paying Agent, the Property Trustee shall act as such. The Trust or any of its
Affiliates may act as Paying Agent. The Chase Manhattan Bank shall initially
act as Paying Agent for the Trust Preferred Securities and the Trust Common
Securities.
SECTION 8.5 Listing.
The Sponsor shall use its reasonable commercial efforts to cause the
Trust Preferred Securities to be listed for trading on the NYSE.
SECTION 8.6 Acceptance of Trust Guarantees.
Each Holder of Trust Preferred Securities and Trust Common Securities,
by the acceptance thereof, agrees to the provisions of the applicable Trust
Guarantees, including the subordination provisions therein.
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ARTICLE IX
TERMINATION AND LIQUIDATION
OF THE TRUST
SECTION 9.1 Termination of Trust.
(a) The Trust shall terminate:
(i) upon the bankruptcy of the Holder of Trust Common
Securities or the Sponsor;
(ii) upon the filing of a certificate of dissolution or
its equivalent with respect to the Sponsor, the filing of a
certificate of cancellation with respect to the Trust after having
obtained the consent of at least a Majority in Liquidation Amount of
the Trust Securities, voting together as a single class, to file such
certificate of cancellation, or the revocation of the Sponsor's
charter and the expiration of 90 days after the date of revocation
without a reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution of
the Sponsor or the Trust;
(iv) when all of the Trust Securities shall have been
called for redemption and the amounts necessary for redemption thereof
shall have been paid to the Holders in accordance with the terms of
the Trust Securities;
(v) upon the election of the Administrative Trustees,
following the occurrence and continuation of a Trust Special Event,
pursuant to which the Trust shall give the Exchange Notice in
accordance with Section 7.4(b) and all of the Subordinated Debentures
shall have been distributed to the Holders of Trust Securities in
exchange for all of the Trust Securities;
(vi) before the issuance of any Trust Securities, with the
consent of all of the Administrative Trustees and the Sponsor;
(vii) upon the distribution of the Subordinated Debentures
to the Holders of the Trust Securities, if the Sponsor has given
written instruction to the Property Trustee to terminate the Trust
(which direction may be given in the sole discretion of the Sponsor);
or
(viii) upon the conversion of all of the Trust Securities in
accordance with Section 7.3.
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(b) As soon as is practicable after the occurrence of an
event referred to in Section 9.1(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article XI shall
survive the termination of the Trust.
SECTION 9.2 Liquidation Distribution Upon Termination and Dissolution of
the Trust.
(a) In the event of any voluntary or involuntary
liquidation, dissolution, winding-up or termination of the Trust (each a "Trust
Liquidation"), the Holders of the Trust Preferred Securities on the date of the
Trust Liquidation will be entitled to receive, out of the assets of the Trust
available for distribution to Holders of Trust Securities after satisfaction of
the Trust's liabilities and creditors, distributions in cash or other
immediately available funds in an amount equal to the aggregate of the stated
Liquidation Amount of $50 per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "Trust
Liquidation Distribution"), unless, in connection with such Trust Liquidation,
Subordinated Debentures shall be distributed (as provided in Section 9.1(a)) on
a Pro Rata basis to the Holders of the Trust Securities in exchange for such
Trust Securities.
(b) If, upon any such Trust Liquidation, the Trust
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Trust Liquidation
Distribution, then the amounts payable directly by the Trust on the Trust
Securities shall be paid on a Pro Rata basis. The Holders of the Trust Common
Securities will be entitled to receive distributions upon any such Trust
Liquidation Pro Rata with the Holders of the Trust Preferred Securities;
provided, however, that if on any Distribution Date or Redemption Date a
Debenture Event of Default shall have occurred and be continuing, no payment of
any Distribution on, or the Redemption Price or Optional Redemption Price of,
any Trust Common Security, and no other payment on account of the redemption,
liquidation or other acquisition of Trust Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions on
all outstanding Trust Preferred Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price or Optional Redemption Price the full amount of such Redemption Price or
Optional Redemption Price on all outstanding Trust Preferred Securities, shall
have been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions on, or the Redemption Price or Optional Redemption Price of,
Trust Preferred Securities then due and payable.
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ARTICLE X
TRANSFER OF INTERESTS
SECTION 10.1 Transfer and Exchange of Trust Securities.
(a) Trust Securities may only be transferred, in whole or
in part, in accordance with the terms and conditions set forth in this
Declaration and in the terms of the Trust Securities. Any transfer or
purported transfer of any Trust Security not made in accordance with this
Declaration shall be null and void.
(b) Subject to this Article X, Trust Preferred Securities
shall be freely transferable.
(c) At the option of the Holder, Trust Securities of any
class (except a Global Security) may be exchanged for other Trust Securities of
the same class, and of a like aggregate Liquidation Amount and tenor, upon
surrender of the Trust Securities to be exchanged at the office of the
Registrar. Whenever any Trust Securities are so surrendered for exchange, the
Administrative Trustees shall execute, and the Property Trustee shall
authenticate and deliver, the Trust Securities which the Holder making the
exchange is entitled to receive.
SECTION 10.2 Transfer of Certificates.
The Administrative Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Administrative
Trustees may require) in respect of any tax or other government charges that
may be imposed in relation to it. Upon surrender for registration of transfer
of any Certificate, the Administrative Trustees shall cause one or more new
Certificates to be issued in the name of the designated transferee or
transferees. Every Certificate surrendered for registration of transfer shall
be accompanied by a written instrument of transfer in form satisfactory to the
Administrative Trustees and the Property Trustee duly executed by the Holder or
such Holder's attorney duly authorized in writing. Each Certificate
surrendered for registration of transfer shall be canceled by the Property
Trustee. A transferee of a Certificate shall be entitled to the rights and
subject to the obligations of a Holder hereunder upon the receipt by such
transferee of a Certificate. By acceptance of a Certificate, each transferee
shall be deemed to have agreed to be bound by this Declaration.
SECTION 10.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate shall
be registered on the books and records of the Trust as the sole Holder of such
Certificate and of the Trust Securities represented by such Certificate for
purposes of receiving Distributions and for all other purposes whatsoever
(except as provided in Section 7.1(e)) and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such Certificate or in
the Trust Securities represented
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by such Certificate on the part of any Person, whether or not the Trust shall
have actual or other notice thereof.
SECTION 10.4 Book Entry Interests.
The Trust Preferred Securities Certificates, on original issuance,
will be issued in the form of one or more fully registered, global Trust
Preferred Security Certificates (each a "Global Certificate"), to be delivered
to DTC, the initial Clearing Agency, by, or on behalf of, the Trust. Such
Global Certificates shall initially be registered on the books and records of
the Trust in the name of Cede & Co., the nominee of DTC, and no Trust Preferred
Security Beneficial Owner will receive a definitive Trust Preferred Security
Certificate representing such Trust Preferred Security Beneficial Owner's
interests in such Global Certificates, except as provided in Section 10.7.
Unless and until definitive, fully registered Trust Preferred Security
Certificates (the "Definitive Trust Preferred Security Certificates") have been
issued to the Trust Preferred Security Beneficial Owners pursuant to Section
10.7:
(a) the provisions of this Section 10.4 shall be in full
force and effect;
(b) the Trust and the Trustees shall be entitled to deal
with the Clearing Agency for all purposes of this Declaration (including the
payment of Distributions on the Global Certificates and receiving approvals,
votes or consents hereunder) as the Holder of the Trust Preferred Securities
and the sole Holder of the Global Certificates and shall have no obligation to
the Trust Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section
10.4 conflict with any other provisions of this Declaration, the provisions of
this Section 10.4 shall control; and
(d) the rights of the Trust Preferred Security Beneficial
Owners shall be exercised only through the Clearing Agency and shall be limited
to those established by law and agreements between such Trust Preferred
Security Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants and the Clearing Agency shall receive and transmit payments of
Distributions on the Global Certificates to such Clearing Agency Participants.
The Clearing Agency will make book entry transfers among the Clearing Agency
Participants; provided, that solely for the purposes of determining whether the
Holders of the requisite amount of Trust Preferred Securities have voted on any
matter provided for in this Declaration, so long as Definitive Trust Preferred
Security Certificates have not been issued, the Trustees may conclusively rely
on, and shall be fully protected in relying on, any written instrument
(including a proxy) delivered to the Trustees by the Clearing Agency setting
forth the Trust Preferred Security Beneficial Owners' votes or assigning the
right to vote on any matter to any other Persons either in whole or in part.
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SECTION 10.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Trust Preferred
Security Holders is required under this Declaration, unless and until
Definitive Trust Preferred Security Certificates shall have been issued to the
Trust Preferred Security Beneficial Owners pursuant to Section 10.7, the
Trustee or Trustees required or authorized to give any such notice or
communication shall give all such notices and communications specified herein
to be given to the Trust Preferred Security Holders to the Clearing Agency, and
shall have no notice obligations to the Trust Preferred Security Beneficial
Owners.
SECTION 10.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue, or becomes ineligible to
continue, its services as securities depositary with respect to the Trust
Preferred Securities, the Administrative Trustees may, in their sole
discretion, appoint a successor Clearing Agency with respect to such Trust
Preferred Securities.
SECTION 10.7 Definitive Trust Preferred Security Certificates.
If:
(a) a Clearing Agency elects to discontinue, or becomes
ineligible to continue, its services as securities depositary with respect to
the Trust Preferred Securities and a successor Clearing Agency is not appointed
within 90 days after such discontinuance or ineligibility pursuant to Section
10.6, or
(b) the Administrative Trustees elect after consultation
with the Sponsor to terminate the book entry system through the Clearing Agency
with respect to the Trust Preferred Securities, or
(c) there is a Trust Enforcement Event,
then:
(y) Definitive Trust Preferred Security Certificates
shall be prepared by the Administrative Trustees on behalf of the Trust with
respect to such Trust Preferred Securities; and
(z) upon surrender of the Global Certificates by the
Clearing Agency, accompanied by registration instructions, the Administrative
Trustees shall cause Definitive Trust Preferred Security Certificates to be
delivered to Trust Preferred Security Beneficial Owners in accordance with the
instructions of the Clearing Agency. Neither the Trustees nor the Trust shall
be liable for any delay in delivery of such instructions and each of them may
conclusively rely on and shall be fully protected in relying on, said
instructions of the Clearing Agency. The Definitive
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Trust Preferred Security Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrative Trustees, as evidenced by their execution thereof, and may
have such letters, numbers or other marks of identification or designation and
such legends or endorsements as the Administrative Trustees may deem
appropriate, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which Trust Preferred Securities may be listed, or to conform to
usage.
SECTION 10.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificate should be surrendered to
the Property Trustee, or if the Property Trustee shall receive evidence to its
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Administrative
Trustees and the Property Trustee such security or indemnity as may be required
by them to keep each of them harmless,
then, in the absence of notice that such Certificate shall have been acquired
by a bona fide purchaser, any Administrative Trustee on behalf of the Trust
shall execute and the Property Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like denomination. In connection with the
issuance of any new Certificate under this Section 10.8, the Administrative
Trustees or the Property Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the relevant Trust
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 10.9 Cancellation.
All Trust Securities surrendered for payment, redemption, transfer or
exchange shall, if surrendered to any Person other than the Property Trustee,
be delivered to the Property Trustee and shall be promptly canceled by it. A
Holder may at any time deliver to the Property Trustee for cancellation any
Trust Securities previously authenticated and delivered hereunder, which the
Holder may have acquired in any manner whatsoever, and all Trust Securities so
delivered shall be promptly canceled by the Property Trustee. No Trust
Securities shall be authenticated in lieu of or in exchange for any Trust
Securities canceled as provided in this Section, except as expressly permitted
by this Declaration. All canceled Trust Securities held by the Property
Trustee shall be disposed of in accordance with its customary procedures, and
the Property Trustee shall thereafter deliver to the Administrative Trustees a
certificate with respect to such disposition.
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SECTION 10.10 Appointment of Registrar and Transfer Agent.
The Administrative Trustees hereby appoint the Property Trustee, The
Chase Manhattan Bank, as registrar and transfer agent with respect to the Trust
Securities.
ARTICLE XI
LIMITATION OF LIABILITY OF HOLDERS OF TRUST SECURITIES, TRUSTEES OR OTHERS
SECTION 11.1 Liability.
(a) Except as expressly set forth in this Declaration,
the Trust Guarantees and the terms of the Trust Securities, the Sponsor and the
Trustees shall not be:
(i) personally liable for the return of any portion of
the capital contributions (or any return thereon) of the Holders of
the Trust Securities, which shall be made solely from assets of the
Trust; or
(ii) required to pay to the Trust or to any Holder of
Trust Securities any deficit upon dissolution of the Trust or
otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust
Act, the Holders of the Trust Securities shall be entitled to the same
limitation of personal liability extended to shareholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.
SECTION 11.2 Exculpation.
(a) No Company Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Trust or any Covered
Person for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Company Indemnified Person in good faith on behalf
of the Trust and in a manner such Company Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Company
Indemnified Person by this Declaration or by law, except that a Company
Indemnified Person shall be liable for any such loss, damage or claim incurred
by reason of such Company Indemnified Person's gross negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and, if selected by such Indemnified
Person, has been
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selected by such Indemnified Person with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Trust Securities might properly be paid.
SECTION 11.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to any other Covered Person, an Indemnified
Person acting under this Declaration shall not be liable to the Trust or to any
other Covered Person for its good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified Person otherwise existing
at law or in equity (other than the duties imposed on the Property Trustee
under the Trust Indenture Act), are agreed by the parties hereto to replace
such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Trust Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative interest of
each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by the Indemnified Person shall not constitute a breach of this
Declaration or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own interests, and
shall have no duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other Person; or
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(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express standard
and shall not be subject to any other or different standard imposed by
this Declaration or by applicable law.
SECTION 11.4 Indemnification.
(a) (i) To the fullest extent permitted by applicable
law, the Sponsor shall indemnify and hold harmless any Company
Indemnified Person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Trust) by reason of
the fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Trust, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the fullest extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a
Company Indemnified Person against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
best interests of the Trust and except that no such indemnification
shall be made in respect of any claim, issue or matter as to which
such Company Indemnified Person shall have been adjudged to be liable
to the Trust unless and only to the extent that the Court of Chancery
of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified Person shall
be successful on the merits or otherwise (including dismissal of an
action without prejudice or the settlement of an action without
admission of liability) in defense of any action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 11.4(a), or in
defense of any claim, issue or matter therein, he shall be
indemnified, to the fullest extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
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(iv) Any indemnification under paragraphs (i) and (ii) of
this Section 11.4(a) (unless ordered by a court) shall be made by the
Sponsor only as authorized in the specific case upon a determination
that indemnification of the Company Indemnified Person is proper in
the circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such determination
shall be made (1) by the Administrative Trustees by a majority vote of
a quorum consisting of such Administrative Trustees who were not
parties to such action, suit or proceeding, (2) if such a quorum is
not obtainable, or, even if obtainable, if a quorum of disinterested
Administrative Trustees so directs, by independent legal counsel in a
written opinion, or (3) by the Holder of the Trust Common Securities.
(v) Expenses (including attorneys' fees) incurred by a
Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to
in paragraphs (i) and (ii) of this Section 11.4(a) shall be paid by
the Sponsor in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such
Company Indemnified Person to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the Sponsor
as authorized in this Section 11.4(a). Notwithstanding the foregoing,
no advance shall be made by the Sponsor if a determination is
reasonably and promptly made (i) by the Administrative Trustees by a
majority vote of a quorum of disinterested Administrative Trustees,
(ii) if such a quorum is not obtainable, or, even if obtainable, if a
quorum of disinterested Administrative Trustees so directs, by
independent legal counsel in a written opinion or (iii) the Holder of
the Trust Common Securities, that, based upon the facts known to the
Administrative Trustees, counsel or the Holder of the Trust Common
Securities at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such person
did not believe to be in or not opposed to the best interests of the
Trust, or, with respect to any criminal proceeding, that such Company
Indemnified Person believed or had reasonable cause to believe his
conduct was unlawful. In no event shall any advance be made in
instances where the Administrative Trustees, independent legal counsel
or the Holder of the Trust Common Securities reasonably determine that
such person deliberately breached his duty to the Trust or Holders of
Trust Securities.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this
Section 11.4(a) shall not be deemed exclusive of any other rights to
which those seeking indemnification and advancement of expenses may be
entitled under any agreement, vote of shareholders or disinterested
directors of the Sponsor or Holders of the Trust Preferred Securities
or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office. All rights to
indemnification under this Section 11.4(a) shall be deemed to be
provided by a contract between the Sponsor and each Company
Indemnified Person who serves in such capacity at any time while this
Section 11.4(a) is in effect. Any repeal or modification of this
Section 11.4(a) shall not affect any rights or obligations then
existing.
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(vii) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or
not the Sponsor would have the power to indemnify him against such
liability under the provisions of this Section 11.4(a).
(viii) For purposes of this Section 11.4(a), references to
"the Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any person
who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent
of another entity, shall stand in the same position under the
provisions of this Section 11.4(a) with respect to the resulting or
surviving entity as he would have with respect to such constituent
entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 11.4(a) shall,
unless otherwise provided when authorized or ratified, continue as to
a Person who has ceased to be a Company Indemnified Person and shall
inure to the benefit of the heirs, executors and administrators of
such a Person.
(b) The Sponsor agrees to indemnify the (i) Property
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Property Trustee
and the Delaware Trustee, and (iv) any officers, directors, shareholders,
members, partners, employees, representatives, custodians, nominees or agents
of the Property Trustee and the Delaware Trustee (each of the Persons in (i)
through (iv) being referred to as a "Fiduciary Indemnified Person") for, and to
hold each Fiduciary Indemnified Person harmless against, any loss, damage,
claim, liability or expense including taxes (other than taxes based on the
income of the Property Trustee or Delaware Trustee) incurred without negligence
or bad faith on the part of the Property Trustee or Delaware Trustee arising
out of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including reasonable legal
fees and expenses) of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder. The obligation to indemnify as set forth in this Section
11.4(b) shall survive the dissolution of the Trust and the termination of this
Declaration.
SECTION 11.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the Property
Trustee may engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or dissimilar to
the business of the Trust, and the Trust and the Holders of Trust Securities
shall have no rights by virtue of this Declaration in and to such independent
ventures or the income or profits derived therefrom, and the pursuit of any
such venture, even if competitive with the business of the Trust, shall not be
deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware
Trustee, nor the Property Trustee shall be obligated to
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present any particular investment or other opportunity to the Trust even if
such opportunity is of a character that, if presented to the Trust, could be
taken by the Trust, and any Covered Person, the Sponsor, the Delaware Trustee
and the Property Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Covered Person, the Delaware
Trustee and the Property Trustee may engage or be interested in any financial
or other transaction with the Sponsor or any Affiliate of the Sponsor, or may
act as depositary for, trustee or agent for, or act on any committee or body of
Holders of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE XII
ACCOUNTING
SECTION 12.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year.
SECTION 12.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Administrative Trustees shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable detail,
each transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The books of account and the records of the
Trust shall be examined by and reported upon as of the end of each Fiscal Year
of the Trust by a firm of independent certified public accountants selected by
the Administrative Trustees.
(b) The Administrative Trustees shall cause to be duly
prepared and delivered to each of the Holders of Trust Securities, any annual
United States federal income tax information statement, required by the Code,
containing such information with regard to the Trust Securities held by each
Holder as is required by the Code and the Treasury Regulations.
Notwithstanding any right under the Code to deliver any such statement at a
later date, the Administrative Trustees shall endeavor to deliver all such
statements within 30 days after the end of each Fiscal Year of the Trust.
(c) The Administrative Trustees shall cause to be duly
prepared and filed with the appropriate taxing authority, an annual United
States federal income tax return, on a Form 1041 or such other form required by
United States federal income tax law, and any other annual income tax returns
required to be filed by the Administrative Trustees on behalf of the Trust with
any state or local taxing authority.
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SECTION 12.3 Banking.
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Subordinated Debentures held by the Property Trustee shall be
made directly to the Property Account and no other funds of the Trust shall be
deposited in the Property Account . The sole signatories for such accounts
shall be designated by the Administrative Trustees; provided, however, that the
Property Trustee shall designate the signatories for the Property Account.
SECTION 12.4 Withholding.
The Trust and the Administrative Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Trust shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably
be requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Administrative Trustees shall
file required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder, the amount withheld
shall be deemed to be a distribution in the amount of the withholding to the
Holder. In the event of any claim over withholding, Holders shall be limited
to an action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding. Notwithstanding
anything herein to the contrary, the Trust and the Administrative Trustees
shall, absent receipt of an opinion of nationally recognized tax counsel to the
contrary, withhold thirty-one percent (31%) (or such other rate as may be
imposed as a result of an amendment to the Code or such lower rate as may be
imposed under an applicable income tax treaty) on the gross amount of any
Distributions on Trust Preferred Securities held by a Holder that is not a
"United States person" within the meaning of Section 7701(a)(30) of the Code.
ARTICLE XIII
AMENDMENTS AND MEETINGS
SECTION 13.1 Amendments.
(a) Except as otherwise provided in this Declaration or
by any applicable terms of the Trust Securities, this Declaration may only be
amended by a written instrument approved and executed by:
(i) the Administrative Trustees (or, if there are more than
two Administrative Trustees, a majority of the Administrative
Trustees);
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<PAGE> 73
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property
Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware
Trustee.
(b) No amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers' Certificate
from each of the Trust and the Sponsor that such amendment is
permitted by, and conforms to, the terms of this Declaration;
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Property Trustee, the Property Trustee shall have first received an
Opinion of Counsel (who may be counsel to the Sponsor or the Trust)
that such amendment is permitted by, and conforms to, the terms of
this Declaration; and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue
to be classified for purposes of United States federal income
taxation as a grantor trust;
(B) cause the Trust to be taxable as a
corporation;
(C) reduce or otherwise adversely affect
the powers of the Property Trustee in contravention of the
Trust Indenture Act; or
(D) cause the Trust to be deemed to be
an Investment Company required to be registered under the 1940
Act.
(c) In the event the consent of the Property Trustee, as
the Holder of the Subordinated Debentures, is required under the Subordinated
Indenture with respect to any amendment, modification or termination of the
Subordinated Indenture or the Subordinated Debentures, the Property Trustee
shall request the direction of the Holders of the Trust Securities with respect
to such amendment, modification or termination and shall vote with respect to
such amendment, modification or termination as directed by a Majority in
Liquidation Amount of the Trust Securities voting together as a single class;
provided, however, that where a consent under the Subordinated Indenture would
require the consent of a Super Majority of the Holders of Subordinated
Debentures the Property Trustee may only give such consent at the direction of
the Holders of at least the proportion in Liquidation Amount of the Trust
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Subordinated Debentures outstanding; provided, further,
that the Property Trustee shall not be obligated to take any action in
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<PAGE> 74
accordance with the directions of the Holders of the Trust Securities under
this Section 13.1(c) unless the Property Trustee has obtained an Opinion of
Counsel (which counsel shall be independent tax counsel) to the effect that for
United States federal income tax purposes the Trust will continue to be
classified as a grantor trust after consummation of such action and each Holder
will be treated as owning an undivided beneficial ownership interest in the
Subordinated Debentures.
(d) At such time after the Trust has issued any Trust
Securities that remain outstanding, any amendment that would (i) adversely
affect the powers, preferences or special rights of the Trust Securities or
(ii) provide for the dissolution, winding-up or termination of the Trust other
than pursuant to the terms of this Declaration, may be effected only with the
approval of the Holders of at least a Majority in Liquidation Amount of the
Trust Securities affected thereby; provided, that if any amendment or proposal
referred to in clause (i) hereof would adversely affect only the Trust
Preferred Securities or the Trust Common Securities, then only the affected
class will be entitled to vote on such amendment or proposal and such amendment
or proposal shall not be effective except with the approval of a Majority in
Liquidation Amount of such class of Trust Securities.
(e) Section 11.1(b) and this Section 13.1 shall not be
amended without the consent of all of the Holders of the Trust Securities.
(f) Article IV shall not be amended without the consent
of the Holders of a Majority in Liquidation Amount of the Trust Common
Securities.
(g) The rights of the Holders of the Trust Common
Securities under Article VI to increase or decrease the number of, and appoint
and remove, Trustees shall not be amended without the consent of the Holders of
a Majority in Liquidation Amount of the Trust Common Securities.
(h) Notwithstanding Section 13.1(c), this Declaration may
be amended without the consent of the Holders of the Trust Securities:
(i) to cure any ambiguity;
(ii) to correct or supplement any provision in this
Declaration that may be defective or inconsistent with any other
provision of this Declaration, or to make any other provisions with
respect to matters or questions arising under this Declaration that
shall not be inconsistent with the other provisions of this
Declaration;
(iii) to add to the covenants, restrictions or obligations
of the Sponsor;
(iv) to conform to any change in the 1940 Act or written
change in interpretation or application of the rules and regulations
promulgated thereunder by any legislative body, court, government
agency or regulatory authority;
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<PAGE> 75
(v) to conform to any change in the Trust Indenture Act
or written change in interpretation or application of the rules and
regulations promulgated thereunder by any legislative body, court,
government agency or regulatory authority; or
(vi) to modify, eliminate and add to any provision of this
Declaration to such extent as may be necessary;
provided, that such amendments do not have a material adverse effect on the
rights, preferences or privileges of the Holders.
SECTION 13.2 Meetings of the Holders of Trust Securities; Action by Written
Consent.
(a) Meetings of the Holders of any class of Trust
Securities may be called at any time by the Administrative Trustees (or as
otherwise provided in this Declaration) to consider and act on any matter on
which Holders of such class of Trust Securities are entitled to act under the
terms of this Declaration, the Trust Guarantees, the rules of any stock
exchange on which the Trust Preferred Securities are listed or admitted for
trading, the Business Trust Act or other applicable law. The Administrative
Trustees shall call a meeting of the Holders of such class if directed to do so
by the Holders of at least 10% in Liquidation Amount of such class of Trust
Securities. Such direction shall be given by delivering to the Administrative
Trustees one or more notices in a writing stating that the signing Holders of
Trust Securities wish to call a meeting and indicating the general or specific
purpose for which the meeting is to be called. Any Holders of Trust Securities
calling a meeting shall specify in writing the Certificates held by the Holders
of Trust Securities exercising the right to call a meeting and only those Trust
Securities specified shall be counted for purposes of determining whether the
required percentage set forth in the second sentence of this paragraph has been
met.
(b) Except to the extent otherwise provided in the terms
of the Trust Securities, the following provisions shall apply to meetings of
Holders of Trust Securities:
(i) notice of any such meeting shall be given to all the
Holders of Trust Securities having a right to vote thereat at least
seven days and not more than 60 days before the date of such meeting.
Any action that may be taken at a meeting of the Holders of Trust
Securities may be taken without a meeting if a consent in writing
setting forth the action so taken is signed by the Holders of Trust
Securities owning not less than the minimum amount in Liquidation
Amount of Trust Securities that would be necessary to authorize or
take such action at a meeting at which all Holders of Trust Securities
having a right to vote thereon were present and voting. Prompt notice
of the taking of action without a meeting shall be given to the
Holders of Trust Securities entitled to vote who have not consented in
writing. The Administrative Trustees may specify that any written
ballot submitted to the Holder for the purpose of taking any action
without a meeting shall be returned to the Trust within the time
specified by the Administrative Trustees;
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<PAGE> 76
(ii) each Holder of a Trust Security may authorize any
Person to act for it by proxy on all matters in which a Holder of
Trust Securities is entitled to participate, including waiving notice
of any meeting, or voting or participating at a meeting. No proxy
shall be valid after the expiration of 11 months from the date thereof
unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the Holder of Trust Securities executing
it. Except as otherwise provided herein, all matters relating to the
giving, voting or validity of proxies shall be governed by the DGCL
relating to proxies, and judicial interpretations thereunder, as if
the Trust were a Delaware corporation and the Holders of the Trust
Securities were shareholders of a Delaware corporation;
(iii) each meeting of the Holders of the Trust Securities
shall be conducted by the Administrative Trustees or by such other
Person that the Administrative Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the
Trust Indenture Act, the Trust Guarantees or the listing rules of any
stock exchange on which the Trust Preferred Securities are then listed
for trading otherwise provides, the Administrative Trustees, in their
sole discretion, shall establish all other provisions relating to
meetings of Holders of Trust Securities, including notice of the time,
place or purpose of any meeting at which any matter is to be voted on
by any Holders of Trust Securities, waiver of any such notice, action
by consent without a meeting, the establishment of a record date,
quorum requirements, voting in person or by proxy or any other matter
with respect to the exercise of any such right to vote.
ARTICLE XIV
REPRESENTATIONS OF PROPERTY
TRUSTEE AND DELAWARE
TRUSTEE
SECTION 14.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee (with appropriate changes to clause (a)) that:
(a) The Property Trustee is a New York banking
corporation with trust powers, duly organized, validly existing and in good
standing under the laws of New York, with trust power and authority to execute
and deliver, and to carry out and perform its obligations under the terms of,
the Declaration;
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<PAGE> 77
(b) The execution, delivery and performance by the
Property Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Property Trustee. The Declaration has been
duly executed and delivered by the Property Trustee and constitutes a legal,
valid and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) The execution, delivery and performance of the
Declaration by the Property Trustee does not conflict with or constitute a
breach of the charter or By-laws of the Property Trustee;
(d) No consent, approval or authorization of, or
registration with or notice to, any New York or federal banking authority is
required for the execution, delivery or performance by the Property Trustee of
this Declaration; and
(e) The Property Trustee, pursuant to this Declaration,
shall hold legal title to, and an ownership interest on behalf of the Holders
of the Trust Securities, in the Subordinated Debentures and agrees that, except
as expressly provided or contemplated by this Agreement, it will not create,
incur or assume, or suffer to exist any mortgage, pledge, hypothecation,
encumbrance, lien or other charge or security interest upon the Subordinated
Debentures.
SECTION 14.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) The Delaware Trustee is a Delaware corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, with power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of, the Declaration;
(b) The Delaware Trustee has been authorized to perform
its obligations under the Trust's certificate of trust and the Declaration.
The Declaration, under Delaware law, constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in
equity or at law);
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<PAGE> 78
(c) No consent, approval or authorization of, or
registration with or notice to, any Delaware or federal banking authority is
required for the execution, delivery or performance by the Delaware Trustee of
the Declaration; and
(d) The Delaware Trustee is an entity which has its
principal place of business in the State of Delaware.
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Administrative
Trustees at the Trust's mailing address set forth below (or such other address
as the Trust may give notice of to the Holders of the Trust Securities and the
other Trustees):
EL PASO ENERGY CAPITAL TRUST I
c/o El Paso Natural Gas Company
1001 Louisiana
30th Floor
Houston, Texas 77002
Attention: Vice President and Treasurer
(b) if given to the Delaware Trustee, at the mailing
address set forth below (or such other address as the Delaware Trustee may give
notice of to the other Trustees):
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Corporate Trustee
Administration Department
(c) if given to the Property Trustee, at its Corporate
Trust Office to the attention of the Corporate Trustee Administration
Department (or such other address as the Property Trustee may give notice of to
the Holders of the Trust Securities and the other Trustees).
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<PAGE> 79
(d) if given to the Holder of the Trust Common
Securities, at the mailing address of the Sponsor set forth below (or such
other address as the Holder of the Trust Common Securities may give notice of
to the Trust and the other Trustees):
EL PASO NATURAL GAS COMPANY
1001 Louisiana
30th Floor
Houston, Texas 77002
Attention: Vice President and Treasurer
(e) if given to any other Holder, at the address set
forth on the books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 15.2 Governing Law.
THIS DECLARATION AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS OF THE STATE OF DELAWARE OR ANY OTHER
JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY JURISDICTION
OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE SHALL NOT BE
APPLICABLE TO THE PARTIES HEREUNDER OR THIS DECLARATION ANY PROVISION OF THE
LAWS (COMMON OR STATUTORY) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT
RELATE TO OR REGULATE, IN A MANNER INCONSISTENT WITH THE TERMS HEREOF (A) THE
FILING WITH ANY COURT OR GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR
SCHEDULES OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST
BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY
FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION,
HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS
PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE
ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F)
RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION
OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR OTHER
MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G) THE ESTABLISHMENT OF
FIDUCIARY OR OTHER STANDARDS OF
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<PAGE> 80
RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE
INCONSISTENT WITH THE LIMITATIONS OR AUTHORITIES AND POWERS OF THE TRUSTEES
HEREUNDER AS SET FORTH OR REFERENCED IN THIS DECLARATION; PROVIDED, FURTHER,
THAT THE IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY TRUSTEE IN CONNECTION
WITH THE ADMINISTRATION OF ITS TRUSTS HEREUNDER SHALL BE GOVERNED BY AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE JURISDICTION OF ITS
INCORPORATION. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY
TO THE TRUST.
SECTION 15.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified
for United States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted to further this intention
of the parties.
SECTION 15.4 Acceptance of Terms of Declaration, Trust Guarantees and
Subordinated Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A HOLDER OR BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS DECLARATION (AND SUCH HOLDER
AND OTHERS SHALL BE DEEMED TO BE A PARTY TO THIS DECLARATION), THE TRUST
GUARANTEES AND THE SUBORDINATED INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT
OF THE TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS
DECLARATION SHALL BE BINDING, OPERATIVE AND EFFECTIVE ON THE TRUST AND SUCH
HOLDER AND SUCH OTHERS.
SECTION 15.5 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 15.6 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
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<PAGE> 81
SECTION 15.7 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 15.8 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees and a duly authorized officer of the Sponsor
to one of such counterpart signature pages. All of such counterpart signature
pages shall be read as though one, and they shall have the same force and
effect as though all of the signers had signed a single signature page.
SECTION 15.9 Holding Company Formation, Consolidations and Mergers.
Notwithstanding anything to the contrary in this Declaration, the
Sponsor may form a holding company by merger with or into a single direct or
indirect wholly owned subsidiary of the Sponsor, whether under Section 251(g) of
the DGCL or otherwise, and in connection therewith the Sponsor may sell, lease
or transfer any of its properties and assets to such holding company. Upon any
consolidation of the Sponsor with, or merger of the Sponsor into, any other
Person or any sale, transfer or lease of the properties and assets of the
Sponsor as, or substantially as, an entirety by the Sponsor or upon any holding
company formation in accordance with the preceding sentence, the successor
Person formed by such consolidation or into which the Sponsor is merged or to
which such sale, transfer or lease is made, or which constitutes the holding
company formed as contemplated in the preceding sentence, shall execute and
deliver to the Property Trustee and instrument of assumption in form
satisfactory to the Property Trustee whereby such successor expressly assumes
the due and punctual performance and observance of all of the covenants and
conditions of this Declaration to be performed by the Sponsor and such successor
Person shall thereupon succeed to, and be substituted for, and may exercise
every right and power of, the Sponsor under this Declaration with the same
effect as if such successor Person had been named originally as the Sponsor
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Declaration.
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 in writing to be
co-obligors jointly and severally with respect to all such obligations and
covenants. Concurrently with the delivery to the Property Trustee of such
instrument of assumption, the Sponsor shall deliver to the Property Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer, sale or lease or the formation of such holding
company and the transactions effected in connection therewith and the related
instrument of assumption comply with this Article and that all conditions
precedent herein provided relating to such transaction and assumption have been
complied with.
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<PAGE> 82
IN WITNESS WHEREOF, each of the undersigned has caused these presents
to be executed as of the day and year first above written.
EL PASO NATURAL GAS COMPANY,
As Sponsor
By:
--------------------------------
Its:
--------------------------------
ADMINISTRATIVE TRUSTEES
----------------------------------------
H. Brent Austin
----------------------------------------
Jeffrey I. Beason
----------------------------------------
C. Dana Rice
THE CHASE MANHATTAN BANK,
As Property Trustee
By:
--------------------------------
Its:
--------------------------------
CHASE MANHATTAN BANK
DELAWARE, As Delaware Trustee
By:
--------------------------------
Its:
--------------------------------
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<PAGE> 83
Exhibit A-1
Number of Trust Convertible
Preferred Securities: [ ]
TPSI-1
CUSIP NO. _________
FORM OF TRUST PREFERRED SECURITY CERTIFICATE
[This Trust Preferred Security is a Global Certificate within the
meaning of the Declaration hereinafter referred to and is registered in the
name of The Depository Trust Company (the "Depositary") or a nominee of the
Depositary. This Trust Preferred Security is exchangeable for Trust Preferred
Securities registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Declaration and no
transfer of this Trust Preferred Security (other than a transfer of this Trust
Preferred Security as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Trust Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York), a New York corporation, to El Paso Energy Capital Trust I or its agent
for registration of transfer, exchange, conversion or payment, and any Trust
Preferred Security issued is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of the Depositary and any
payment hereon is made to Cede & Co. or such other entity as is requested by an
authorized representative of the Depositary, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]*
CERTIFICATE EVIDENCING TRUST PREFERRED SECURITIES
OF
EL PASO ENERGY CAPITAL I TRUST
______% TRUST CONVERTIBLE PREFERRED SECURITIES
(LIQUIDATION AMOUNT $______ PER TRUST CONVERTIBLE PREFERRED SECURITY)
EL PASO ENERGY CAPITAL TRUST I, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
___________________ (the "Holder")
__________________________________
* Insert in Global Certificates
A-1-1
<PAGE> 84
is the registered owner of __,000,000 [or such lesser or greater amount as
shall be noted on the Schedule attached hereto]* preferred securities of the
Trust representing undivided beneficial ownership interests in the assets of
the Trust designated the ____% Trust Convertible Preferred Securities
(Liquidation Amount $______ per Trust Convertible Preferred Security) (the
"Trust Preferred Securities"). The Trust Preferred Securities are freely
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, powers, privileges,
restrictions, preferences and other terms and provisions of the Trust Preferred
Securities represented hereby are set forth in, issued under and shall in all
respects be subject to the provisions of the Amended and Restated Declaration
of Trust dated as of ________________, 1998, as the same may be amended from
time to time (the "Declaration"). Capitalized terms used herein but not
defined shall have the meanings given them in the Declaration. The Holder is
entitled to the benefits of the Trust Preferred Securities Guarantee to the
extent provided therein. Each Holder of a Trust Preferred Security, by
acceptance of this Certificate and each certificate owner, by acquisition of a
beneficial interest in a Certificate, agrees to treat the Subordinated
Debentures as indebtedness for United States federal income tax purposes. The
Sponsor will provide a copy of the Declaration, the Trust Preferred Securities
Guarantee and the Subordinated Indenture to a Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this ___ day of ____________, .
EL PASO ENERGY CAPITAL TRUST I
----------------------------------------
As Administrative Trustee
(See reverse for additional terms)
__________________________________
*Insert in Global Securities only.
A-1-2
<PAGE> 85
CERTIFICATE OF AUTHENTICATION
This is one of the Trust Preferred Securities described in the
within-mentioned Declaration.
THE CHASE MANHATTAN BANK, AS TRUSTEE
By:
------------------------------------
Authorized Officer
[FORM OF REVERSE OF SECURITY]
Holders of Trust Preferred Securities shall be entitled to receive
cumulative cash distributions at a rate per annum of _____% of the stated
Liquidation Amount of $50 per Trust Preferred Security. Distributions on the
Trust Preferred Securities shall, from the Closing Date, accumulate
and be cumulative and shall be payable quarterly only to the extent that the
Trust has funds available for the payment of such distributions in the Property
Account. Distributions not paid on the scheduled quarterly payment date will
accumulate and compound quarterly (to the extent permitted by applicable law)
at the rate of ____% per annum. The term "Distributions" as used herein shall
mean ordinary cumulative distributions in respect of each Fiscal Period
together with any such Compounded Distributions. Amounts available to the
Trust for distribution to the holders of the Trust Preferred Securities will be
limited to payments received by the Trust from the Company on the Subordinated
Debentures or on the Trust Preferred Securities Guarantee. If and to the
extent that the Company makes a payment on the Subordinated Debentures held by
the Property Trustee or under the Trust Preferred Securities Guarantee (the
amount of any such payment being a "Payment Amount"), the Trust shall and the
Property Trustee is directed, to the extent funds are available for that
purpose, to make a Pro Rata Distribution of the Payment Amount to Holders.
The amount of Distributions payable for any period will be computed
for any full quarterly Distribution period on the basis of a 360-day year of
twelve 30-day months, and for any period shorter than a full quarterly
Distribution period on the basis of the actual number of days elapsed in a
90-day quarter.
Except as otherwise described herein, Distributions on the Trust
Preferred Securities will be cumulative, will accumulate from the Closing Date
and will be payable quarterly in arrears, on March 31, June 30, September 30
and December 31 of each year, commencing on _____________, 1998, if, as and
when available for payment by the Property Trustee. The Company has the right
under the Subordinated Indenture to defer payments of interest by extending the
interest payment period from time to time on the Subordinated Debentures for a
period not exceeding 20 consecutive quarters (each an "Extension Period");
provided, that no Extension Period shall last beyond the date of the maturity
or any redemption date of the Subordinated Debentures and, as a consequence of
such deferral, Distributions will also be deferred. Despite such deferral,
quarterly Distributions will
A-1-3
<PAGE> 86
continue to accrue with interest thereon (to the extent permitted by applicable
law) at the rate specified above compounded quarterly during any such Extension
Period. Prior to the termination of any such Extension Period, the Company may
further extend such Extension Period; provided, that such Extension Period
together with all such previous and further extensions thereof may not exceed
20 consecutive quarters or extend beyond the maturity or any redemption date of
the Subordinated Debentures.
Distributions will be payable to the Holders of record of Trust
Preferred Securities as they appear on the books and records of the Trust on
the relevant record dates, which will be the 15th day of the month of the
relevant payment dates (that is, each __________ 15, __________ 15, __________
15 and __________ 15). In the event that any date on which Distributions are
payable is not a Business Day, payment of such Distribution shall be made on
the next succeeding day which is a Business Day (without any interest or other
payment in respect of any such delay) except that, if such Business Day falls
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, with the same force and effect as if made
on such date. Payments of accumulated Distributions will be payable to Holders
of record of Trust Preferred Securities as they appear on the books and records
of the Trust on the record date with respect to the payment date for the Trust
Preferred Securities which corresponds to the payment date fixed by the Company
with respect to the payment of amounts due on the Subordinated Debentures.
The Trust Preferred Securities shall be redeemable and convertible as
provided in the Declaration.
A-1-4
<PAGE> 87
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust Preferred
Security certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------- agent to transfer this
Trust Preferred Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date: ____________________________
Signature:__________________________________________________________
(Sign exactly as your name appears on the other side of this Trust Preferred
Security Certificate)
A-1-5
<PAGE> 88
NOTICE OF CONVERSION
To: The Chase Manhattan Bank
Conversion Agent for El Paso Energy Capital Trust I
The undersigned owner of this Trust Preferred Security or Trust
Preferred Securities hereby irrevocably exercises the option to convert this
Trust Preferred Security or Trust Preferred Securities, or the portion
designated below, into Common Stock of El Paso Natural Gas Company, or its
successor, (the "Common Stock") in accordance with the terms of the Amended and
Restated Declaration of Trust (the "Declaration"), dated as of February ____,
1998, among H. Brent Austin, Jeffrey I. Beason and C. Dana Rice, as
Administrative Trustees, Chase Manhattan Bank Delaware, as Delaware Trustee,
The Chase Manhattan Bank, as Property Trustee, El Paso Natural Gas Company, as
Sponsor, and the Holders, from time to time, of individual beneficial interests
in the Trust to be issued pursuant to the Declaration. Pursuant to the
aforementioned exercise of the option to convert the Trust Preferred Security
or Trust Preferred Securities, the undersigned hereby directs the Conversion
Agent (as that term is defined in the Declaration) to (i) exchange such Trust
Preferred Security or Trust Preferred Securities for a portion of the
Subordinated Debentures (as that term is defined in the Declaration) held by
the Trust (at the rate of exchange specified in the Declaration) and (ii)
immediately convert such Subordinated Debentures on behalf of the undersigned,
into Common Stock (at the conversion rate specified in the Declaration).
The undersigned also hereby directs the Conversion Agent that
the shares of Common Stock issuable and deliverable upon conversion, together
with any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in the
assignment below. If shares are to be issued in the name of a person other
than the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
<TABLE>
<S> <C>
Date:
--------------------------
in whole
--------
in part Number of Trust Preferred Securities to be converted ($50
--------- Liquidation Amount or integral multiples thereof):
----------
</TABLE>
A-1-6
<PAGE> 89
<TABLE>
<S> <C>
If a name or names other than the undersigned, please
indicate in the spaces below the name or names in which the
shares of Common Stock are to be issued, along with the
address or addresses of such person or persons.
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
Signature (for conversion only) Please Print or Typewrite
Name and Address, Including Zip Code, and Social Security or
Other Identifying Number
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
(Name, Address (including zip code)
and Social Security or Tax ID No.)
</TABLE>
Signature Guarantee: *
_________________
* Signature must be guaranteed by an institution which is a member of
one of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee programs
acceptable to the Conversion Agent.
A-1-7
<PAGE> 90
SCHEDULE*
The notations on the following table evidence decreases in the number
of Trust Preferred Securities evidenced by this Global certificate resulting
from exchanges made in connection with conversions or increases resulting from
the exercise of the Over-Allotment Option.
<TABLE>
<S> <C> <C>
Decrease or Increase in Number of Number of Trust Notation made by
Trust Preferred Preferred Securities Registrar
Securities after such Decrease or Increase
</TABLE>
_________________________________________
* Insert in Global Certificates only.
A-1-8
<PAGE> 91
Exhibit A-2
Number of Trust Convertible
Common Securities: [ ]
TCSI-
FORM OF TRUST COMMON SECURITY CERTIFICATE
CERTIFICATE EVIDENCING TRUST CONVERTIBLE COMMON SECURITIES
OF
EL PASO ENERGY CAPITAL TRUST I
_____% TRUST CONVERTIBLE COMMON SECURITIES
(LIQUIDATION AMOUNT $______ PER TRUST CONVERTIBLE COMMON SECURITY)
EL PASO ENERGY CAPITAL TRUST I, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that El
Paso Natural Gas Company, a Delaware corporation (the "Holder"), is the
registered owner of _______ common securities of the Trust representing
undivided beneficial ownership interests in the assets of the Trust designated
the ____% Trust Convertible Common Securities (Liquidation Amount $50 per Trust
Convertible Common Security) (the "Trust Common Securities"). The designation,
rights, powers, privileges, restrictions, preferences and other terms and
provisions of the Trust Common Securities represented hereby are set forth in,
issued under and shall in all respects be subject to the provisions of the
Amended and Restated Declaration of Trust dated as of ________________, 1998,
as the same may be amended from time to time (the "Declaration"). Capitalized
terms used herein but not defined shall have the meanings given them in the
Declaration. The Holder is entitled to the benefits of the Trust Common
Securities Guarantee to the extent provided therein. Each Holder of a Trust
Common Security, by acceptance of this Certificate, agrees to treat the
Subordinated Debentures as indebtedness for United States federal income tax
purposes. The Sponsor will provide a copy of the Declaration, the Trust Common
Securities Guarantee and the Subordinated Indenture to a Holder without charge
upon written request to the Sponsor at its principal place of business. THE
TRUST COMMON SECURITIES ARE TRANSFERABLE ON THE BOOKS AND RECORDS OF THE TRUST
ONLY IN ACCORDANCE WITH THE TERMS OF THE DECLARATION.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this ____day of ____________, .
EL PASO ENERGY CAPITAL TRUST I
----------------------------------------
as Administrative Trustee
A-2-1
<PAGE> 92
Exhibit A-2
CERTIFICATE OF AUTHENTICATION
This is one of the Trust Common Securities described in the
within-mentioned Declaration.
THE CHASE MANHATTAN BANK, AS TRUSTEE
By:
-------------------------------
Authorized Officer
(See reverse for additional terms)
[FORM OF REVERSE OF SECURITY]
Holders of Trust Common Securities shall be entitled to receive
cumulative cash distributions at a rate per annum of ___% of the stated
Liquidation Amount of $50 per Trust Common Security. Distributions on the
Trust Common Securities shall, from the date of original issue, accumulate and
be cumulative and shall be payable quarterly only to the extent that the Trust
has funds available for the payment of such distributions in the Property
Account. Distributions not paid on the scheduled quarterly payment date will
accumulate and compound quarterly (to the extent permitted by applicable law)
at the rate of ___% per annum. The term "Distributions" as used herein shall
mean ordinary cumulative distributions in respect of each Fiscal Period
together with any such Compounded Distributions. Amounts available to the
Trust for distribution to the holders of the Trust Common Securities will be
limited to payments received by the Trust from the Company on the Subordinated
Debentures or on the Trust Common Securities Guarantee. If and to the extent
that the Company makes a payment on the Subordinated Debentures held by the
Property Trustee or under the Trust Common Securities Guarantee (the amount of
any such payment being a "Payment Amount"), the Trust shall and the Property
Trustee is directed, to the extent funds are available for that purpose, to
make a Pro Rata Distribution of the Payment Amount to Holders.
The amount of Distributions payable for any period will be computed
for any full quarterly Distribution period on the basis of a 360-day year of
twelve 30-day months, and for any period shorter than a full quarterly
Distribution period on the basis of the actual number of days elapsed in a
90-day quarter.
Except as otherwise described herein, distributions on the Trust
Common Securities will be cumulative, will accumulate from the Closing Date and
will be payable quarterly in arrears, on
A-2-2
<PAGE> 93
March 31, June 30, September 30 and December 31 of each year, commencing on
____________, 1998 if, as and when available for payment by the Property
Trustee. The Company has the right under the Subordinated Indenture to defer
payments of interest by extending the interest payment period from time to time
on the Subordinated Debentures for a period not exceeding 20 consecutive
quarters (each an "Extension Period"); provided, that no Extension Period shall
last beyond the date of the maturity or any redemption date of the Subordinated
Debentures and, as a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to
accrue with interest thereon (to the extent permitted by applicable law) at the
rate specified above compounded quarterly during any such Extension Period.
Prior to the termination of any such Extension Period, the Company may further
extend such Extension Period; provided, that such Extension Period together
with all such previous and further extensions thereof may not exceed 20
consecutive quarters or extend beyond the maturity or any redemption date of
the Subordinated Debentures.
Distributions will be payable to the Holders of record of Trust Common
Securities as they appear on the books and records of the Trust on the relevant
record dates, which will be the fifteenth day of the month of the relevant
payment dates (that is, each __________ 15, __________ 15, __________ 15 and
__________ 15). In the event that any date on which distributions are payable
is not a Business Day, payment of the Distribution shall be made on the next
succeeding day which is a Business Day (without any interest or other payment
in respect of any such delay) except that, if such Business Day falls in the
next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. Payments of accumulated Distributions will be payable to Holders
of record of Trust Common Securities as they appear on the books and records of
the Trust on the record date with respect to the payment date for the Trust
Common Securities which corresponds to the payment date fixed by the Company
with respect to amounts due on the Subordinated Debentures.
The Trust Common Securities shall be redeemable and convertible as
provided in the Declaration.
A-2-3
<PAGE> 94
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust Common
Security certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------- agent to transfer this
Trust Common Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date: ____________________________
Signature:__________________________________________________________
(Sign exactly as your name appears on the other side of this Trust Common
Security Certificate)
A-2-4
<PAGE> 95
NOTICE OF CONVERSION
To: The Chase Manhattan Bank
Conversion Agent for El Paso Energy Capital Trust I
The undersigned owner of this Trust Common Security or Trust Common
Securities hereby irrevocably exercises the option to convert this Trust Common
Security or Trust Common Securities, or the portion designated below, into
Common Stock of El Paso Natural Gas Company, or its successor, (the "Common
Stock") in accordance with the terms of the Amended and Restated Declaration of
Trust (the "Declaration"), dated as of February ____, 1998, among H. Brent
Austin, Jeffrey I. Beason and C. Dana Rice, as Administrative Trustees, Chase
Manhattan Bank Delaware, as Delaware Trustee, The Chase Manhattan Bank, as
Property Trustee, El Paso Natural Gas Company, as Sponsor, and the Holders,
from time to time, of individual beneficial interests in the Trust to be issued
pursuant to the Declaration. Pursuant to the aforementioned exercise of the
option to convert the Trust Common Security or Trust Common Securities, the
undersigned hereby directs the Conversion Agent (as that term is outlined in
the Declaration) to (i) exchange such Trust Common Security or Trust Common
Securities for a portion of the Subordinated Debentures (as that term is
defined in the Declaration) held by the Trust (at the rate of exchange
specified in the Declaration) and (ii) immediately convert such Subordinated
Debentures on behalf of the undersigned, into Common Stock (at the conversion
rate specified in the Declaration).
The undersigned also hereby directs the Conversion Agent that
the shares of Common Stock issuable and deliverable upon conversion, together
with any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in the
assignment below. If shares are to be issued in the name of a person other
than the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
<TABLE>
<S> <C> <C>
Date:
--------------------------
in whole
--------
in part Number of Trust Common Securities to be converted ($50
--------- Liquidation Amount or integral multiples thereof):
----------
</TABLE>
A-2-5
<PAGE> 96
<TABLE>
<S> <C>
If a name or names other than the undersigned, please
indicate in the spaces below the name or names in which the
shares of Common Stock are to be issued, along with the
address or addresses of such person or persons.
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
Signature (for conversion only) Please Print or Typewrite
Name and Address, Including Zip Code, and Social Security or
Other Identifying Number
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
(Name, Address (including zip code)
and Social Security or Tax ID No.)
</TABLE>
Signature Guarantee: *
_________________
* Signature must be guaranteed by an institution which is a member of
one of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee programs
acceptable to the Conversion Agent.
A-2-6
<PAGE> 1
EXHIBIT 2.7
TRUST CONVERTIBLE PREFERRED SECURITIES
GUARANTEE AGREEMENT
EL PASO ENERGY CAPITAL TRUST I
DATED AS OF ________________, 1998
<PAGE> 2
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INTERPRETATION
<TABLE>
<S> <C> <C>
SECTION 1.1 Definitions and Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.2 Lists of Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.3 Reports by the Trust Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.4 Periodic Reports to Trust Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.5 Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.6 Guarantee Events of Default; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.7 Guarantee Event of Default; Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.8 Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Trust Preferred Guarantee Trustee . . . . . . . . . . . . . . . . 11
SECTION 3.2 Certain Rights of Trust Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.3 Not Responsible for Recitals or Issuance of Trust
Preferred Securities Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE IV
TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Trust Preferred Guarantee Trustee; Eligibility . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.2 Appointment, Removal and Resignation of Trust
Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.2 Waiver of Notice and Demand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
- i -
<PAGE> 3
<TABLE>
<S> <C> <C>
SECTION 5.3 Obligations Not Affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.4 Rights of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.5 Guarantee of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.6 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.7 Independent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6.2 Ranking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VII
TERMINATION
SECTION 7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VIII
CERTAIN COVENANTS
SECTION 8.1 Payment of Additional Sums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 8.2 Continued Ownership of Trust Common Securities, Etc. . . . . . . . . . . . . . . . . . . . 21
ARTICLE IX
INDEMNIFICATION, ETC.
SECTION 9.1 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 9.2 Fees, Expenses and Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 10.2 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 10.3 Holding Company Formation, Consolidations and Mergers . . . . . . . . . . . . . . . . . . . 23
SECTION 10.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 10.5 Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 10.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
</TABLE>
- ii -
<PAGE> 4
EL PASO NATURAL GAS COMPANY
TRUST CONVERTIBLE PREFERRED SECURITIES
GUARANTEE AGREEMENT
This Trust Convertible Preferred Securities Guarantee
Agreement (the "Trust Preferred Securities Guarantee"), dated as of
________________, 1998, is executed and delivered by El Paso Natural Gas
Company, a Delaware corporation (the "Guarantor"), and The Chase Manhattan
Bank, a New York banking corporation, as trustee (the "Trust Preferred
Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Trust Preferred Securities (as defined herein) of El Paso
Energy Capital Trust I, a Delaware statutory business trust (the "Issuer").
R E C I T A L S:
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of ________________, 1998, among the
trustees of the Issuer named therein, El Paso Natural Gas Company, as sponsor,
and the holders from time to time of undivided beneficial interests in the
assets of the Issuer, the Issuer is issuing on the date hereof 6,000,000 Trust
Convertible Preferred Securities, having an aggregate Liquidation Amount of
$300,000,000, designated the ____% Trust Convertible Preferred Securities,
which amounts exclude 900,000 ____% Trust Convertible Preferred Securities
having an aggregate Liquidation Amount of $45,000,000 that are subject to
purchase pursuant to an underwriters' over-allotment option (all _____% Trust
Convertible Preferred Securities issued by the Issuer, including any issued in
connection with such over-allotment option, are referred to herein collectively
as the "Trust Preferred Securities"); and
WHEREAS, as an incentive for the Holders to purchase the Trust
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Trust Preferred Securities Guarantee, to
pay to the Holders of the Trust Preferred Securities the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Trust Common Securities Guarantee"), with
substantially identical terms to this Trust Preferred Securities Guarantee for
the benefit of the holders of the Trust Common Securities (as defined herein),
except that if the Guarantor is in default on any of its obligations under the
Trust Preferred Securities Guarantee or the Subordinated Indenture, the rights
of holders of the Trust Common Securities to receive "Guarantee Payments" (as
such term is defined in the Trust Common Securities Guarantee) under the Trust
Common Securities Guarantee are subordinated, to the extent and in the manner
set forth in the Trust Common Securities Guarantee, to the rights of Holders of
Trust Preferred Securities to receive Guarantee Payments under this Trust
Preferred Securities Guarantee;
<PAGE> 5
NOW, THEREFORE, in consideration of the purchase by each
Holder of Trust Preferred Securities, which purchase the Guarantor hereby
acknowledges shall benefit the Guarantor, the Guarantor executes and delivers
this Trust Preferred Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Trust Preferred Securities Guarantee, unless the
context otherwise requires:
(a) Capitalized terms used in this Trust Preferred Securities
Guarantee but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) Capitalized terms used in this Trust Preferred Securities
Guarantee but not otherwise defined herein shall have the meanings assigned to
them in the Declaration or the Subordinated Indenture, as the case may be;
(c) A term defined anywhere in this Trust Preferred Securities
Guarantee has the same meaning throughout;
(d) All references to "the Trust Preferred Securities Guarantee"
or "this Trust Preferred Securities Guarantee" are to this Trust Preferred
Securities Guarantee as modified, supplemented or amended from time to time;
(e) All references to this Trust Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Trust Preferred
Securities Guarantee, unless otherwise specified;
(f) A term defined in the Trust Indenture Act has the same meaning
when used in this Trust Preferred Securities Guarantee, unless otherwise
defined in this Trust Preferred Securities Guarantee or unless the context
otherwise requires; and
(g) A reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
405 under the Securities Act of 1933, as amended, or any successor rule
thereunder; provided, however, that an Affiliate of the Guarantor shall not be
deemed to include the Issuer.
"Business Day" means any day other than a day on which banking
institutions in the City of New York are authorized or required by law or
executive order to close.
- 4 -
<PAGE> 6
"Corporate Trust Office" means the principal corporate trust
office of the Trust Preferred Guarantee Trustee in the Borough of Manhattan,
the City of New York, which office at the date hereof is located at 450 West
33rd Street, New York, New York 10001.
"Covered Person" means any Holder or beneficial owner of Trust
Preferred Securities.
"Guarantee Event of Default" means a default by the Guarantor
on any of its payment or other obligations under this Trust Preferred
Securities Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Trust Preferred
Securities, to the extent not paid or made by the Issuer: (i) any accumulated
and unpaid Distributions (as defined in the Declaration) that are required to
be paid on such Trust Preferred Securities, to the extent the Issuer has funds
legally available therefor at such time, (ii) the redemption price, including
all accumulated and unpaid Distributions to the date of redemption (the
"Redemption Price"), to the extent the Issuer has funds legally available
therefor at such time, with respect to any Trust Preferred Securities called
for redemption by the Issuer, and (iii) upon a voluntary or involuntary
termination, dissolution, winding up or liquidation of the Issuer (other than
in connection with the distribution of Subordinated Debentures to the Holders
in exchange for Trust Preferred Securities as provided in the Declaration or
the conversion or redemption of all of the Trust Preferred Securities), the
lesser of (a) the aggregate of the Liquidation Amount and all accumulated and
unpaid Distributions on the Trust Preferred Securities to the date of payment,
to the extent the Issuer has funds legally available therefor, and (b) the
amount of assets of the Issuer, after satisfaction of all liabilities,
remaining available for distribution to Holders in liquidation of the Issuer
(in either case, the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and
records of the Issuer of any Trust Preferred Securities; provided, however,
that, in determining whether holders of the requisite percentage of Trust
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not apply to Trust Preferred Securities beneficially
owned by the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Trust Preferred Guarantee
Trustee, any Affiliate of the Trust Preferred Guarantee Trustee, or any
officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Trust Preferred
Guarantee Trustee.
"Liquidation Amount" has the meaning assigned to such term in
the Declaration.
"Majority in Liquidation Amount of the Trust Preferred
Securities" means, except as provided by the Trust Indenture Act, a vote by
Holder(s) of Trust Preferred Securities, voting separately as a class, of more
than 50% of the aggregate Liquidation Amount of all Trust Preferred Securities.
- 5 -
<PAGE> 7
"Officers' Certificate" means, with respect to any Person (who
is not an individual), a certificate signed by the Chairman of the Board, the
President, a Vice President or the Treasurer, and by an Assistant Treasurer,
the Secretary or an Assistant Secretary of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Preferred Securities Guarantee (other than pursuant
to Section 314(a)(4) of the Trust Indenture Act) shall include:
(a) A statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definition relating
thereto;
(b) A brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) A statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) A statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Trust
Preferred Guarantee Trustee, the chairman or vice-chairman of the board of
directors, the chairman or vice-chairman of the executive committee of the
board of directors, the president, any vice president (whether or not
designated by a number or a word or words added before or after the title "vice
president"), the secretary, any assistant secretary the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any senior trust
officer, any trust officer or assistant trust officer, or any other officer of
the Trust Preferred Guarantee Trustee customarily performing functions similar
to those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Rights Agreement" means the Amended and Restated Shareholder
Rights Agreement dated July 23, 1997, between the Guarantor and the First
National Bank of Boston, as rights agent, or any successor to such Rights
Agreement.
"Senior Indebtedness" means any indebtedness of the Guarantor
for money borrowed, except for any such indebtedness that is by its terms
subordinated to or pari passu with the Subordinated Debentures.
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"Subordinated Indenture" means the Subordinated Indenture,
dated as of ________________, 1998, between the Company and The Chase Manhattan
Bank, as trustee, as supplemented by that certain First Supplemental Indenture,
dated as of ________________, 1998, as further amended or supplemented from
time to time.
"Successor Trust Preferred Guarantee Trustee" means a
successor Trust Preferred Guarantee Trustee possessing the qualifications to
act as Trust Preferred Guarantee Trustee under Section 4.1.
"Trust Common Securities" means the common securities
representing subordinated undivided beneficial interests in the assets of the
Issuer in accordance with the Declaration that are issued by the Issuer on the
Closing Date or Option Closing Date (as such terms are defined in the
Underwriting Agreement). All Trust Common Securities issued by the Trust are
deemed to have been issued as of the Closing Date.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trust Preferred Guarantee Trustee" means The Chase Manhattan
Bank, a New York banking corporation, until a Successor Trust Preferred
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Trust Preferred Securities Guarantee and thereafter means
each such Successor Trust Preferred Guarantee Trustee.
"Trust Preferred Securities" has the meaning assigned to such
term in the preamble of this Agreement. All Trust Preferred Securities issued
by the Trust are deemed to have been issued as of the Closing Date.
"Trust Securities" means the Trust Common Securities together
with the Trust Preferred Securities.
"Underwriting Agreement" means that certain Underwriting
Agreement, dated as of March ___, 1998, among the Sponsor, the Issuer and
the several underwriters named therein.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Trust Preferred Securities Guarantee is subject
to the provisions of the Trust Indenture Act that are required to be part of
this Trust Preferred Securities Guarantee and shall, to the extent applicable,
be governed by such provisions; and
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(b) If and to the extent that any provision of this Trust
Preferred Securities Guarantee limits, qualifies or conflicts with the duties
imposed by Section 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
SECTION 2.2 Lists of Holders of Securities
(a) The Trust Preferred Guarantee Trustee shall preserve
in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Holders of Trust Preferred
Securities. If the Trust Preferred Guarantee Trustee is not the Registrar
under the Declaration, the Guarantor shall furnish to the Trust Preferred
Guarantee Trustee semi-annually on or before June 15 and December 15 in each
year, and at such other times as the Trust Preferred Guarantee Trustee may
request in writing, a list, in such form and as of such date as the Trust
Preferred Guarantee Trustee may require, containing all the information in the
possession or control of the Registrar under the Declaration, the Guarantor or
any of its Paying Agents other than the Trust Preferred Guarantee Trustee as to
the names and addresses of Holders of Trust Preferred Securities.
(b) The Trust Preferred Guarantee Trustee shall comply
with its obligations under Sections 311(a), 311(b) and Section 312(b) of the
Trust Indenture Act.
SECTION 2.3 Reports by the Trust Preferred Guarantee Trustee
Within 60 days after May 15 of each calendar year, the Trust
Preferred Guarantee Trustee shall provide to the Holders of the Trust Preferred
Securities such reports as are required by Section 313(a) of the Trust
Indenture Act, if any, in the form and in the manner provided by Section 313 of
the Trust Indenture Act. The Trust Preferred Guarantee Trustee shall also
comply with the other requirements of Section 313 of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Trust Preferred Guarantee Trustee
The Guarantor shall provide to the Trust Preferred Guarantee
Trustee such documents, reports and information as required by Section 314 (if
any) and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act, provided that such compliance certificate shall
be delivered on or before 120 days after the end of each fiscal year of the
Guarantor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Trust Preferred Guarantee
Trustee such evidence of compliance with the conditions precedent, if any,
provided for in this Trust Preferred Securities Guarantee that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
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SECTION 2.6 Guarantee Events of Default; Waiver
The Holders of a Majority in Liquidation Amount of Trust
Preferred Securities may, by vote, on behalf of the Holders of all of the Trust
Preferred Securities, waive any past Guarantee Event of Default and its
consequences. Upon such waiver, any such Guarantee Event of Default shall
cease to exist, and any Guarantee Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Trust Preferred Securities
Guarantee, but no such waiver shall extend to any subsequent or other default
or Guarantee Event of Default or impair any right consequent thereon.
SECTION 2.7 Guarantee Event of Default; Notice
(a) The Trust Preferred Guarantee Trustee shall, within
90 days after the occurrence of a Guarantee Event of Default, transmit by mail,
first class postage prepaid, to the Holders of the Trust Preferred Securities,
notices of all Guarantee Events of Default actually known to a Responsible
Officer of the Trust Preferred Guarantee Trustee charged with the
administration of this Trust Preferred Securities Guarantee, unless such
defaults have been cured before the giving of such notice, provided, that,
except in the case of default in any Guarantee Payment, the Trust Preferred
Guarantee Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer of the Trust Preferred Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Trust Preferred Securities.
(b) The Trust Preferred Guarantee Trustee shall not be
deemed to have knowledge of any Guarantee Event of Default unless the Trust
Preferred Guarantee Trustee shall have received notice thereof from the
Guarantor or a Holder, or a Responsible Officer of the Trust Preferred
Guarantee Trustee charged with the administration of the Declaration shall have
obtained actual knowledge, of such Guarantee Event of Default.
SECTION 2.8 Conflicting Interests
The Declaration shall be deemed to be specifically described
in this Trust Preferred Securities Guarantee for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Trust Preferred Guarantee Trustee
(a) This Trust Preferred Securities Guarantee shall be
held by the Trust Preferred Guarantee Trustee for the benefit of the Holders of
the Trust Preferred Securities, and the Trust
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Preferred Guarantee Trustee shall not transfer this Trust Preferred Securities
Guarantee to any Person except a Holder of Trust Preferred Securities
exercising his or her rights pursuant to Section 5.4(b) or to a Successor Trust
Preferred Guarantee Trustee on acceptance by such Successor Trust Preferred
Guarantee Trustee of its appointment to act as Successor Trust Preferred
Guarantee Trustee. The right, title and interest of the Trust Preferred
Guarantee Trustee shall automatically vest in any Successor Trust Preferred
Guarantee Trustee, and such vesting and succession of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Trust Preferred Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a
Responsible Officer of the Trust Preferred Guarantee Trustee charged with the
administration of this Trust Preferred Securities Guarantee has occurred and is
continuing, the Trust Preferred Guarantee Trustee shall enforce this Trust
Preferred Securities Guarantee for the benefit of the Holders of the Trust
Preferred Securities.
(c) The Trust Preferred Guarantee Trustee, before the
occurrence of any Guarantee Event of Default and after the curing or waiver of
all Guarantee Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this Trust Preferred
Securities Guarantee, and no implied covenants shall be read into this Trust
Preferred Securities Guarantee against the Trust Preferred Guarantee Trustee.
In case a Guarantee Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6) and is actually known to a Responsible Officer
of the Trust Preferred Guarantee Trustee charged with the administration of
this Trust Preferred Securities Guarantee, the Trust Preferred Guarantee
Trustee shall exercise such of the rights and powers vested in it by this Trust
Preferred Securities Guarantee, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Trust Preferred Securities
Guarantee shall be construed to relieve the Trust Preferred Guarantee Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(i) Prior to the occurrence of any Guarantee
Event of Default and after the curing or waiving of all such Guarantee
Events of Default that may have occurred:
(A) The duties and obligations of the
Trust Preferred Guarantee Trustee shall be determined solely
by the express provisions of this Trust Preferred Securities
Guarantee, and the Trust Preferred Guarantee Trustee shall not
be liable except for the performance of such duties and
obligations as are specifically set forth in this Trust
Preferred Securities Guarantee, and no implied covenants or
obligations shall be read into this Trust Preferred Securities
Guarantee against the Trust Preferred Guarantee Trustee; and
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(B) In the absence of bad faith on the
part of the Trust Preferred Guarantee Trustee, the Trust
Preferred Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished
to the Trust Preferred Guarantee Trustee and conforming to the
requirements of this Trust Preferred Securities Guarantee; but
in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to
the Trust Preferred Guarantee Trustee, the Trust Preferred
Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of
this Trust Preferred Securities Guarantee;
(ii) The Trust Preferred Guarantee Trustee shall
not be liable for any error of judgment made in good faith by a
Responsible Officer of the Trust Preferred Guarantee Trustee, unless
it shall be proved that the Trust Preferred Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment
was made;
(iii) The Trust Preferred Guarantee Trustee shall
not be liable with respect to any action taken or omitted to be taken
by it in good faith in accordance with the direction of the Holders of
a Majority in Liquidation Amount of the Trust Preferred Securities
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trust Preferred Guarantee Trustee, or
exercising any trust or power conferred upon the Trust Preferred
Guarantee Trustee under this Trust Preferred Securities Guarantee; and
(iv) No provision of this Trust Preferred
Securities Guarantee shall require the Trust Preferred Guarantee
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Trust Preferred
Guarantee Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not assured to it under the
terms of this Trust Preferred Securities Guarantee or indemnity,
reasonably satisfactory to the Trust Preferred Guarantee Trustee,
against such risk or liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Trust Preferred Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Trust Preferred Guarantee Trustee may
conclusively rely, and shall be fully protected in acting or
refraining from acting, upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
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<PAGE> 13
(ii) Any direction or act of the Guarantor
contemplated by this Trust Preferred Securities Guarantee shall be
sufficiently evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Trust
Preferred Securities Guarantee, the Trust Preferred Guarantee Trustee
shall deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Trust
Preferred Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the
Guarantor.
(iv) The Trust Preferred Guarantee Trustee shall
have no duty to see to any recording, filing or registration of any
instrument (or any rerecording, refiling or reregistration thereof).
(v) The Trust Preferred Guarantee Trustee may
consult with counsel of its selection, and the advice or opinion of
such counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion. Such counsel may be counsel to the Guarantor or
any of its Affiliates and may include any of its employees. The Trust
Preferred Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Preferred
Securities Guarantee from any court of competent jurisdiction.
(vi) The Trust Preferred Guarantee Trustee shall
be under no obligation to exercise any of the rights or powers vested
in it by this Trust Preferred Securities Guarantee at the request or
direction of any Holder, unless such Holder shall have provided to the
Trust Preferred Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Trust Preferred Guarantee Trustee,
against the costs, expenses (including attorneys' fees and expenses
and the expenses of the Trust Preferred Guarantee Trustee's agents,
nominees or custodians) and liabilities that might be incurred by it
in complying with such request or direction, including such reasonable
advances as may be requested by the Trust Preferred Guarantee Trustee;
provided that, nothing contained in this Section 3.2(a)(vi) shall be
taken to relieve the Trust Preferred Guarantee Trustee, upon the
occurrence of a Guarantee Event of Default, of its obligation to
exercise the rights and powers vested in it by this Trust Preferred
Securities Guarantee.
(vii) The Trust Preferred Guarantee Trustee shall
not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but
the Trust Preferred Guarantee Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it
may see fit.
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(viii) The Trust Preferred Guarantee Trustee may
execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, nominees,
custodians or attorneys, and the Trust Preferred Guarantee Trustee
shall not be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it hereunder.
(ix) Any action taken by the Trust Preferred
Guarantee Trustee or its agents hereunder shall bind the Holders of
the Trust Preferred Securities, and the signature of the Trust
Preferred Guarantee Trustee or its agents alone shall be sufficient
and effective to perform any such action. No third party shall be
required to inquire as to the authority of the Trust Preferred
Guarantee Trustee to so act or as to its compliance with any of the
terms and provisions of this Trust Preferred Securities Guarantee,
both of which shall be conclusively evidenced by the Trust Preferred
Guarantee Trustee or its agent taking such action.
(x) Whenever in the administration of this Trust
Preferred Securities Guarantee the Trust Preferred Guarantee Trustee
shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder,
the Trust Preferred Guarantee Trustee (i) may request instructions
from the Holders of a Majority in Liquidation Amount of the Trust
Preferred Securities, (ii) may refrain from enforcing such remedy or
right or taking such other action until such instructions are
received, and (iii) shall be fully protected in conclusively relying
on or acting in accordance with such instructions.
(xi) The Trust Preferred Guarantee Trustee shall
not be liable for any action taken, suffered, or omitted to be taken
by it in good faith, without negligence, and reasonably believed by it
to be authorized or within the discretion or rights or powers
conferred upon it by this Trust Preferred Securities Guarantee.
(b) No provision of this Trust Preferred Securities
Guarantee shall be deemed to impose any duty or obligation on the Trust
Preferred Guarantee Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it in any jurisdiction in
which it shall be illegal, or in which the Trust Preferred Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Trust Preferred
Guarantee Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Trust Preferred
Securities Guarantee
The recitals contained in this Trust Preferred Securities
Guarantee shall be taken as the statements of the Guarantor, and the Trust
Preferred Guarantee Trustee does not assume any responsibility for their
correctness. The Trust Preferred Guarantee Trustee makes no representation as
to the validity or sufficiency of this Trust Preferred Securities Guarantee.
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ARTICLE IV
TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Trust Preferred Guarantee Trustee; Eligibility
(a) There shall at all times be a Trust Preferred
Guarantee Trustee which shall:
(i) Not be an Affiliate of the Guarantor; and
(ii) Be a corporation organized and doing business
under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a corporation or
Person permitted by the Securities and Exchange Commission to act as
an institutional trustee under the Trust Indenture Act, authorized
under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars ($50,000,000),
and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority referred
to above, then, for the purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Trust Preferred Guarantee Trustee
shall cease to be eligible to so act under Section 4.1(a), the Trust Preferred
Guarantee Trustee shall immediately resign in the manner and with the effect
set out in Section 4.2(c).
(c) If the Trust Preferred Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Trust Preferred Guarantee Trustee and Guarantor shall
in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act, subject to the penultimate paragraph thereof.
SECTION 4.2 Appointment, Removal and Resignation of Trust Preferred
Guarantee Trustee
(a) Subject to Section 4.2(b), the Trust Preferred
Guarantee Trustee may be appointed or removed without cause at any time by the
Guarantor except during a Guarantee Event of Default. Upon the occurrence and
during the continuance of a Guarantee Event of Default, only the Holders of a
Majority in Liquidation Amount of the Trust Preferred Securities may appoint or
remove the Trust Preferred Guarantee Trustee.
(b) The Trust Preferred Guarantee Trustee shall not be
removed in accordance with Section 4.2(a) until a Successor Trust Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Trust Preferred Guarantee Trustee
and delivered to the Guarantor.
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(c) The Trust Preferred Guarantee Trustee shall hold
office until a Successor Trust Preferred Guarantee Trustee shall have been
appointed or until its removal or resignation. The Trust Preferred Guarantee
Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Trust Preferred
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Trust Preferred Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed
by such Successor Trust Preferred Guarantee Trustee and delivered to the
Guarantor and the resigning Trust Preferred Guarantee Trustee.
(d) If no Successor Trust Preferred Guarantee Trustee
shall have been appointed and accepted appointment as provided in this Section
4.2 within 60 days after delivery of an instrument of removal or resignation,
the Trust Preferred Guarantee Trustee resigning or being removed may petition
any court of competent jurisdiction for appointment of a Successor Trust
Preferred Guarantee Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor Trust Preferred
Guarantee Trustee.
(e) No Trust Preferred Guarantee Trustee shall be liable
for the acts or omissions to act of any Successor Trust Preferred Guarantee
Trustee.
(f) Upon termination of this Trust Preferred Securities
Guarantee or removal or resignation of the Trust Preferred Guarantee Trustee
pursuant to this Section 4.2, the Guarantor shall pay to the Trust Preferred
Guarantee Trustee all amounts due to the Trust Preferred Guarantee Trustee
accrued to the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), if, as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer may have or assert.
The Guarantor's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders or by
causing the Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Trust
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding
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against the Guarantor, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the
Guarantor under this Trust Preferred Securities Guarantee shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) The release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the Trust Preferred
Securities to be performed or observed by the Issuer.
(b) The extension of time for the payment by the Issuer
of all or any portion of the Distributions, Redemption Price, Optional
Redemption Price, Liquidation Distribution or any other sums payable under the
terms of the Trust Preferred Securities or the extension of time for the
performance of any other obligation under, arising out of, or in connection
with, the Trust Preferred Securities.
(c) Any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the Trust
Preferred Securities, or any action on the part of the Issuer granting
indulgence or extension of any kind.
(d) The voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings affecting,
the Issuer or any of the assets of the Issuer;
(e) Any invalidity of, or defect or deficiency in, the
Trust Preferred Securities;
(f) The settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) Any other circumstances whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
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SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in Liquidation Amount of
the Trust Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trust
Preferred Guarantee Trustee in respect of this Trust Preferred Securities
Guarantee or exercising any trust or power conferred upon the Trust Preferred
Guarantee Trustee under this Trust Preferred Securities Guarantee, provided,
that, subject to Section 3.1, the Trust Preferred Guarantee Trustee shall have
the right to decline to follow any such direction if the Trust Preferred
Guarantee Trustee, being advised by counsel, determines that the action or
proceeding so directed may not lawfully be taken or if the Trust Preferred
Guarantee Trustee in good faith by its board or trustees, executive committee,
or a trust committee of directors or trustees, and/or Responsible Officers
shall determine that the action or proceeding so directed would involve the
Trust Preferred Guarantee Trustee in personal liability.
(b) If the Trust Preferred Guarantee Trustee fails to
enforce its rights under the Trust Preferred Securities Guarantee after a
Holder of Trust Preferred Securities has made a written request, such Holder of
Trust Preferred Securities may institute a legal proceeding directly against
the Guarantor to enforce the Trust Preferred Guarantee Trustee's rights under
this Trust Preferred Securities Guarantee, without first instituting a legal
proceeding against the Issuer, the Trust Preferred Guarantee Trustee or any
other person or entity. Notwithstanding the foregoing, if the Guarantor has
failed to make a Guarantee Payment, a Holder of Trust Preferred Securities may
directly institute a proceeding in such Holder's own name against the Guarantor
for enforcement of the Trust Preferred Securities Guarantee for such payment.
The Guarantor waives any right or remedy to require that any action be brought
first against the Issuer or any other person or entity before proceeding
directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
This Trust Preferred Securities Guarantee creates a guarantee
of payment and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of
the Holders of Trust Preferred Securities against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Trust Preferred
Securities Guarantee; provided, however, that the Guarantor shall not (except
to the extent required by mandatory provisions of law) be entitled to enforce
or exercise any right that it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Trust Preferred Securities Guarantee, if, at the time of any
such payment, any amounts are due and unpaid under this Trust Preferred
Securities Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount
in trust for the Holders and to pay over such amount to the Holders.
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SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Trust
Preferred Securities, and that the Guarantor shall be liable as principal and
as debtor hereunder to make Guarantee Payments pursuant to the terms of this
Trust Preferred Securities Guarantee notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions
So long as any Trust Preferred Securities remain outstanding,
if (a) for any distribution period, full distributions on a cumulative basis on
any Trust Preferred Securities have not been paid or declared and set apart for
payment, (b) an Event of Default (as defined in the Subordinated Indenture) has
occurred and is continuing or there shall have occurred and be continuing any
event of which the Guarantor has actual knowledge that, with the giving of
notice or lapse of time, or both, would constitute an Event of Default with
respect to the Subordinated Debentures, (c) the Guarantor is in default of its
obligations under this Trust Preferred Securities Guarantee or the Trust Common
Securities Guarantee, or (d) the Guarantor shall have given notice of its
selection of an Extension Period (as defined in the Subordinated Indenture) as
provided in the Subordinated Indenture with respect to the Subordinated
Debentures and shall not have rescinded such notice, or such Extension Period
(or any extension thereof) shall be continuing, then, during such period the
Guarantor shall not (i) declare or pay dividends on, make distributions with
respect to, or redeem, purchase or acquire, or make a liquidation payment with
respect to any of its capital stock (except for (x) dividends or distributions
in shares of, or options, warrants or rights to subscribe for or purchase
shares of, its capital stock and conversions or exchanges of common stock of
one class into common stock of another class and (y) redemptions or purchases
of any rights pursuant to the Rights Agreement and the issuance of capital
stock pursuant to such rights) or (ii) make any payments of principal, interest
or premium, if any, on or repay or repurchase or redeem any debt securities
(including guarantees of indebtedness for money borrowed) of the Guarantor that
rank pari passu with or junior to the Subordinated Debentures (other than (u)
any redemption, liquidation, interest, principal or guarantee payment by the
Guarantor where the payment is made by way of securities (including capital
stock) that rank pari passu with or junior to the securities on which such
redemption, liquidation, interest, principal or guarantee payment is being
made, (v) payments under this Trust Preferred Securities Guarantee or the Trust
Common Securities Guarantee, (w) purchases of Common Stock related to the
issuance of Common Stock under any of the Guarantor's benefit plans for its
directors, officers or employees, (x) as a result of a reclassification of the
Guarantor's capital stock or the exchange or conversion of one series or class
of the Guarantor's capital stock for another series or class of the Guarantor's
capital stock, (y) the purchase of fractional interests in shares of the
Guarantor's capital stock pursuant to the conversion
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or exchange provisions of such capital stock or the security being converted or
exchanged and (z) redemptions or purchases of any rights pursuant to the Rights
Agreement and the issuance of capital stock pursuant to such rights).
SECTION 6.2 Ranking
(a) This Trust Preferred Securities Guarantee will
constitute an unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all other liabilities of the
Guarantor (other than the obligations of the Guarantor under the Trust Common
Securities Guarantee, which are subordinate and junior to this Trust Preferred
Securities Guarantee to the extent provided therein), (ii) pari passu with the
most senior preferred or preference stock now or hereafter issued by the
Guarantor or any of its Affiliates and (iii) senior to the Guarantor's common
stock. Any similar guarantee given hereafter by the Guarantor with respect to
trust preferred securities that is silent as to seniority will rank pari passu
with this Trust Preferred Securities Guarantee.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Trust Preferred Securities Guarantee shall terminate upon
(i) full payment of the Redemption Price of all Trust Preferred Securities,
(ii) upon the distribution of the Subordinated Debentures to the Holders of all
of the Trust Preferred Securities, (iii) upon the conversion of all Trust
Preferred Securities pursuant to the Declaration or (iv) upon full payment of
the amounts payable in accordance with the Declaration upon liquidation of the
Issuer. Notwithstanding the foregoing, this Trust Preferred Securities
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder of Trust Preferred Securities must restore
payment of any sums paid under the Trust Preferred Securities or under this
Trust Preferred Securities Guarantee.
ARTICLE VIII
CERTAIN COVENANTS
SECTION 8.1 Payment of Additional Sums
Guarantor covenants and agrees that if and so long as (i) the
Issuer is the holder of all the Subordinated Debentures, (ii) a Trust Tax Event
(as defined in the Declaration) in respect of the Issuer has occurred and is
continuing and (iii) the Guarantor has elected, and has not revoked such
election, to pay Additional Sums (as defined in the Declaration) in respect of
the Trust
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Common Securities and Trust Preferred Securities, the Guarantor will pay to the
Issuer such Additional Sums.
SECTION 8.2 Continued Ownership of Trust Common Securities, Etc.
The Guarantor covenants and agrees (i) for so long as the Trust
Preferred Securities remain outstanding, (a) to maintain directly or indirectly
100% ownership of the Trust Common Securities, provided that certain successor
Persons in transactions which are permitted by Article VIII of the Subordinated
Indenture may succeed to the Guarantor's ownership of the Trust Common
Securities, (b) not to voluntarily terminate, wind-up or liquidate the Issuer,
except (I) in connection with a distribution of the Subordinated Debentures to
the holders of the Trust Securities in liquidation of the Issuer, (II) the
redemption of all Trust Securities or (III) in connection with certain mergers,
consolidations or amalgamations permitted by the Declaration, and (c) not to
convert Subordinated Debentures except pursuant to a notice of conversion
delivered to the Conversion Agent (as defined in the Declaration) by a Holder or
by a holder of Trust Common Securities, (ii) to use its reasonable commercial
efforts, consistent with the terms and provisions of the Declaration, to cause
the Issuer to remain classified as a grantor trust and not taxable as a
corporation for United States federal income tax purposes, (iii) to maintain the
reservation for issuance of the number of shares of Common Stock that would be
required from time to time upon the conversion of all the Subordinated
Debentures then outstanding, (iv) to deliver shares of Common Stock upon an
election by a Holder to convert such Trust Preferred Securities into or for
Common Stock, and (v) to honor all obligations relating to the conversion or
exchange of the Trust Preferred Securities into or for Common Stock or
Subordinated Debentures.
ARTICLE IX
INDEMNIFICATION, ETC.
SECTION 9.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith in accordance with this
Trust Preferred Securities Guarantee and in a manner that such Indemnified
Person reasonably believed to be within the scope of the authority conferred on
such Indemnified Person by this Trust Preferred Securities Guarantee or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Guarantor and upon such
information, opinions, reports or statements presented to the Guarantor by any
Person as to matters the Indemnified Person reasonably believes are within such
other Person's professional or expert competence and if selected by such
Indemnified Person,
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has been selected by such Indemnified Person with reasonable care by or on
behalf of the Guarantor, including information, opinions, reports or statements
as to the value and amount of the assets, liabilities, profits, losses, or any
other facts pertinent to the existence and amount of assets from which
Distributions to Holders of Trust Preferred Securities might properly be paid.
SECTION 9.2 Fees, Expenses and Indemnification
The Guarantor covenants and agrees to pay to the Trust
Preferred Guarantee Trustee from time to time, and the Trust Preferred
Guarantee Trustee shall be entitled to, 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), and the Guarantor will pay or reimburse the Trust Preferred Guarantee
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trust Preferred Guarantee Trustee in
accordance with any of the provisions of this Trust Preferred Securities
Guarantee (including the reasonable compensation and the expenses and
disbursements of its counsel and all Persons not regularly in its employ),
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Guarantor also agrees to indemnify each
Indemnified Person for, and to hold each Indemnified Person harmless against,
any and all loss, liability, damage, claim or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligations of the Guarantor under this Section 9.2 shall survive the
termination of this Trust Preferred Securities Guarantee or the earlier
resignation or removal of the Trust Preferred Guarantee Trustee.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns
All guarantees and agreements contained in this Trust
Preferred Securities Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the benefit of
the Holders of the Trust Preferred Securities then outstanding.
SECTION 10.2 Amendments
Except with respect to any changes that do not materially
adversely affect the rights of Holders (in which case no consent of Holders
will be required), this Trust Preferred Securities Guarantee may only be
amended with the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Trust Preferred Securities. The provisions of the
Declaration with respect
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to consents to amendments (whether at a meeting or otherwise) shall apply to
the giving of such approval.
SECTION 10.3 Holding Company Formation, Consolidations and Mergers
Notwithstanding anything to the contrary in this Agreement the
Company may form a holding company by merger with or into a single direct or
indirect wholly owned subsidiary of the Company, whether under Section 251(g) of
the General Corporation Law of Delaware or otherwise, and in connection
therewith the Company may sell, lease or transfer any of its properties and
assets to such holding company. Upon any consolidation of the Guarantor with, or
merger of the Guarantor into, any other Person or any sale, transfer or lease of
the properties and assets of the Guarantor as, or substantially as, an entirety
by the Guarantor or upon any holding company formation in accordance with the
preceding sentence, the successor Person formed by such consolidation or into
which the Guarantor is merged or to which such sale, transfer or lease is made
or which constitutes the holding company formed as contemplated in the preceding
sentence, shall execute and deliver to the Trust Preferred Guarantee Trustee an
instrument of assumption in form satisfactory to the Trust Preferred Guarantee
Trustee whereby such successor expressly assumes the due and punctual
performance and observance of all of the covenants and conditions of this Trust
Preferred Securities Guarantee to be performed by the Guarantor and such
successor Person shall thereupon succeed to, and be substituted for, and may
exercise every right and power of, the Guarantor under this Trust Preferred
Securities Guarantee with the same effect as if such successor Person had been
named originally as the Guarantor herein, and thereafter, except in the case of
a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Trust Preferred Securities Guarantee. 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 in writing to be co-obligors jointly and
severally with respect to all such obligations and covenants. Concurrently
with the delivery to the Trust Preferred Guarantee Trustee of such instrument
of assumption, the Guarantor shall deliver to the Trust Preferred Guarantee
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, transfer, sale or lease or the formation of such
holding company and the transactions effected in connection therewith and the
related instrument of assumption comply with this Article and that all
conditions precedent herein provided relating to such transaction and
assumption have been complied with.
SECTION 10.4 Notices
All notices provided for in this Trust Preferred Securities
Guarantee shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Trust Preferred Guarantee Trustee, at
the Trust Preferred Guarantee Trustee's Corporate Trust Office, Attention:
Corporate Trustee, Administration Department.
(b) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may give notice
of to the Holders of the Trust Preferred Securities and the Trust Preferred
Guarantee Trustee):
El Paso Natural Gas Company
1001 Louisiana
30th Floor
Houston, Texas 77002
Attention: Vice President and Treasurer
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(c) If given to any Holder of Trust Preferred Securities,
at the address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 10.5 Benefit
This Trust Preferred Securities Guarantee is solely for the
benefit of the Holders of the Trust Preferred Securities and, subject to
Section 3.1(a), is not separately transferable from the Trust Preferred
Securities.
SECTION 10.6 Governing Law
THIS TRUST PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
THIS TRUST PREFERRED SECURITIES GUARANTEE is executed as of
the day and year first above written.
EL PASO NATURAL GAS COMPANY,
as Guarantor
By:
-----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trust Preferred Guarantee Trustee
By:
-----------------------------------
Name:
Title:
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