<PAGE>
As filed with the Securities and Exchange Commission on January 15, 1999
Registration Nos. 333-
333- -01
333- -02
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HOUSTON INDUSTRIES INCORPORATED
HI Trust I
HI Trust II
(Exact name of each registrant as specified in its charter or trust agreement)
Texas 74-0694415
Delaware 76-6145023
Delaware 76-6145024
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Nos.)
1111 Louisiana Hugh Rice Kelly
Houston, Texas 77002 Executive Vice President, General
(713) 207-3000 Counsel and
(Address, including zip code, and Corporate Secretary
telephone 1111 Louisiana
number, including area code, of Houston, Texas 77002
each registrant's (713) 207-3000
principal executive offices) (Name, address, including zip code,
and telephone number, including area
code, of agent for service for each
registrant)
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Copies to:
Margo S. Scholin Steven R. Loeshelle
Baker & Botts, L.L.P. Dewey Ballantine LLP
910 Louisiana 1301 Avenue of the Americas
One Shell Plaza New York, New York 10019-6092
Houston, Texas 77002-4995 (212) 259-8000
(713) 229-1234
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Approximate date of commencement of proposed sale to public: From time to
time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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<PAGE>
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Each Class of Offering Price Aggregate Amount of
Securities to be Amount to be Per Unit (1), Offering Price Registration
Registered Registered (1) (2), (3) (1), (2), (3) Fee
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<S> <C> <C> <C> <C>
Junior Subordinated Debt
Securities of Houston
Industries Incorporated
("Debt Securities")....
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Trust Preferred
Securities of HI Trust
I and HI Trust II
("Preferred
Securities")...........
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Guarantee of Preferred
Securities of HI Trust
I and HI Trust II by
Houston Industries
Incorporated
("Guarantee")..........
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TOTAL................... $500,000,000 100% $500,000,000 $139,000
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</TABLE>
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) and exclusive of accrued interest and
distributions, if any. In no event will the aggregate initial offering
price of all securities issued from time to time pursuant to this
Registration Statement exceed $500,000,000 or the equivalent thereof in
foreign currencies, foreign currency units or composite currencies. Any
securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
(2) There are being registered hereunder such indeterminate number or amount of
Debt Securities of Houston Industries Incorporated and Preferred Securities
of HI Trust I and HI Trust II, as may from time to time be issued at
indeterminate prices. Debt Securities may be issued and sold to HI Trust I
and HI Trust II, in which event such Debt Securities may later be
distributed to the holders of Preferred Securities upon a dissolution of HI
Trust I and HI Trust II and the distribution of assets thereof.
(3) Houston Industries Incorporated is also registering under this Registration
Statement all other obligations that it may have with respect to Preferred
Securities issued by HI Trust I and HI Trust II. No separate consideration
will be received for the Guarantee or any other such obligations.
----------------
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
Subject to Completion, dated January 15, 1999
Prospectus
$500,000,000
Houston Industries Incorporated
Junior Subordinated Debt Securities
HI Trust I
HI Trust II
Trust Preferred Securities fully and unconditionally guaranteed, as set forth
herein, by
Houston Industries Incorporated
Houston Industries Incorporated The Trusts
1111 Louisiana
Houston, Texas 77002 HI Trust I and HI Trust II are subsidiaries of
(713) 207-3000 Houston Industries Incorporated. The Trusts are
statutory business trusts created under Delaware law.
They exist for the purpose of issuing trust preferred
securities.
The information in
this prospectus is
not complete and may The Offering
be changed. We may
not sell these Junior Subordinated Debt Securities
securities until the
registration By this prospectus, the Company may offer junior
statement filed with subordinated debt securities. The Company's
the Securities and obligations under these debt securities will be
Exchange Commission unsecured and subordinate and junior in right of
is effective. This payment to all other Senior Debt (as defined herein)
prospectus is not an of the Company. The Company may issue and sell these
offer to sell these junior subordinated debt securities to the Trusts in
securities and it is connection with the Trusts' investment of proceeds
not soliciting an from the sale of their trust preferred securities and
offer to buy these common securities. Under certain circumstances the
securities in any Trusts may be dissolved and these junior subordinated
state where the debt securities will be distributed to holders of the
offer or sale is not Trusts' trust preferred securities.
permitted.
Trust Preferred Securities
We will provide
additional terms of By this prospectus, the Trusts may offer and sell
our securities in trust preferred securities representing undivided
one or more beneficial interests in the assets of the issuing
supplements to this Trust. The Trusts will use the proceeds from the sale
prospectus. You of their trust preferred securities and common
should read this securities to purchase junior subordinated debt
prospectus and the securities of the Company.
related prospectus
supplement carefully Guarantee
before you invest in
our securities. This The Company will fully and unconditionally
prospectus may not guarantee the Trusts' payment obligations with
be used to offer and respect to their trust preferred securities on the
sell our securities terms described in this prospectus and the
unless accompanied accompanying prospectus supplement.
by a prospectus
supplement.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
The date of this prospectus is , 1999
<PAGE>
TABLE OF CONTENTS
Prospectus
<TABLE>
<S> <C>
About this Prospectus.................................................... 2
Where You Can Find More Information...................................... 3
Disclosure Regarding Forward-looking Statements.......................... 4
The Company.............................................................. 4
Ratio of Earnings to Fixed Charges....................................... 5
Use of Proceeds.......................................................... 5
The Trusts............................................................... 5
Description of the Preferred Securities.................................. 10
Description of the Preferred Securities Guarantees....................... 11
Description of the Junior Subordinated Debt Securities................... 14
Plan of Distribution..................................................... 21
Legal Matters............................................................ 22
Experts.................................................................. 22
</TABLE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed with
the Securities and Exchange Commission (the "Commission") using a "shelf"
registration process. By using this process, we may offer the securities
described in this prospectus in one or more public offerings with a total
aggregate initial offering price of up to $500,000,000. This prospectus
provides you with a general description of the securities we may offer. Each
time we offer securities, we will provide a prospectus supplement. The
prospectus supplement will describe the specific terms of the offering. The
prospectus supplement may also add, update or change the information contained
in this prospectus. Please carefully read this prospectus and the applicable
prospectus supplement, in addition to the information contained in the
documents we refer to under the heading "Where You Can Find More Information."
You should rely only on the information contained or incorporated by
reference in this prospectus and any accompanying prospectus supplement. We
have not authorized anyone else to provide you with any different information.
If anyone provides you with different or inconsistent information, you should
not rely on it. We are not making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted. The information
contained in this prospectus is current only as of the date of this prospectus.
We have not included separate financial statements of the Trusts in this
prospectus. We do not consider that such financial statements would be material
to holders of the Trusts' trust preferred securities because:
. Each Trust is a newly created special purpose entity;
. Each Trust has no operating history or independent operations; and
. Neither Trust is engaged in nor does it propose to engage in any activity
other than holding the Junior Subordinated Debt Securities (as defined
herein), issuing the Trust Securities (as defined herein) and any other
activity related thereto or specifically authorized by the Trust's
Declaration (as defined herein).
Furthermore, taken together, the Company's obligations under the Junior
Subordinated Debt Securities, the Indenture, the Declarations and the Preferred
Securities Guarantees (each, as defined herein) provide, in the aggregate, a
full, irrevocable and unconditional guarantee of payments of distributions and
other amounts due on the Trusts' preferred securities. See "The Trusts,"
"Description of the Preferred Securities," "Description of the Preferred
Securities Guarantees" and "Description of the Junior Subordinated Debt
Securities." In addition, we do not expect that the Trusts will file reports
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
with the Commission.
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<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file reports and other information with the Commission. You may read and
copy any document we file with the Commission at the Commission's Public
Reference Room located at 450 Fifth Street, N.W., Washington, D.C. 20549, at
the regional offices of the Commission located at the Northwestern Atrium
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511, and
at 7 World Trade Center, Suite 1300, New York, New York 10048. You may obtain
further information regarding the operation of the Commission's Public
Reference Room by calling the Commission at 1-800-SEC-0330. Our filings are
also available to the public on the Commission's Internet site located at
http://www.sec.gov. In addition, you may inspect our reports at the offices of
the New York Stock Exchange, Inc. at 20 Broad Street, New York, New York 10005.
The Commission allows us to "incorporate by reference" into this prospectus
the information we file with the Commission, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this
prospectus, unless we update or supersede that information by the information
contained in this prospectus or a prospectus supplement or by information that
we file subsequently that is incorporated by reference into this prospectus. We
are incorporating by reference into this prospectus the following documents
that the Company has filed with the Commission and the Company's future filings
with the Commission under Sections 13(a), 13(c), 14, or 15(d) of the Exchange
Act, until the offering of the securities offered hereby is completed:
. The Company's Annual Report on Form 10-K for its fiscal year ended
December 31, 1997;
. The Company's Quarterly Reports on Form 10-Q for its quarterly periods
ended March 31, 1998, June 30, 1998 and September 30, 1998; and
. The Company's Current Report on Form 8-K filed with the Commission on
October 21, 1998.
This prospectus is part of a registration statement we have filed with the
Commission relating to our securities. As permitted by Commission rules, this
prospectus does not contain all of the information included in the registration
statement and the accompanying exhibits and schedules we file with the
Commission. You should read the registration statement, the exhibits and
schedules for more information about us and our securities. The registration
statement, exhibits and schedules are also available at the Commission's Public
Reference Room or through its web site.
You may also obtain a copy of our filings with the Commission at no cost, by
writing to or telephoning us at the following address:
Houston Industries Incorporated
1111 Louisiana
Houston, Texas 77002
Attn: Corporate Secretary
(713) 207-3000
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<PAGE>
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
Statements contained in this prospectus and any accompanying prospectus
supplement, including the documents that are incorporated by reference as set
forth in "Where You Can Find More Information," that are not historical facts
are forward-looking statements as defined in the Private Securities Litigation
Reform Act of 1995. Forward-looking statements are based on the beliefs of the
Company's management as well as assumptions made by and information currently
available to management. The Company and the Trusts caution that assumptions,
projections, expectations, intentions or beliefs about future events may and
often do vary materially from actual results and the differences between
assumptions, projections, expectations, intentions or beliefs and actual
results can be material. Accordingly, there can be no assurance actual results
will not differ materially from those expressed or implied by forward-looking
statements.
The following are some of the factors that could cause actual results to
differ from those expressed or implied in the forward-looking statements
contained herein:
. state and federal legislative and regulatory initiatives that affect cost
and investment recovery, have an impact on rate restructuring and affect
the speed and degree to which competition enters the electric and natural
gas industries;
. industrial, commercial and residential growth in our service territories;
. the weather and other natural phenomena;
. the timing and extent of changes in commodity prices and interest rates;
. changes in environmental and other laws and regulations to which the
Company and its subsidiaries are subject or other external factors over
which the Company has no control;
. the results of financing efforts;
. growth in opportunities for the Company's subsidiaries and diversified
operations;
. risks incidental to the Company's overseas operations (including the
effects of fluctuations in foreign currency exchange rates);
. the effect of the Company's accounting policies; and
. other factors discussed in this and other filings by the Company with the
Commission.
When used in the Company's documents, the words "anticipate," "estimate,"
"expect," "forecast," "goal," "objective," "projection" or similar words are
intended to identify forward-looking statements.
THE COMPANY
Houston Industries Incorporated (the "Company") is a diversified
international energy services company. Houston Lighting & Power Company, the
Company's electric utility division, serves approximately 1.6 million customers
in the City of Houston, Texas, and surrounding areas of the Texas Gulf Coast.
NorAm Energy Corp. ("NorAm"), the Company's largest subsidiary, is a natural
gas utility serving over 2.8 million customers in Arkansas, Louisiana,
Minnesota, Mississippi, Oklahoma and Texas. NorAm, through its subsidiaries, is
also a major interstate natural gas pipeline company and a provider of energy
marketing services.
The Company's other principal subsidiaries include (i) Houston Industries
Energy, Inc., which participates in the privatization of foreign generating and
distribution facilities and the development and acquisition of foreign
independent power projects and (ii) Houston Industries Power Generation, Inc.,
which participates in the acquisition, development and operation of domestic
non-rate regulated power generation facilities.
The Company, subject to certain limited exceptions, is exempt from
regulation as a public utility holding company pursuant to Section 3(a)(2) of
the Public Utility Holding Company Act of 1935, as amended.
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The Company's executive offices are located at Houston Industries Plaza,
1111 Louisiana, Houston, Texas 77002 (telephone number: (713) 207-3000).
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the periods indicated:
<TABLE>
<CAPTION>
Nine Months
Ended
September 30, Year Ended December 31,
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1998 1997 1997 1996 1995 1994 1993
------ ------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings from continuing
operations to fixed charges before
cumulative effect of change in
accounting (1)(2)..................... 1.97 3.05 2.41 2.76 2.71 2.89 2.78
</TABLE>
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(1) The Company believes that the ratios for the nine-month periods are not
necessarily indicative of the ratios for the twelve-month periods due to
the seasonal nature of the Company's business and adjustments to the
Company's financial statements resulting from its acquisition of NorAm on
August 6, 1997.
(2) Includes the results of NorAm from the date of its acquisition which was
accounted for under the purchase method.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, the
Company anticipates that any net proceeds from the sale of the securities
offered hereby will be used for general corporate purposes, which may include,
but are not limited to, working capital, capital expenditures, acquisitions and
the repayment or refinancing of the Company's indebtedness, including inter-
company indebtedness.
Each Trust will use all proceeds received from the sale of its Trust
Securities to purchase Junior Subordinated Debt Securities from the Company.
THE TRUSTS
HI Trust I and HI Trust II (each a "Trust", and collectively the "Trusts")
are statutory business trusts created on January 11, 1999, under the Delaware
Business Trust Act (the "Business Trust Act") pursuant to separate declarations
of trust among the Trustees (as defined herein) of each Trust and the Company
and the filing of a certificate of trust with the Secretary of State of the
State of Delaware. Each such declaration will be amended and restated in its
entirety (as so amended and restated, the "Declaration" and together, the
"Declarations") as of the date the respective Trust initially issues trust
preferred securities representing preferred undivided beneficial interests in
the assets of such Trust (the "Preferred Securities"). Each Declaration will be
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
The following description summarizes the material terms of the Declarations
and is qualified in its entirety by reference to the form of Declaration, which
has been filed as an exhibit to the registration statement of which this
prospectus is a part, and the Trust Indenture Act.
The address of the principal office of each Trust is c/o Houston Industries
Incorporated, 1111 Louisiana, Houston, Texas 77002, and the telephone number of
each Trust at such address is (713) 207-3000.
Preferred Securities
Upon issuance of any Preferred Securities by a Trust, the holders thereof
will own all of the issued and outstanding Preferred Securities of such Trust.
The Company will, directly or indirectly, acquire common securities
representing common undivided beneficial interests in the assets of each Trust
(the "Common
5
<PAGE>
Securities" and, together with the Preferred Securities, the "Trust
Securities") in an amount equal to 3% of the total capital of such Trust and
will own, directly or indirectly, all of the issued and outstanding Common
Securities of each Trust. The Preferred Securities and the Common Securities
will rank pari passu with each other and will have equivalent terms; provided
that (i) if a Declaration Event of Default (as defined under "--Events of
Default") under the Declaration of a Trust occurs and is continuing, the
holders of Preferred Securities of such Trust will have a priority over holders
of the Common Securities of such Trust with respect to payments in respect of
distributions and payments upon liquidation, redemption and maturity and (ii)
the holders of Common Securities have the exclusive right to appoint, remove or
replace the Trustees and to increase or decrease the number of Trustees. Each
Trust exists for the purposes of (a) issuing its Preferred Securities, (b)
issuing its Common Securities to the Company, (c) investing the gross proceeds
from the sale of its Trust Securities in Junior Subordinated Debt Securities of
the Company and (d) engaging in only such other activities as are necessary,
convenient or incidental thereto or are specifically authorized in its
Declaration. The rights of the holders of the Preferred Securities of a Trust,
including economic rights, rights to information and voting rights, are set
forth in the applicable Declaration, the Business Trust Act and the Trust
Indenture Act.
Powers and Duties of Trustees
The number of trustees (the "Trustees") of each Trust will initially be
five. Three of the Trustees (the "Regular Trustees") are individuals who are
officers, directors or employees of the Company. The fourth Trustee is The Bank
of New York, which is unaffiliated with the Company and serves as the property
trustee (the "Property Trustee") and acts as the indenture trustee under the
Declaration for purposes of the Trust Indenture Act. The fifth Trustee is The
Bank of New York (Delaware) which has its principal place of business in the
State of Delaware (the "Delaware Trustee"). Pursuant to each Declaration, legal
title to the Junior Subordinated Debt Securities purchased by a Trust will 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 of such Trust, and the
Property Trustee will have the legal power to exercise all rights, powers and
privileges under the Indenture (as defined under "Description of the Junior
Subordinated Debt Securities") with respect to such Junior Subordinated Debt
Securities. In addition, the Property Trustee will maintain exclusive control
of a segregated non-interest bearing bank account (the "Property Account") to
hold all payments in respect of the Junior Subordinated Debt Securities
purchased by a Trust for the benefit of the holders of its Trust Securities.
The Property Trustee will promptly make distributions to the holders of the
Trust Securities out of funds from the Property Account. The Preferred
Securities Guarantees are separately qualified under the Trust Indenture Act
and will be held by The Bank of New York (the "Guarantee Trustee"), acting in
its capacity as indenture trustee with respect thereto, for the benefit of the
holders of the applicable Preferred Securities. As used in this prospectus and
any accompanying prospectus supplement, the term "Property Trustee" with
respect to a Trust refers to The Bank of New York acting either in its capacity
as a Trustee under the related Declaration and the holder of legal title to the
Junior Subordinated Debt Securities purchased by such Trust or in its capacity
as the Guarantee Trustee under the applicable Preferred Securities Guarantee,
as the context may require. The Company, as the direct or indirect owner of all
of the Common Securities of each Trust, will have the exclusive right to
appoint, remove or replace Trustees and to increase or decrease the number of
Trustees, provided that the number of Trustees will be, except under certain
circumstances, at least five and the majority of Trustees will be Regular
Trustees. The term of a Trust will be set forth in the applicable prospectus
supplement but may dissolve earlier as provided in the applicable Declaration.
The duties and obligations of the Trustees of a Trust will be governed by
the Declaration of such Trust, the Business Trust Act and the Trust Indenture
Act. Under its Declaration, each Trust will not, and the Trustees will cause
such Trust not to, engage in any activity other than in connection with the
purposes of such Trust or other than as required or authorized by the related
Declaration. In particular, each Trust will not and the Trustees will cause
each Trust not to (a) invest any proceeds received by such Trust from holding
the Junior Subordinated Debt Securities purchased by such Trust but shall
promptly distribute from the Property Account all such proceeds to holders of
its Trust Securities pursuant to the terms of the related Declaration and of
its
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<PAGE>
Trust Securities; (b) acquire any assets other than as expressly provided in
the related Declaration; (c) possess property of such Trust for other than a
Trust purpose; (d) make any loans, other than loans represented by the Junior
Subordinated Debt Securities; (e) possess any power or otherwise act in such a
way as to vary the assets of such Trust or the terms of its Trust Securities in
any way whatsoever, except as expressly provided in the related Declaration;
(f) issue any securities or other evidences of beneficial ownership of, or
beneficial interests in, such Trust other than its Trust Securities; (g) incur
any indebtedness for borrowed money; (h) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee (as
defined under "Description of the Junior Subordinated Debt Securities") or
exercising any trust or power conferred upon the Indenture Trustee with respect
to the Junior Subordinated Debt Securities deposited in such Trust as trust
assets; (i) waive any past default that is waivable under the Indenture; (j)
exercise any right to rescind or annul a declaration of acceleration of the
maturity of the principal of all of the Junior Subordinated Debt Securities
deposited in such Trust as trust assets, without, in the case of clauses (h),
(i) and (j), obtaining the prior approval of the holders of a majority in
liquidation amount of all outstanding Trust Securities of such Trust; (k)
consent to any amendment, modification or termination of the Indenture or the
Junior Subordinated Debt Securities deposited in such Trust as trust assets,
where such consent is required, unless in the case of this clause (k) the
Property Trustee shall have received an opinion of counsel experienced in such
matters to the effect that such amendment, modification or termination will not
cause more than an insubstantial risk that for United States federal income tax
purposes such Trust will not be classified as a grantor trust; (l) take or
consent to any action that would result in the placement of a lien, pledge,
charge, mortgage or other encumbrance on any of the property of such Trust; (m)
vary the investment (within the meaning of Treasury Regulation Section
301.7701-4(c)) of such Trust or of the holders of its Trust Securities; (n)
after the issuance of its Preferred Securities, enter into any contract or
agreement (other than any depositary agreement or any agreement with any
securities exchange or automated quotation system) that does not expressly
provide that the holders of such Preferred Securities, in their capacities as
such, have limited liability (in accordance with the provisions of the Business
Trust Act) for the liabilities and obligations of such Trust or (o) revoke any
action previously authorized or approved by a vote of the holders of its
Preferred Securities except by subsequent vote of such holders.
Books and Records
The books and records of each Trust will be maintained at the principal
office of such Trust and will be open for inspection by a holder of Preferred
Securities of such Trust or his authorized representative for any purpose
reasonably related to his interest in such Trust during normal business hours.
Voting
Holders of Preferred Securities generally will have limited voting rights,
relating only to the modification of the Preferred Securities and, under
certain circumstances, to the exercise of a Trust's rights as holder of the
Junior Subordinated Debt Securities and the Preferred Securities Guarantee. The
holders of the Preferred Securities will not be able to appoint, remove or
replace, or to increase or decrease the number of, Trustees, which rights are
vested exclusively in the holders of the Common Securities.
The Property Trustee
The Property Trustee, for the benefit of the holders of the Trust Securities
of a Trust, is authorized under each Declaration to exercise all rights under
the Indenture with respect to the Junior Subordinated Debt Securities deposited
in such Trust as trust assets, including its rights as the holder of such
Junior Subordinated Debt Securities to enforce the Company's obligations under
such Junior Subordinated Debt Securities upon the occurrence of an Indenture
Event of Default (as defined herein under "Description of the Junior
Subordinated Debt Securities--Indenture Events of Default"). The Property
Trustee will also be authorized to enforce the rights of holders of the
Preferred Securities of a Trust under the related Preferred Securities
Guarantee. If any Trust's failure to make distributions on the Preferred
Securities of such Trust is a consequence of the Company's exercise of any
right under the terms of the Junior Subordinated Debt Securities deposited in
such
7
<PAGE>
Trust as trust assets to extend the interest payment period for such Junior
Subordinated Debt Securities, the Property Trustee will have no right to
enforce the payment of distributions on such Preferred Securities until a
Declaration Event of Default shall have occurred. If a Declaration Event of
Default has occurred and is continuing, then the holders of at least a majority
in liquidation amount of the Preferred Securities of a Trust will have the
right to direct the Property Trustee for such Trust with respect to certain
matters under the related Declaration and the related Preferred Securities
Guarantee. If the Property Trustee fails to enforce its rights under the
applicable series of Junior Subordinated Debt Securities, any holder of
Preferred Securities, to the extent permitted by applicable law, may, after a
period of 30 days has elapsed from such Holder's written request to the
Property Trustee to enforce such rights, institute a legal proceeding directly
against the Company to enforce such rights without first instituting any legal
proceeding against the Property Trustee or any other person. Notwithstanding
the foregoing, if a Declaration Event of Default under the applicable
Declaration has occurred and is continuing and such event is attributable to
the failure of the Company to pay interest or principal, or premium, if any, on
the applicable series of Junior Subordinated Debt Securities on the date such
interest, principal or premium is otherwise payable (or in the case of
redemption, on the redemption date), then a holder of Preferred Securities of
such Trust may directly institute a proceeding for enforcement of payment to
such holder of the principal of, or premium, if any, or interest on the
applicable series of Junior Subordinated Debt Securities having a principal
amount equal to the aggregate liquidation amount of the Preferred Securities of
such holder (a "Holder Direct Action") on or after the respective due date
specified in the applicable series of Junior Subordinated Debt Securities. In
connection with such Holder Direct Action, the Company will be subrogated to
the rights of such holder of Preferred Securities under the applicable
Declaration to the extent of any payment made by the Company to such holder of
Preferred Securities in such Holder Direct Action. Except as expressly provided
in the preceding sentences or in the applicable prospectus supplement, the
holders of Preferred Securities of such Trust will not be able to exercise
directly any other remedy available to the holders of the applicable series of
Junior Subordinated Debt Securities.
Distributions
Pursuant to each Declaration, distributions on the Preferred Securities of a
Trust must be paid on the dates payable to the extent that the Property Trustee
for such Trust has cash on hand in the applicable Property Account to permit
such payment. The funds available for distribution to the holders of the
Preferred Securities of a Trust will be limited to payments received by the
Property Trustee in respect of the Junior Subordinated Debt Securities that are
deposited in such Trust as trust assets. If the Company does not make interest
payments on the Junior Subordinated Debt Securities deposited in a Trust as
trust assets, the Property Trustee will not make distributions on the Preferred
Securities of such Trust. Under each Declaration, if and to the extent the
Company does make interest payments on the Junior Subordinated Debt Securities
deposited in a Trust as trust assets, the Property Trustee is obligated to make
distributions on the Trust Securities of such Trust on a Pro Rata Basis (as
defined below). The payment of distributions on the Preferred Securities of a
Trust is guaranteed by the Company as and to the extent set forth under
"Description of the Preferred Securities Guarantees." A Preferred Securities
Guarantee is a guarantee from the time of issuance of the Preferred Securities,
but the Preferred Securities Guarantee covers distributions and other payments
on the applicable Preferred Securities only if and to the extent that the
Company has made a payment to the Property Trustee of interest or principal, or
premium, if any, on the Junior Subordinated Debt Securities deposited in a
Trust as trust assets. As used in this prospectus, the term "Pro Rata Basis"
shall mean pro rata to each holder of Trust Securities of a Trust according to
the aggregate liquidation amount of the Trust Securities of such Trust held by
the relevant holder in relation to the aggregate liquidation amount of all
Trust Securities of such Trust outstanding unless, in relation to a payment, a
Declaration Event of Default under the related Declaration has occurred and is
continuing, in which case any funds available to make such payment shall be
paid first to each holder of the Preferred Securities of such Trust pro rata
according to the aggregate liquidation amount of the Preferred Securities held
by the relevant holder in relation to the aggregate liquidation amount of all
the Preferred Securities of such Trust outstanding, and only after satisfaction
of all amounts owed to the holders of such Preferred Securities, to each holder
of Common Securities of such Trust pro rata according to the aggregate
liquidation amount of such Common Securities held by the relevant holder in
relation to the aggregate liquidation amount of all Common Securities of such
Trust outstanding.
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Events of Default
If an Indenture Event of Default occurs and is continuing with respect to
the Junior Subordinated Debt Securities deposited in a Trust as trust assets,
an Event of Default under the Declaration (a "Declaration Event of Default") of
such Trust will occur and be continuing, with respect to any outstanding Trust
Securities of such Trust. In such event, each Declaration provides that the
holders of Common Securities of such Trust will be deemed to have waived any
such Declaration Event of Default with respect to the Common Securities until
all Declaration Events of Default with respect to the Preferred Securities of
such Trust have been cured or waived or otherwise eliminated. Until all such
Declaration Events of Default with respect to the Preferred Securities of such
Trust 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 Preferred
Securities of such Trust and only the holders of such Preferred Securities will
have the right to direct the Property Trustee with respect to certain matters
under such Declaration and consequently under the Indenture. In the event that
any Declaration Event of Default with respect to the Preferred Securities of
such Trust is waived by the holders of the Preferred Securities of such Trust
as provided in the Declaration, the holders of Common Securities of such Trust
pursuant to such Declaration have agreed that such waiver also constitutes a
waiver of such Declaration Event of Default with respect to such Common
Securities for all purposes under the Declaration without any further act, vote
or consent of the holders of such Common Securities. The Property Trustee shall
notify each holder of Preferred Securities of a Trust of any notice of default
with respect to the related Junior Subordinated Debt Securities, unless such
default has been cured before the giving of such notice or the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers (as that term is defined in the applicable Declaration) 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 of such
Trust.
Record Holders
Each Declaration provides that the Trustees of such Trust may treat the
person in whose name a certificate representing its Preferred Securities is
registered on the books and records of such Trust as the sole holder thereof
and of the Preferred Securities represented thereby for purposes of receiving
distributions and for all other purposes and, accordingly, will not be bound to
recognize any equitable or other claim to or interest in such certificate or in
the Preferred Securities represented thereby on the part of any person, whether
or not the Trustees of such Trust shall have actual or other notice thereof.
Preferred Securities will be issued in fully registered form. Unless otherwise
specified in a prospectus supplement, Preferred Securities will be represented
by one or more global certificates registered on the books and records of such
Trust in the name of a depositary (the "Depositary") named in an accompanying
prospectus supplement or its nominee. Under each Declaration:
(i) such Trust and the Trustees thereof will be entitled to deal with
the Depositary (or any successor depositary) for all purposes, including
the payment of distributions and receiving approvals, votes or consents
under the related Declaration, and except as set forth in the related
Declaration with respect to the issuance of definitive certificates
representing the Preferred Securities, will have no obligation to persons
owning a beneficial interest in Preferred Securities ("Preferred Security
Beneficial Owners") registered in the name of and held by the Depositary or
its nominee; and
(ii) the rights of Preferred Security Beneficial Owners will be
exercised only through the Depositary (or any successor depositary) and
will be limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Depositary and/or its
participants. With respect to Preferred Securities registered in the name
of and held by the Depositary or its nominee, all notices and other
communications required under each Declaration will be given to, and all
distributions on such Preferred Securities will be given or made to, the
Depositary (or its successor).
The specific terms of the depositary arrangement with respect to the
Preferred Securities of a Trust will be disclosed in the applicable prospectus
supplement.
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Debts and Obligations
In each Declaration, the Company has agreed to pay all debts and obligations
(other than with respect to the related Trust Securities) and all costs and
expenses of the applicable Trust, including the fees and expenses of its
Trustees and any taxes and all costs and expenses with respect thereto, to
which such Trust may become subject, except for United States withholding
taxes. The foregoing obligations of the Company under each Declaration are for
the benefit of, and will be enforceable by, any person to whom any such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice thereof. Any such Creditor may enforce such
obligations of the Company directly against the Company, and the Company has
irrevocably waived any right or remedy to require that any such Creditor take
any action against any Trust or any other person before proceeding against the
Company. The Company will be subrogated to all rights of a Trust in respect of
any amounts paid to any Creditor by the Company. The Company has agreed in each
Declaration to execute such additional agreements as may be necessary or
desirable in order to give full effect to the foregoing.
DESCRIPTION OF THE PREFERRED SECURITIES
Each Trust may issue, from time to time, only one series of Preferred
Securities having terms described in the prospectus supplement relating
thereto. The Declaration of each Trust authorizes the Regular Trustees of such
Trust to issue on behalf of such Trust one series of Preferred Securities. Each
Declaration will be qualified as an indenture under the Trust Indenture Act.
The Preferred Securities will have such terms, including distributions,
redemption, voting, liquidation rights and such other preferred, deferred or
other special rights or such restrictions as set forth in the related
Declaration or made part of such Declaration by the Trust Indenture Act.
Reference is made to the prospectus supplement relating to the Preferred
Securities of a Trust for specific terms, including (i) the specific
designation of such Preferred Securities, (ii) the number of Preferred
Securities issued by such Trust, (iii) the annual distribution rate (or method
of calculation thereof) for Preferred Securities issued by such Trust, the date
or dates upon which such distributions will be payable and the record date or
dates for the payment of such distributions, (iv) whether distributions on the
Preferred Securities issued by such Trust will be cumulative, and, in the case
of Preferred Securities having such cumulative distribution rights, the date or
dates or method of determining the date or dates from which distributions on
Preferred Securities issued by such Trust will be cumulative, (v) the amount or
amounts which will be paid out of the assets of such Trust to the holders of
Preferred Securities of such Trust upon voluntary or involuntary dissolution,
winding-up or termination of such Trust, (vi) the obligation or right, if any,
of such Trust to purchase or redeem Preferred Securities issued by such Trust
and the price or prices at which, the period or periods within which and the
terms and conditions upon which Preferred Securities issued by such Trust will
or may be purchased or redeemed, in whole or in part, pursuant to such
obligation or right, (vii) the voting rights, if any, of Preferred Securities
issued by such Trust in addition to those required by law, including the number
of votes per Preferred Security and any requirement for the approval by the
holders of Preferred Securities, as a condition to specified actions or
amendments to the Declaration of such Trust, (viii) terms for any conversion or
exchange into other securities (ix) the rights, if any, to defer distributions
on the Preferred Securities by extending the interest payment period on the
Junior Subordinated Debt Securities and (x) any other relevant, terms, rights,
preferences, privileges, limitations or restrictions of Preferred Securities
issued by such Trust consistent with the Declaration of such Trust or with
applicable law. All Preferred Securities offered hereby will be guaranteed by
the Company as and to the extent set forth below under "Description of the
Preferred Securities Guarantees." Certain United States federal income tax
considerations applicable to any offering of Preferred Securities will be
described in the prospectus supplement relating thereto.
In connection with the issuance of the Preferred Securities, each Trust will
issue one series of Common Securities. The Declaration of each Trust authorizes
the Regular Trustees of such Trust to issue on behalf of such Trust one series
of Common Securities having such terms including distributions, redemption,
voting, liquidation rights or such restrictions as set forth therein. The terms
of the Common Securities issued by a Trust
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will be substantially identical to the terms of the Preferred Securities issued
by such Trust and the Common Securities will rank pari passu, and payments will
be made thereon on a Pro Rata Basis with the Preferred Securities except that
if a Declaration Event of Default occurs and is continuing, the rights of the
holders of such Common Securities to payment in respect of distributions and
payments upon liquidation, redemption and maturity will be subordinated to the
rights of the holders of such Preferred Securities. The Common Securities
issued by a Trust will also carry the right to vote and to appoint, remove or
replace any of the Trustees of such Trust. All of the Common Securities issued
by a Trust will be directly or indirectly owned by the Company.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES
The payment of periodic cash distributions with respect to the Preferred
Securities of each Trust out of moneys held by the Property Trustee of each
Trust, and payments on liquidation of each Trust and redemption of Preferred
Securities of each Trust, will be fully and unconditionally guaranteed by the
Company as described herein (each such guarantee, a "Preferred Securities
Guarantee"). Set forth below is a summary of the Preferred Securities
Guarantees that will be executed and delivered by the Company for the benefit
of the holders from time to time of Preferred Securities. Each Preferred
Securities Guarantee will be separately qualified under the Trust Indenture Act
and will be held by The Bank of New York, acting in its capacity as indenture
trustee with respect thereto (the "Guarantee Trustee"), for the benefit of
holders of the Preferred Securities of the applicable Trust. The terms of each
Preferred Securities Guarantee will be those set forth in such Preferred
Securities Guarantee and those made part of such Guarantee by the Trust
Indenture Act. This description summarizes the material terms of the Preferred
Securities Guarantees and is qualified in its entirety by reference to the form
of Preferred Securities Guarantee, which is filed as an exhibit to the
registration statement of which this prospectus forms a part, and the Trust
Indenture Act.
General
Pursuant to each Preferred Securities Guarantee, the Company will
irrevocably and unconditionally agree, to the extent set forth therein, to pay
in full, to the holders of the Preferred Securities issued by a Trust, the
Guarantee Payments (as defined herein) (without duplication of amounts
theretofore paid by such Trust), as and when due, regardless of any defense,
right of set-off or counterclaim that such Trust may have or assert. The
following payments or distributions with respect to Preferred Securities issued
by a Trust to the extent not paid or made by or on behalf of such Trust will be
subject to such Preferred Securities Guarantee (without duplication): (i) any
accumulated and unpaid distributions on such Preferred Securities, and the
redemption price, including all accumulated and unpaid distributions to, but
excluding, the date of redemption, with respect to such Preferred Securities
called for redemption by such Trust but if and only to the extent that in each
case the Company has made a payment to the related Property Trustee of interest
or principal, or premium, if any, on the Junior Subordinated Debt Securities
deposited in such Trust as trust assets and (ii) upon a voluntary or
involuntary dissolution, winding-up or termination of such Trust (other than in
connection with the distribution of Junior Subordinated Debt Securities to the
holders of such Preferred Securities in exchange for Preferred Securities or
the redemption of all of such Preferred Securities upon the maturity or
redemption of the Junior Subordinated Debt Securities), the lesser of (a) the
aggregate of the liquidation amount and all accumulated and unpaid
distributions on such Preferred Securities to the date of payment, to the
extent such Trust has funds on hand legally available therefor, and (b) the
amount of assets of such Trust remaining available for distribution to holders
of such Preferred Securities in liquidation of such Trust as required by
applicable law (the "Guarantee Payments"). The Company's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Company to the holders of such Preferred Securities or by causing the
applicable Trust to pay such amounts to such holders.
The Preferred Securities Guarantee is a guarantee from the time of issuance
of the applicable Preferred Securities, but the Preferred Securities Guarantee
covers distributions and other payments on such Preferred Securities only if
and to the extent that the Company has made a payment to the Property Trustee
of interest or
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principal, or premium, if any, on the Junior Subordinated Debt Securities
deposited in the applicable Trust as trust assets. If the Company does not make
interest, principal or premium, if any, payments on the Junior Subordinated
Debt Securities deposited in the applicable Trust as trust assets, the Property
Trustee will not make distributions on the Preferred Securities of such Trust
and the Trust will not have funds available therefor.
The Company's obligations under the Declaration for each Trust, the
Preferred Securities Guarantee issued with respect to Preferred Securities
issued by such Trust, the Junior Subordinated Debt Securities purchased by such
Trust and the Indenture, in the aggregate, will provide a full and
unconditional guarantee on a subordinated basis by the Company of payments due
on the Preferred Securities issued by such Trust.
Certain Covenants of the Company
In each Preferred Securities Guarantee, the Company will covenant that, so
long as any Preferred Securities issued by the applicable Trust remain
outstanding, the Company will not (i) declare or pay any dividends on, or
redeem, purchase, acquire or make a distribution or liquidation payment with
respect to, any of its capital stock (other than (a) dividends or distributions
in shares of, or options, warrants, rights to subscribe for or purchase shares
of, common stock of the Company, (b) any declaration of a dividend in
connection with the implementation of a shareholders' rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) as a result of a
reclassification of the Company's capital stock or the exchange or the
conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock, (d) the payment of accrued
dividends and 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, or (e) purchases of the
Company's common stock related to the issuance of the Company's common stock or
rights under any of the Company's benefit plans for its directors, officers or
employees, any of the Company's dividend reinvestment plans or stock purchase
plans, or any of the benefit plans of any of the Company's affiliates for such
affiliates' directors, officers or employees), (ii) make any payment of
principal or of interest or premium, if any, on or repay, repurchase or redeem
any debt security of the Company that ranks pari passu with or junior in
interest to the Junior Subordinated Debt Securities deposited in such Trust or
(iii) make any guarantee payments with respect to any guarantee by the Company
of the debt securities of any subsidiary of the Company (other than pursuant to
a Preferred Securities Guarantee) if such guarantee ranks pari passu with or
junior in interest to the Junior Subordinated Debt Securities deposited in such
Trust, if at such time (x) the Company shall be in default with respect to its
Guarantee Payments or other payment obligations under the related Preferred
Securities Guarantee, (y) there shall have occurred any Declaration Event of
Default under the applicable Declaration or (z) the Company shall have given
notice of its election to defer payments of interest on the Junior Subordinated
Debt Securities by extending the interest payment period as provided in the
terms of the Junior Subordinated Debt Securities deposited in such Trust as
trust assets and such period, or any extension thereof, is continuing. In
addition, so long as any Preferred Securities of a Trust remain outstanding,
the Company has agreed (i) to remain the sole direct or indirect owner of all
of the outstanding Common Securities of such Trust and not to cause or permit
such Common Securities to be transferred except to the extent permitted by the
applicable Declaration; provided that any permitted successor of the Company
under the Indenture may succeed to the Company's ownership of such Common
Securities and (ii) to use reasonable efforts to cause such Trust to continue
to be treated as a grantor trust for United States federal income tax purposes
except in connection with a distribution of Junior Subordinated Debt Securities
to the holders of such Preferred Securities as provided in the applicable
Declaration.
Amendments and Assignment
Except with respect to any changes that do not adversely affect the rights
of holders of Preferred Securities in any material respect (in which case no
consent will be required), each Preferred Securities Guarantee may be amended
only with the prior approval of the Company and the holders of not less than a
majority in liquidation amount of the outstanding Preferred Securities issued
by the applicable Trust. The manner of obtaining any
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such approval of holders of such Preferred Securities will be set forth in an
accompanying prospectus supplement. All guarantees and agreements contained in
a Preferred Securities Guarantee shall bind the successors, assignees,
receivers, trustees and representatives of the Company and shall inure to the
benefit of the holders of the Preferred Securities of the applicable Trust then
outstanding. Except in connection with a consolidation, merger or sale
involving the Company that is permitted under the Indenture, the Company may
not assign its obligations under any Preferred Securities Guarantee.
Termination of the Preferred Securities Guarantee
Each Preferred Securities Guarantee will terminate and be of no further
force and effect as to the Preferred Securities issued by the applicable Trust
(i) upon full payment of the redemption price of all Preferred Securities of
such Trust, (ii) upon distribution of the Junior Subordinated Debt Securities
to the holders of the Trust Securities of such Trust in exchange for all of the
Trust Securities issued by such Trust or (iii) upon full payment of the amounts
payable in accordance with the applicable Declaration upon liquidation of such
Trust. Notwithstanding the foregoing, each Preferred Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any holder of Preferred Securities issued by the applicable Trust must
restore payment of any sums paid with respect to such Preferred Securities or
under such Preferred Securities Guarantee.
Status of the Preferred Securities Guarantee
The Company's obligation under each Preferred Securities Guarantee to make
the Guarantee Payments will constitute an unsecured obligation of the Company
and will rank (i) subordinate and junior in right of payment to all other
liabilities of the Company, including the Junior Subordinated Debt Securities,
except those made pari passu or subordinate by their terms, and (ii) senior to
all capital stock (other than the most senior preferred stock issued, from time
to time, if any, by the Company, which preferred stock will rank pari passu
with each Preferred Securities Guarantee) now or hereafter issued by the
Company and to any guarantee now or hereafter entered into by the Company in
respect of any of its capital stock (other than the most senior preferred stock
issued, from time to time, if any, by the Company). The Company's obligations
under each Preferred Securities Guarantee will rank pari passu with respect to
obligations under other guarantee agreements which it may enter into from time
to time to the extent that (i) such agreements shall be entered into in
substantially the form of the Preferred Securities Guarantee and provide for
comparable guarantees by the Company of payment on preferred securities issued
by other trusts, partnerships or other entities affiliated with the Company
that are financing vehicles of the Company and (ii) the debentures or other
evidences of indebtedness of the Company relating to such preferred securities
are junior subordinated, unsecured indebtedness of the Company. The Company's
obligations under each Preferred Securities Guarantee are effectively
subordinated to all existing and future liabilities, including trade payables,
of the Company's subsidiaries, except to the extent that the Company is a
creditor of the subsidiaries and is recognized as such. Each Declaration
provides that each holder of Preferred Securities by acceptance thereof agrees
to the subordination provisions and other terms of the related Preferred
Securities Guarantee.
Each Preferred Securities Guarantee will constitute a guarantee of payment
and not merely of collection (that is, the guaranteed party may institute a
legal proceeding directly against the guarantor to enforce its rights under the
guarantee without first instituting a legal proceeding against any other person
or entity). Each Preferred Securities Guarantee will be deposited with the
Guarantee Trustee, as indenture trustee, to be held for the benefit of the
holders of the Preferred Securities issued by the applicable Trust. The
Guarantee Trustee will have the right to enforce the Preferred Securities
Guarantee on behalf of the holders of the Preferred Securities issued by the
applicable Trust. The holders of not less than a majority in aggregate
liquidation amount of the Preferred Securities issued by the applicable Trust
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of the
related Preferred Securities Guarantee or exercising any trust or other power
conferred upon the Guarantee Trustee under such Preferred Securities Guarantee.
If the Guarantee Trustee fails to enforce such Preferred Securities Guarantee
as above provided, any holder of Preferred Securities issued by the applicable
Trust may institute a legal
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proceeding directly against the Company to enforce its rights under such
Preferred Securities Guarantee without first instituting a legal proceeding
against the applicable Trust, the Guarantee Trustee or any other person or
entity. Notwithstanding the foregoing, if the Company has failed to make a
Guarantee Payment, a holder of Preferred Securities may directly institute a
proceeding against the Company for enforcement of the applicable Preferred
Securities Guarantee for such payment without first instituting a legal
proceeding against the applicable Trust, the Guarantee Trustee or any other
person or entity.
Miscellaneous
The Company will be required to provide annually to the Guarantee Trustee a
statement as to the performance by the Company of certain of its obligations
under each Preferred Securities Guarantee and as to any default in such
performance. The Company is required to file annually with the Guarantee
Trustee an officers' certificate as to the Company's compliance with all
conditions under each Preferred Securities Guarantee.
The Guarantee Trustee, prior to the occurrence of an event of default under
a Preferred Securities Guarantee and after the curing or waiving of all events
of default that may have occurred, will undertake to perform only such duties
as are specifically set forth in the applicable Preferred Securities Guarantee,
and no implied covenants will be read into such Preferred Securities Guarantee.
After a default with respect to a Preferred Securities Guarantee has occurred,
the Guarantee Trustee shall exercise such of the rights and powers vested in it
by such 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. Subject to such
provision, the Guarantee Trustee is under no obligation to exercise any of the
rights or powers vested in it by a Preferred Securities Guarantee at the
request or direction of any holder of the applicable Preferred Securities
unless it is offered security and indemnity satisfactory to it against the
costs, expenses and liabilities that might be incurred thereby.
Governing Law
Each Preferred Securities Guarantee will be governed by, and construed in
accordance with, the laws of the State of New York.
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBT SECURITIES
The Company may issue from time to time one or more series of Junior
Subordinated Debt Securities ("Junior Subordinated Debt Securities") under a
Junior Subordinated Indenture (the "Indenture") between the Company and The
Bank of New York, as trustee (the "Indenture Trustee"). The Indenture will be
qualified under the Trust Indenture Act. The form of the Indenture has been
filed as an exhibit to the registration statement of which this prospectus
forms a part. The following description summarizes the material terms of the
Indenture, and is qualified in its entirety by reference to the Indenture and
the Trust Indenture Act. Whenever particular provisions or defined terms in the
Indenture are referred to herein, such provisions or defined terms are
incorporated by reference herein. Section and article references used herein
are references to provisions of the Indenture.
General
The Junior Subordinated Debt Securities will be unsecured junior
subordinated obligations of the Company. The Indenture does not limit the
amount of additional indebtedness the Company or any of its subsidiaries may
incur. The Company's rights and the rights of its creditors, including the
holders of Junior Subordinated Debt Securities, to participate in the assets of
any subsidiary of the Company upon the latter's liquidation or recapitalization
will be subject to the prior claims of the subsidiary's creditors, except to
the extent that the Company may itself be a creditor with recognized claims
against the subsidiary.
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The Indenture does not limit the aggregate principal amount of indebtedness
that may be issued thereunder and provides that Junior Subordinated Debt
Securities may be issued thereunder from time to time in one or more series.
The Junior Subordinated Debt Securities are issuable in one or more series
pursuant to an indenture supplemental to the Indenture.
In the event Junior Subordinated Debt Securities are issued to a Trust in
connection with the issuance of Trust Securities by such Trust, such Junior
Subordinated Debt Securities subsequently may be distributed pro rata to the
holders of such Trust Securities in connection with the dissolution of such
Trust at the election of the Company or upon the occurrence of certain events
described in the prospectus supplement relating to such Trust Securities. Only
one series of Junior Subordinated Debt Securities will be issued to each Trust
in connection with the issuance of the Trust Securities by such Trust.
Reference is made to the prospectus supplement which will accompany this
prospectus for the following terms of the series of Junior Subordinated Debt
Securities being offered thereby (to the extent such terms are applicable to
the Junior Subordinated Debt Securities of such series): (i) the specific
designation of such Junior Subordinated Debt Securities, aggregate principal
amount, purchase price and premium, if any; (ii) any limit on the aggregate
principal amount of such Junior Subordinated Debt Securities; (iii) the date or
dates on which the principal of such Junior Subordinated Debt Securities is
payable and the right to shorten, extend or defer such date or dates; (iv) the
rate or rates at which such Junior Subordinated Debt Securities will bear
interest or the method of calculating such rate or rates, if any; (v) the date
or dates from which such interest shall accrue, the interest payment dates on
which such interest will be payable or the manner of determination of such
interest payment dates and the record dates for the determination of holders to
whom interest is payable on any such interest payment dates; (vi) the right, if
any, to extend or defer the interest payment periods and the duration of such
extension; (vii) the period or periods within which, the price or prices at
which, and the terms and conditions upon which, such Junior Subordinated Debt
Securities may be redeemed, in whole or in part, at the option of the Company;
(viii) the obligation, if any, of the Company to redeem or purchase such Junior
Subordinated Debt Securities pursuant to any sinking fund or analogous
provisions (including payments made in cash in anticipation of future sinking
fund obligations) or at the option of the holder thereof and the period or
periods for which, the price or prices at which, the currency or currencies
(including currency unit or units) in which and the terms and conditions upon
which, such Junior Subordinated Debt Securities will be redeemed or purchased,
in whole or part, pursuant to such obligation; (ix) any exchangeability,
conversion or prepayment provisions of the Junior Subordinated Debt Securities;
(x) any applicable United States federal income tax consequences, including
whether and under what circumstances the Company will pay additional amounts on
the Junior Subordinated Debt Securities held by a person who is not a U.S.
person in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Company will have the option to redeem such
Junior Subordinated Debt Securities rather than pay such additional amounts;
(xi) the form of such Junior Subordinated Debt Securities; (xii) if other than
denominations of $25 or any integral multiple thereof, the denominations in
which such Junior Subordinated Debt Securities will be issuable; (xiii) any and
all other terms with respect to such series, including any modification of or
additions to the events of default or covenants provided for with respect to
such series, and any terms which may be required by or advisable under
applicable laws or regulations not inconsistent with the Indenture; and (xiv)
whether such Junior Subordinated Debt Securities are issuable as a global
security, and in such case, the identity of the depositary. (Section 2.01)
Unless otherwise indicated in the prospectus supplement relating thereto,
the Junior Subordinated Debt Securities will be issued in United States dollars
in fully registered form without coupons in denominations of $25 or integral
multiples thereof. Junior Subordinated Debt Securities may be presented for
exchange and Junior Subordinated Debt Securities in registered form may be
presented for transfer in the manner, at the places and subject to the
restrictions set forth in the Junior Subordinated Debt Securities and the
prospectus supplement. Such services will be provided without charge, other
than any tax or other governmental charge payable in connection therewith, but
subject to the limitations provided in the Junior Subordinated Debt Securities.
Junior Subordinated Debt Securities may bear interest at a fixed rate or a
floating rate. Junior Subordinated Debt Securities bearing no interest or
interest at a rate that at the time of issuance is below the prevailing
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market rate will be sold at a discount below their stated principal amount.
Special United States federal income tax considerations applicable to any such
discounted Junior Subordinated Debt Securities or to certain Junior
Subordinated Debt Securities issued at par which are treated as having been
issued at a discount for United States federal income tax purposes will be
described in the relevant prospectus supplement.
Certain Covenants of the Company Applicable to the Junior Subordinated Debt
Securities
If Junior Subordinated Debt Securities are issued to a Trust in connection
with the issuance of Trust Securities by such Trust, the Company will covenant
in the Indenture that, so long as the Preferred Securities issued by the
applicable Trust remain outstanding, the Company will not (i) declare or pay
any dividends on, or redeem, purchase, acquire or make a distribution or
liquidation payment with respect to, any of its capital stock (other than (a)
dividends or distributions in shares of, or options, warrants, rights to
subscribe for or purchase shares of, common stock of the Company, (b) any
declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto,
(c) as a result of a reclassification of the Company's capital stock or the
exchange or the conversion of one class or series of the Company's capital
stock for another class or series of the Company's capital stock, (d) the
payment of accrued dividends and 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,
or (e) purchases of the Company's common stock related to the issuance of the
Company's common stock or rights under any of the Company's benefit plans for
its directors, officers, employees, any of the Company's dividend reinvestment
plans or stock purchase plans, or any of the benefit plans of any of the
Company's affiliates for such affiliates' directors, officers or employees),
(ii) make any payment of principal or of interest or premium, if any, on or
repay, repurchase or redeem any debt security of the Company that, ranks pari
passu with or junior in interest to the Junior Subordinated Debt Securities
deposited in such Trust or (iii) make any guarantee payments with respect to
any guarantee by the Company of the debt securities of any subsidiary of the
Company (other than pursuant to a Preferred Securities Guarantee) if such
guarantee ranks pari passu with or junior in interest to the Junior
Subordinated Debt Securities deposited in such Trust, if at such time (x) the
Company shall be in default with respect to its Guarantee Payments or other
payment obligations under the related Preferred Securities Guarantee, (y) there
shall have occurred any Indenture Event of Default with respect to the Junior
Subordinated Debt Securities deposited in such Trust as Trust assets or (z) the
Company shall have given notice of its election to defer payments of interest
on the Junior Subordinated Debt Securities by extending the interest payment
period as provided in the terms of the Junior Subordinated Debt Securities
deposited in such Trust as Trust assets and such period, or any extension
thereof, is continuing. In addition, if Junior Subordinated Debt Securities are
issued to a Trust in connection with the issuance of Trust Securities by such
Trust, for so long as any Preferred Securities issued by the applicable Trust
remain outstanding, the Company has agreed (i) to remain the sole direct or
indirect owner of all of the outstanding Common Securities issued by the
applicable Trust and not to cause or permit such Common Securities to be
transferred except to the extent permitted by the applicable Declaration;
provided that any permitted successor of the Company under the Indenture may
succeed to the Company's ownership of the Common Securities issued by the
applicable Trust, (ii) to comply fully with all of its obligations and
agreements contained in the related Declaration and (iii) to use reasonable
efforts to cause the applicable Trust to continue to be treated as a grantor
trust for United States federal income tax purposes except in connection with a
distribution of Junior Subordinated Debt Securities to holders of Preferred
Securities issued by the applicable Trust as provided in the related
Declaration.
Subordination
The payment of principal of, premium, if any, and interest on the Junior
Subordinated Debt Securities will, to the extent and in the manner set forth in
the Indenture, be subordinated and junior in right of payment to the prior
payment in full, in cash or cash equivalents, of all Senior Debt of the Company
whether outstanding on the date of this prospectus or thereafter incurred.
Upon any payment by the Company or distribution of assets of the Company to
creditors upon any liquidation, dissolution, winding up, receivership,
reorganization, assignment for the benefit of creditors,
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<PAGE>
marshaling of assets and liabilities or any bankruptcy, insolvency or similar
proceedings of the Company, the holders of all Senior Debt will first be
entitled to receive payment in full of all amounts due or to become due thereon
before the holders of the Junior Subordinated Debt Securities will be entitled
to receive any payment in respect of the principal of, premium, if any, or
interest on the Junior Subordinated Debt Securities.
In the event and during the continuation of any default by the Company in
the payment of principal, premium, interest or any other payment due on any
Senior Debt, or in the event that the maturity of any Senior Debt has been
accelerated because of a default, then, in either case, no payment shall be
made by the Company with respect to the principal (including redemption
payments) of or premium, if any, or interest on the Junior Subordinated Debt
Securities until such default shall have been cured or waived in writing or
shall have ceased to exist or such Senior Debt shall have been discharged or
paid in full.
In the event of the acceleration of the maturity of the Junior Subordinated
Debt Securities, then no payments shall be made by the Company with respect to
the principal (including redemption payments) of or premium, if any, or
interest on the Junior Subordinated Debt Securities until the holders of all
Senior Debt outstanding at the time of such acceleration shall receive payment
in full of such Senior Debt (including any amounts due upon acceleration).
In the event that, notwithstanding the foregoing, any payment shall be
received by the Indenture Trustee or any holder of Junior Subordinated Debt
Securities when such payment is prohibited by the preceding paragraphs, such
payment shall be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Senior Debt or their respective representatives,
or to the trustee or trustees under any indenture pursuant to which any of such
Senior Debt may have been issued, as their respective interests may appear.
By reason of such subordination, in the event of insolvency of the Company,
funds that would otherwise be payable to holders of Junior Subordinated Debt
Securities will be paid to the holders of Senior Debt of the Company to the
extent necessary to pay such Senior Debt in full, and the Company may be unable
to meet fully its obligations with respect to the Junior Subordinated Debt
Securities.
"Debt" is defined to mean, with respect to any person at any date of
determination (without duplication), (i) all indebtedness of such person for
borrowed money, (ii) all obligations of such person evidenced by bonds,
debentures, notes or other similar instruments, including obligations incurred
in connection with the acquisition of property, assets or businesses, (iii) all
obligations of such person in respect of letters of credit or bankers'
acceptances or other similar instruments (or reimbursement obligations with
respect thereto) issued on the account of such person, (iv) all obligations of
such person to pay the deferred purchase price of property or services, except
certain trade payables, (v) all obligations of such person as lessee under
capitalized leases, (vi) all Debt of others secured by a lien on any asset of
such person, whether or not such Debt is assumed by such person; provided that,
for purposes of determining the amount of any Debt of the type described in
this clause, if recourse with respect to such Debt is limited to such asset,
the amount of such Debt shall be limited to the lesser of the fair market value
of such asset or the amount of such Debt, (vii) all Debt of others guaranteed
by such person to the extent such Debt is guaranteed by such person and (viii)
to the extent not otherwise included in this definition, all obligations of
such person for claims in respect of derivative products, including interest
rate, foreign exchange rate and commodity prices, forward contracts, options,
swaps, collars and similar arrangements.
"Senior Debt" is defined to mean the principal of (and premium, if any) and
interest on all Debt of the Company whether created, incurred or assumed
before, on or after the date of the Indenture; provided that such Senior Debt
shall not include (i) Debt of the Company that, when incurred and without
respect to any election under Section 1111(b) of Title 11, U.S. Code, was
without recourse and (ii) any other Debt of the Company which by the terms of
the instrument creating or evidencing the same is specifically designated as
being subordinated to or pari passu with the Junior Subordinated Debt
Securities, and in particular the Junior Subordinated Debt Securities shall
rank pari passu with all other debt securities and guarantees issued to any
trust, partnership or other entity affiliated with the Company which is a
financing vehicle of the Company in connection with an issuance of preferred
securities by such financing entity.
17
<PAGE>
Indenture Events of Default
The Indenture provides that any one or more of the following described
events, which has occurred and is continuing, constitutes an "Indenture Event
of Default" with respect to each series of Junior Subordinated Debt Securities:
(a) failure for 30 days to pay interest on the Junior Subordinated Debt
Securities of such series when due; provided that a valid extension of the
interest payment period by the Company shall not constitute a default in
the payment of interest for this purpose;
(b) failure to pay principal of or premium, if any, on the Junior
Subordinated Debt Securities of such series when due whether at maturity,
upon redemption, by declaration or otherwise;
(c) failure for 30 days to pay any sinking fund or analogous fund
payment with respect to the Junior Subordinated Debt Securities of such
series;
(d) failure to duly observe or perform, in any material respect, any
other covenant or agreement contained in the Indenture with respect to such
series for 90 days after written notice to the Company from the Indenture
Trustee or the holders of at least 25% in principal amount of the
outstanding Junior Subordinated Debt Securities of such series;
(e) certain events in bankruptcy, insolvency or reorganization of the
Company; or
(f) any other Indenture Event of Default applicable to the Junior
Subordinated Debt Securities of such series. (Section 6.01)
In each and every such case, unless the principal of all the Junior
Subordinated Debt Securities of that series shall have already become due and
payable, either the Indenture Trustee or the holders of not less than 25% in
aggregate principal amount of the Junior Subordinated Debt Securities of that
series then outstanding, by notice in writing to the Company (and to the
Indenture Trustee if given by such holders), may declare the principal of all
the Junior Subordinated Debt Securities of that series to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable. (Section 6.01)
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debt Securities of that series have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Indenture Trustee or exercising any trust or power conferred on the
Indenture Trustee with respect to such series. (Section 6.06) The Indenture
Trustee or the holders of not less than 25% in aggregate outstanding principal
amount of the Junior Subordinated Debt Securities of that series may declare
the principal due and payable immediately upon an Indenture Event of Default
with respect to such series, but the holders of a majority in aggregate
outstanding principal amount of Junior Subordinated Debt Securities of such
series may rescind and annul such declaration and waive the default if the
default has been cured and a sum sufficient to pay all matured installments of
interest and principal otherwise than by acceleration and any premium has been
deposited with the Indenture Trustee. (Sections 6.01 and 6.06)
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debt Securities of that series may, on behalf of the
holders of all the Junior Subordinated Debt Securities of that series, waive
any past default, except a default in the payment of principal, premium, if
any, or interest (unless such default has been cured and a sum sufficient to
pay all matured installments of interest and principal otherwise than by
acceleration and any premium has been deposited with the Indenture Trustee) or
a call for redemption of the Junior Subordinated Debt Securities of that
series. (Section 6.06) The Company is required to file annually with the
Indenture Trustee a certificate as to whether or not the Company is in
compliance with all the conditions and covenants under the Indenture. (Section
5.03)
If Junior Subordinated Debt Securities are issued to a Trust in connection
with the issuance of Trust Securities of such Trust, then under the applicable
Declaration an Indenture Event of Default with respect to such series of Junior
Subordinated Debt Securities will constitute a Declaration Event of Default. If
a Declaration Event of Default under the applicable Declaration has occurred
and is continuing and such event is
18
<PAGE>
attributable to the failure of the Company to pay interest or principal, or
premium, if any, on the applicable series of Junior Subordinated Debt
Securities on the date such interest, principal or premium is otherwise payable
(or in the case of redemption, on the redemption date), then a holder of
Preferred Securities of such Trust may directly institute a Holder Direct
Action on or after the respective due date specified in the applicable series
of Junior Subordinated Debt Securities (see "The Trusts--The Property
Trustee"). In connection with such Holder Direct Action, the Company will be
subrogated to the rights of such holder of Preferred Securities under the
applicable Declaration to the extent of any payment made by the Company to such
holder of Preferred Securities in such Holder Direct Action. Except as
expressly provided in the preceding sentences or in the applicable prospectus
supplement, the holders of Preferred Securities of such Trust will not be able
to exercise directly any other remedy available to the holders of the
applicable series of Junior Subordinated Debt Securities.
Modification of the Indenture
From time to time the Company and the Indenture Trustee may, without the
consent of the holders of Junior Subordinated Debt Securities, amend the
Indenture or indentures supplemental thereto for one or more of the following
purposes: (a) to evidence the succession of another corporation or other entity
to the Company under the Indenture and the Junior Subordinated Debt Securities
and the assumption by such successor corporation or other entity of the
obligations of the Company thereunder; (b) to add further covenants,
restrictions, conditions or provisions for the protection of the holders of
Junior Subordinated Debt Securities; (c) to cure any ambiguity or to correct or
supplement any provision which may be defective or inconsistent with any other
provision; (d) to add to, change or eliminate any of the provisions of the
Indenture, provided that any such addition, change or elimination shall become
effective only after there are no such Junior Subordinated Debt Securities of
any series entitled to the benefit of such provision outstanding; (e) to
provide for the issuance of Junior Subordinated Debt Securities in coupon form;
(f) to evidence and provide for the acceptance of a successor trustee; (g) to
qualify or maintain the qualification of the Indenture under the Trust
Indenture Act; (h) to establish the form or terms of a series of Junior
Subordinated Debt Securities; and (i) to make any addition, change or
elimination of any provision of the Indenture that does not adversely affect
the rights of any holder of Junior Subordinated Debt Securities in any material
respect. (Section 9.01)
The Indenture contains provisions permitting the Company and the Indenture
Trustee, with the consent of the holders of not less than a majority in
principal amount of the outstanding Junior Subordinated Debt Securities of each
series affected by such modification, to modify the Indenture or any
supplemental indenture affecting the rights of the holders of such Junior
Subordinated Debt Securities; provided that no such modification may, without
the consent of the holder of each outstanding Subordinated Debt Security
affected thereby, (i) extend the fixed maturity of the Junior Subordinated Debt
Securities of any series, reduce the principal amount thereof, reduce the rate
or extend the time of payment of interest thereon, reduce any premium payable
upon the redemption thereof or (ii) reduce the percentage of Junior
Subordinated Debt Securities, the holders of which are required to consent to
any such modification. (Section 9.02)
Book-Entry and Settlement
If any Junior Subordinated Debt Securities of a series are represented by
one or more global securities (each, a "Global Security"), the applicable
prospectus supplement will describe the circumstances, if any, under which
beneficial owners of interests in any such Global Security may exchange such
interests for Junior Subordinated Debt Securities of such series and of like
tenor and principal amount in any authorized form and denomination. Principal
of and any premium and interest on a Global Security will be payable in the
manner described in the applicable prospectus supplement.
The specific terms of the depositary arrangement with respect to any portion
of a series of Junior Subordinated Debt Securities to be represented by a
Global Security will be described in the applicable prospectus supplement.
19
<PAGE>
Consolidation, Merger and Sale
The Indenture will provide that the Company may not consolidate with or
merge into any other person or convey, transfer or lease its properties and
assets substantially as an entirety to any person and may not permit any person
to merge into or consolidate with the Company unless (i) either the Company
will be the resulting or surviving entity or any successor or purchaser is a
corporation, limited liability company, partnership or trust organized under
the laws of the United States of America, any State or the District of
Columbia, and any such successor or purchaser expressly assumes the Company's
obligations under the Junior Subordinated Debt Securities and the Indenture and
(ii) immediately after giving effect to the transaction no Event of Default,
and no event which, after notice or lapse of time or both, would become an
Event of Default shall have occurred and be continuing. (Section 10.01)
Defeasance and Discharge
Under the terms of the Indenture, the Company will be discharged from any
and all obligations in respect of a series of the Junior Subordinated Debt
Securities (except in each case for certain obligations to register the
transfer or exchange of such Junior Subordinated Debt Securities, replace
stolen, lost or mutilated Junior Subordinated Debt Securities of such series,
maintain paying agencies and hold moneys for payment in trust) if (i) the
Company irrevocably deposits with the Indenture Trustee cash or U.S. Government
Obligations or a combination thereof, as trust funds in an amount certified to
be sufficient to pay at maturity (or upon redemption) the principal of,
premium, if any, and interest on all outstanding Junior Subordinated Debt
Securities of such series; (ii) such deposit will not result in a breach or
violation of, or constitute a default under, any agreement or instrument to
which the Company is a party or by which it is bound; (iii) the Company
delivers to the Indenture Trustee an opinion of counsel to the effect that the
holders of the Junior Subordinated Debt Securities of such series will not
recognize income, gain or loss for United States federal income tax purposes as
a result of such defeasance and discharge and that such defeasance and
discharge will not otherwise alter holders' United States federal income tax
treatment of principal, premium and interest payments on such Junior
Subordinated Debt Securities of such series (such opinion must be based on a
ruling of the Internal Revenue Service or a change in United States federal
income tax law occurring after the date of the Indenture, since such a result
would not occur under current tax law); (iv) the Company has delivered to the
Indenture Trustee an officers' certificate and an opinion of counsel, each
stating that all conditions precedent provided for relating to the defeasance
and discharge contemplated by such provision have been complied with; and (v)
no event or condition shall exist that pursuant to the applicable subordination
provisions, would prevent the Company from making payments of principal of,
premium, if any, and interest on the Junior Subordinated Debt Securities at the
date of the irrevocable deposit referred to above. (Section 11.01)
Governing Law
The Indenture and the Junior Subordinated Debt Securities will be governed
by the laws of the State of New York. (Section 13.05)
Information Concerning the Indenture Trustee
The Indenture Trustee, prior to the occurrence of an Indenture Event of
Default and after the curing of all Indenture Events of Default undertakes to
perform only such duties as are specifically set forth in the Indenture and,
after an Indenture Event of Default has occurred (which has not been cured or
waived), shall exercise such of the rights and powers vested in it by the
Indenture 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. (Section 7.01) Subject to such provision, the Indenture
Trustee is under no obligation to exercise any of the powers vested in it by
the Indenture at the request of any holder of Junior Subordinated Debt
Securities, unless offered security or indemnity satisfactory to it by such
holder against the costs, expenses and liabilities that might be incurred
thereby. (Section 7.02) The Indenture Trustee is not required to expend or risk
its own funds or otherwise incur personal financial liability in the
performance of its duties or in the exercise of any of its
20
<PAGE>
rights or powers if there is reasonable ground for believing that the repayment
of such funds or liability is not reasonably assured to it under the terms of
the Indenture or adequate indemnity against such risk is not reasonably assured
to it. (Section 7.01)
The Company and its subsidiaries maintain commercial banking and trust
relationships with the Indenture Trustee and its affiliates.
Miscellaneous
The Company will have the right at all times to assign any of its rights or
obligations under the Indenture to an affiliate; provided that, in the event of
any such assignment, the Company will remain jointly and severally liable for
all such obligations. Subject to the foregoing, the Indenture will be binding
upon and inure to the benefit of the parties thereto and their respective
successors and assigns. The Indenture provides that it may not otherwise be
assigned by the parties thereto other than by the Company to a successor or
purchaser pursuant to a consolidation, merger, sale or conveyance permitted by
the Indenture. (Section 13.11)
PLAN OF DISTRIBUTION
The Company may sell any series of Junior Subordinated Debt Securities and
each Trust may sell its Preferred Securities (the Junior Subordinated Debt
Securities and the Preferred Securities are collectively referred to herein as
the "Offered Securities") being offered hereby in any of three ways (or in any
combination thereof): (i) through underwriters or dealers; (ii) directly to a
limited number of purchasers or to a single purchaser; or (iii) through agents.
The prospectus supplement with respect to any Offered Securities will set forth
the terms of the offering of such Offered Securities, including the name or
names of any underwriters, dealers or agents and the respective amounts of such
Offered Securities underwritten or purchased by each of them, the initial
public offering price of such Offered Securities and the proceeds to the
Company or the applicable Trust, as the case may be, from such sale, any
discounts, commissions or other items constituting compensation from the
Company or the applicable Trust, as the case may be, and any discounts,
commissions or concessions allowed or reallowed or paid to dealers and any
securities exchanges on which such Offered Securities may be listed. Any public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
If underwriters are used in the sale of any Offered Securities, such Offered
Securities will be acquired by the underwriters for their own account and may
be resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Such Offered Securities may be either offered to the
public through underwriting syndicates represented by managing underwriters, or
directly by underwriters. Unless otherwise set forth in the prospectus
supplement, the obligations of the underwriters to purchase such Offered
Securities will be subject to certain conditions precedent and the underwriters
will be obligated to purchase all of such Offered Securities if any are
purchased.
Offered Securities may be sold directly by the Company or a Trust, as the
case may be, or through agents designated by the Company or such Trust, as the
case may be, from time to time. Any agent involved in the offer or sale of
Offered Securities in respect of which this prospectus is delivered will be
named, and any commissions payable by the Company or the applicable Trust, as
the case may be, to such agent will be set forth, in the prospectus supplement.
Unless otherwise indicated in the prospectus supplement, any such agent will be
acting on a best efforts basis for the period of its appointment.
If so indicated in the prospectus supplement, the Company or the applicable
Trust, as the case may be, will authorize underwriters, dealers or agents to
solicit offers by certain purchasers to purchase Offered Securities from the
Company or the applicable Trust, as the case may be, at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
Such contracts will be subject only to those conditions set forth in the
prospectus
21
<PAGE>
supplement, and the prospectus supplement will set forth the commission payable
for solicitation of such contracts.
Agents and underwriters may be entitled under agreements entered into with
the Company and the applicable Trust to indemnification by the Company and the
applicable Trust against certain civil liabilities, including liabilities under
the Securities Act, or to contribution with respect to payments which the
agents or underwriters may be required to make in respect thereof. Agents and
underwriters may be customers of, engage in transactions with, or perform
services for the Company, the applicable Trust and/or any of their affiliates
in the ordinary course of business.
Certain persons participating in the offering may engage in transactions
that stabilize, maintain or otherwise affect the price of the Offered
Securities. In connection with the offering, the underwriters or agents, as the
case may be, may purchase and sell the Offered Securities in the open market.
These transactions may include overallotment and stabilizing transactions and
purchases to cover syndicate short positions created in connection with the
offering. Stabilizing transactions consist of certain bids or purchases for the
purpose of preventing or retarding a decline in the market price of the Offered
Securities; and syndicate short positions involve the sale by the underwriters
or agents, as the case may be, of a greater number of Offered Securities than
they are required to purchase from the Company or the applicable Trust, as the
case may be, in the offering. The underwriters may also impose a penalty bid,
whereby selling concessions allowed to syndicate members or other broker-
dealers for the Offered Securities sold for their account may be reclaimed by
the syndicate if such Offered Securities are repurchased by the syndicate in
stabilizing or covering transactions. These activities may stabilize, maintain
or otherwise affect the market price of the Offered Securities, which may be
higher than the price that might otherwise prevail in the open market, and, if
commenced, may be discontinued at any time. These transactions may be effected
on the New York Stock Exchange, in the over-the-counter market or otherwise.
For a description of these activities, see "Plan of Distribution" or
"Underwriting" in the relevant prospectus supplement.
Unless otherwise indicated in the prospectus supplement, the Company does
not intend to list any of the Offered Securities on a national securities
exchange. No assurances can be given that there will be a market for the
Offered Securities.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, certain
matters of Delaware law relating to the validity of the Preferred Securities,
the enforceability of the applicable Declaration and the formation of the
Trusts will be passed upon by Richards, Layton & Finger, P.A., Wilmington,
Delaware, special Delaware counsel to the Trusts and the Company. The validity
of the applicable Preferred Securities Guarantee and the Junior Subordinated
Debt Securities offered hereby will be passed upon for the Company by Baker &
Botts, L.L.P., Houston, Texas and for the Underwriters by Dewey Ballantine LLP,
New York, New York. Certain legal matters may also be passed upon by Hugh Rice
Kelly, Esq., Executive Vice President, General Counsel and Corporate Secretary
of the Company or by Rufus S. Scott, Vice President, Deputy General Counsel and
Assistant Corporate Secretary of the Company. James A. Baker, III, a senior
partner in the law firm of Baker & Botts, L.L.P., is currently a director of
the Company and beneficial owner of 2,500 shares of the Company's common stock.
EXPERTS
The consolidated financial statements of the Company incorporated in this
prospectus by reference from the Company's Annual Report on Form 10-K for the
year ended December 31, 1997 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
22
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The Company estimates that expenses in connection with the offering
described in this Registration Statement will be as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee................... $139,000
Blue Sky expenses............................................... 5,000
Attorney's fees and expenses.................................... 140,000
Independent Auditor's fees and expenses......................... 15,000
Printing and engraving expenses................................. 200,000
Rating Agency fees.............................................. 128,000
Trustee's fees and expenses..................................... 8,000
Miscellaneous expenses.......................................... 5,000
--------
Total......................................................... $640,000
========
</TABLE>
Item 15. Indemnification of Directors and Officers.
Article 2.02.A.(16) and Article 2.02-1 of the Texas Business Corporation Act
and Article V of the Company's Amended and Restated Bylaws provide the Company
with broad powers and authority to indemnify its directors and officers and to
purchase and maintain insurance for such purposes. Pursuant to such statutory
and Bylaw provisions, the Company has purchased insurance against certain costs
of indemnification that may be incurred by it and by its officers and
directors.
Additionally, Article IX of the Company's Restated Articles of Incorporation
provides that a director of the Company is not liable to the Company for
monetary damages for any act or omission in the director's capacity as
director, except that Article IX does not eliminate or limit the liability of a
director for (i) breaches of such director's duty of loyalty to the Company and
its shareholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or knowing violation of law, (iii) transactions from
which a director receives an improper benefit, irrespective of whether the
benefit resulted from an action taken within the scope of the director's
office, (iv) acts or omissions for which liability is specifically provided by
statute and (v) acts relating to unlawful stock repurchases or payments of
dividends.
Article IX also provides that any subsequent amendments to Texas statutes
that further limit the liability of directors will inure to the benefit of the
directors, without any further action by shareholders. Any repeal or
modification of Article IX shall not adversely affect any right of protection
of a director of the Company existing at the time of the repeal or
modification.
The Underwriting Agreement to be entered into in connection with the
offering of the Securities described in this Registration Statement, will
provide that the Underwriters shall indemnify the Company, its directors and
certain officers of the Company against liabilities resulting from information
furnished by or on behalf of the Underwriters specifically for use in the
Registration Statement.
See "Item 17. Undertakings" for a description of the Commission's position
regarding such indemnification provisions.
Item 16. Exhibits.
See Index to Exhibits at page II-7.
II-1
<PAGE>
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-2
<PAGE>
(d) The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrants pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement or Amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, the State of Texas, on January 14,
1999.
HOUSTON INDUSTRIES INCORPORATED
/s/ Don D. Jordan
By:__________________________________
Don D. Jordan, Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or Amendment has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
</TABLE>
Signatures Title Date
/s/ Don D. Jordan Chairman and Chief January 14, 1999
- ----------------------------------- Executive Officer
Don D. Jordan and Director
(Principal
Executive Officer
and Director)
/s/ Stephen W. Naeve Executive Vice January 14, 1999
- ----------------------------------- President and Chief
Stephen W. Naeve Financial Officer
(Principal
Financial Officer)
/s/ Mary P. Ricciardello Vice President and January 14, 1999
- ----------------------------------- Comptroller
Mary P. Ricciardello (Principal Accounting
Officer)
/s/ Richard E. Balzhiser Director January 14, 1999
- -----------------------------------
Richard E. Balzhiser
/s/ Milton Carroll Director January 14, 1999
- -----------------------------------
Milton Carroll
/s/ John T. Cater Director January 14, 1999
- -----------------------------------
John T. Cater
/s/ O. Holcombe Crosswell Director January 14, 1999
- -----------------------------------
O. Holcombe Crosswell
/s/ Robert J. Cruikshank Director January 14, 1999
- -----------------------------------
Robert J. Cruikshank
/s/ Linnet F. Deily Director January 14, 1999
- -----------------------------------
Linnet F. Deily
/s/ Joseph M. Grant Director January 14, 1999
- -----------------------------------
Joseph M. Grant
II-4
<PAGE>
<TABLE>
<S> <C> <C>
Signatures Title Date
/s/ Robert C. Hanna Director January 14, 1999
- -----------------------------------
Robert C. Hanna
/s/ Lee W. Hogan Director January 14, 1999
- -----------------------------------
Lee W. Hogan
/s/ T. Milton Honea Director January 14, 1999
- -----------------------------------
T. Milton Honea
/s/ R. Steve Letbetter Director January 14, 1999
- -----------------------------------
R. Steve Letbetter
/s/ Alexander F. Schilt Director January 14, 1999
- -----------------------------------
Alexander F. Schilt
</TABLE>
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, HI Trust I
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on January 14, 1999.
HI Trust I
By: Houston Industries Incorporated,
as Sponsor
By: /s/ Linda Geiger
-----------------------------------
Name: Linda Geiger
Title: Assistant Treasurer
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, HI Trust II
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on January 14, 1999.
HI Trust II
By: Houston Industries Incorporated,
as Sponsor
By: /s/ Linda Geiger
-----------------------------------
Name: Linda Geiger
Title: Assistant Treasurer
II-7
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Report or SEC File or
Exhibit Registration Registration Exhibit
Number Document Description Statement Number Reference
------- ------------------------- ------------------- ------------ ---------
<C> <S> <C> <C> <C>
1.1* Form of Underwriting
Agreement
4.1 Form of Junior
Subordinated Indenture
(the "Junior Subordinated
Indenture") between the
Company and The Bank of
New York, as Trustee
4.2.1 Declaration of Trust of
HI Trust I
4.2.2 Declaration of Trust of
HI Trust II
4.3 Form of Amended and
Restated Declaration of
Trust
4.4.1 Certificate of Trust of
HI Trust I
4.4.2 Certificate of Trust of
HI Trust II
4.5 Form of Preferred
Security (included in
Exhibit 4.3)
4.6* Form of Supplemental
Indenture to the Junior
Subordinated Indenture
4.7* Form of Junior
Subordinated Debt
Security (included in
Exhibit 4.6)
4.8 Form of Preferred
Securities Guarantee
4.9** Restated Articles of Form 10-K for the 1-3187 3(a)
Incorporation of the year ended December
Company (restated as of 31, 1997
September 1997)
4.10** Amended and Restated Form 10-Q for the 1-3187 3
Bylaws of the Company quarterly period
(adopted on September 2, ended September 30,
1998) 1998
5.1 Opinion of Baker & Botts,
L.L.P.
5.2.1 Opinion of Richards,
Layton & Finger, P.A.
relating to HI Trust I
5.2.2 Opinion of Richards,
Layton & Finger, P.A.
relating to HI Trust II
8* Opinion of Counsel to the
Company as to certain tax
matters
12.1** Statement re: Computation Form 10-Q for the 1-3187 12
of Ratios quarterly period
ended September 30,
1998
23.1 Consent of Deloitte &
Touche LLP
23.2 Consent of Baker & Botts,
L.L.P. (included in
Exhibit 5.1)
23.3 Consent of Richards,
Layton & Finger, P.A.
(included in Exhibits
5.2.1 and 5.2.2)
25.1 Statement of Eligibility
under the Trust Indenture
Act of 1939, as amended
(the "Trust Indenture
Act"), of The Bank of New
York, as the Trustee
under the Junior
Subordinated Indenture
</TABLE>
II-8
<PAGE>
<TABLE>
<CAPTION>
Report or SEC File or
Exhibit Registration Registration Exhibit
Number Document Description Statement Number Reference
------- ------------------------- ------------------- ------------ ---------
<C> <S> <C> <C> <C>
25.2 Statement of Eligibility
under the Trust Indenture
Act of The Bank of New
York, as Property
Trustee, relating to HI
Trust I
25.3 Statement of Eligibility
under the Trust Indenture
Act of The Bank of New
York, as Property
Trustee, relating to HI
Trust II
25.4 Statement of Eligibility
under the Trust Indenture
Act of The Bank of New
York, as Guarantee
Trustee, relating to HI
Trust I
25.5 Statement of Eligibility
under the Trust Indenture
Act of The Bank of New
York, as Guarantee
Trustee, relating to HI
Trust II
</TABLE>
- --------
* To be filed by amendment or by a report on Form 8-K pursuant to Regulation
S-K, Item 601(b).
** Incorporated herein by reference as indicated.
II-9
<PAGE>
EXHIBIT 4.1
================================================================================
HOUSTON INDUSTRIES INCORPORATED
AND
THE BANK OF NEW YORK
AS TRUSTEE
--------------------------------
JUNIOR SUBORDINATED INDENTURE
DATED AS OF ___________, ____
--------------------------------
JUNIOR SUBORDINATED DEBENTURES
================================================================================
<PAGE>
TABLE OF CONTENTS
---------------
<TABLE>
<CAPTION>
Page
----
ARTICLE 1
Definitions
<S> <C> <C>
Section 1.01. Definitions.............................................. 2
ARTICLE 2
Issue Description, Terms, Execution Registration
and Exchange of Debentures
Section 2.01. Designation, Terms, Amount, Authentication and Delivery
of Debentures............................................ 8
Section 2.02. Form of Debenture and Trustee's Certificate.............. 10
Section 2.03. Date and Denominations of Debentures and Provisions
for Payment of Principal, Premium and Interest........... 11
Section 2.04. Execution of Debentures.................................. 12
Section 2.05. Exchange of Debentures................................... 14
Section 2.06. Temporary Debentures..................................... 15
Section 2.07. Mutilated, Destroyed, Lost or Stolen Debentures.......... 15
Section 2.08. Cancellation of Surrendered Debentures................... 16
Section 2.09. Provisions of Indenture and Debentures for Sole
Benefit of Parties and Debentureholders.................. 16
Section 2.10. Appointment of Authenticating Agent...................... 16
Section 2.11. Global Debentures........................................ 17
Section 2.12. CUSIP Numbers............................................ 18
ARTICLE 3
Redemption of Debentures and Sinking Fund Provisions
Section 3.01. Redemption............................................... 19
Section 3.02. Notice of Redemption..................................... 19
Section 3.03. Payment Upon Redemption.................................. 20
Section 3.04. Sinking Funds for Debentures............................. 21
Section 3.05. Satisfaction of Sinking Fund Payments With Debentures.... 21
Section 3.06. Redemption of Debentures for Sinking Fund................ 21
ARTICLE 4
Particular Covenants of the Company
Section 4.01. Payment of Principal of (and Premium, if any) and
Interest on Debentures.................................. 22
</TABLE>
i
<PAGE>
<TABLE>
<S> <C> <C>
Section 4.02. Maintenance of Office or Agent for Payment of
Debentures, Designation of Office or Agency for Payment,
Registration, Transfer and Exchange of Debentures........ 22
Section 4.03. Duties of Paying Agent; Company as Payment Agent; and
Holding Sums In Trust.................................... 22
Section 4.04. Appointment to Fill Vacancy in Office of Trustee......... 23
ARTICLE 5
Debentureholders Lists and Reports by the Company and the Trustee
Section 5.01. Company to Furnish Trustee Information as to Names and
Addresses of Debentureholders............................ 23
Section 5.02. Trustee to Preserve Information as to Names and
Addresses of Debentureholders............................ 24
Section 5.03. Annual and Other Reports to Be Filed by Company With
the Trustee.............................................. 25
Section 5.04. Trustee to Transmit Annual Report to Debentureholders.... 26
ARTICLE 6
Remedies of the Trustee and Debentureholders on Event of Default
Section 6.01. Events of Default Defined................................ 26
Section 6.02. Covenant of Company to Pay to Trustee Whole Amount Due
on Debentures on Default in Payment of Interest or
Principal (and Premiums, if any)........................ 29
Section 6.03. Application of Moneys Collected by Trustee............... 30
Section 6.04. Limitation on Suits by Holders of Debentures............. 31
Section 6.05. Remedies Cumulative; Delay or Omission in Exercise of
Rights Not Waiver of Default............................. 32
Section 6.06. Rights of Holders of Majority in Principal Amount of
Debentures to Direct Trustee and to Waive Defaults....... 32
Section 6.07. Trustee to Give Notice of Defaults Known To It, But
May Withhold in Certain Circumstances.................... 33
Section 6.08. Requirements of an Undertaking to Pay Costs in Certain
Suits Under Indenture or Against Trustee................. 33
ARTICLE 7
Concerning the Trustee
Section 7.01. Upon Event of Default Occurring and Continuing, Trustee
Shall Exercise Powers Vested In It, and Use Same Degree
of Care and Skill In Their Exercise, as Prudent
Individual Would Use..................................... 34
Section 7.02. Certain Rights of the Trustee............................ 35
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C>
Section 7.03. Trustee Not Liable for Recitals In Indenture or In
Debentures............................................... 37
Section 7.04. Trustee, Paying Agent or Debenture Registrar May Own
Debentures............................................... 37
Section 7.05. Moneys Received by Trustee to Be Held In Trust Without
Interest................................................. 37
Section 7.06. Trustee Entitled to Compensation, Reimbursement and
Indemnity................................................ 38
Section 7.07. Right of Trustee to Rely on Certificate of Officers of
Company Where No Other Evidence Specifically Prescribed.. 38
Section 7.08. Disqualification; Conflicting Interests.................. 39
Section 7.09. Requirements for Eligibility of Trustee.................. 39
Section 7.10. Resignation of Trustee and Appointment of Successor...... 39
Section 7.11. Acceptance by Successor to Trustee....................... 41
Section 7.12. Successor to Trustee by Merger, Consolidation or
Succession to Business................................... 42
Section 7.13. Preferential Collection of Claims Against the Company.... 42
ARTICLE 8
Concerning the Debentures
Section 8.01. Evidence of Action by Debentureholders................... 42
Section 8.02. Proof of Execution of Instruments and of Holding of
Debentures............................................... 43
Section 8.03. Who May Be Deemed Owners of Debentures................... 43
Section 8.04. Debentures Owned by the Company or Controlled or
Controlling Companies Disregarded for Certain Purposes... 43
Section 8.05. Instruments Executed by Debentureholders Bind Future
Holders.................................................. 44
ARTICLE 9
Supplemental Indentures
Section 9.01. Purposes for Which Supplemental Indenture May Be
Entered Into Without Consent of Debentureholders......... 44
Section 9.02. Modification of Indenture with Consent of
Debentureholders......................................... 46
Section 9.03. Effect of Supplemental Indentures........................ 47
Section 9.04. Debentures May Bear Notation of Changes By Supplemental
Indentures............................................... 47
Section 9.05. Opinion of Counsel....................................... 47
ARTICLE 10
Consolidation, Merger, Sale or Conveyance
Section 10.01. Company May Consolidate, etc. on Certain Terms........... 48
Section 10.02. Successor Corporation Substituted........................ 48
Section 10.03. Opinion of Counsel....................................... 48
</TABLE>
iii
<PAGE>
ARTICLE 11
Satisfaction and Discharge of Indenture; Unclaimed Moneys
<TABLE>
<S> <C> <C>
Section 11.01. Satisfaction and Discharge of Indenture.................. 48
Section 11.02. Application by Trustee of Funds Deposited For Payment of
Debentures............................................... 51
Section 11.03. Repayment of Moneys Held by the Paying Agent............. 51
Section 11.04. Repayment of Moneys Held by the Trustee.................. 51
Section 11.05. Indemnification Relating to Governmental Obligations..... 51
ARTICLE 12
Immunity of Incorporators, Stockholders, Officers and Directors
Section 12.01. Incorporators, Stockholders, Officers and Directors of
Company Exempt From Individual Liability................. 52
ARTICLE 13
Miscellaneous Provisions
Section 13.01. Successors and Assigns of Company Bound by Indenture..... 52
Section 13.02. Acts of Board, Committee or Officer of Successor
Company Valid............................................ 52
Section 13.03. Surrender of Powers of the Company....................... 52
Section 13.04. Required Notices or Demands May be Served by Mail........ 53
Section 13.05. Indenture and Debentures to Be Construed in Accordance
with Laws of the State of New York....................... 53
Section 13.06. Officer's Certificate and Opinion of Counsel to be
Furnished Upon Application or Demands by Company;
Statements To Be Included In Each Certificate or Opinion
With Respect to Compliance With Condition or Covenant.... 53
Section 13.07. Payments Due on Sundays or Holidays...................... 53
Section 13.08. Provisions Required by Trust Indenture Act of 1939
to Control............................................... 54
Section 13.09. Indenture May Be Executed by its Counterparts............ 54
Section 13.10. Separability of Indenture Provisions..................... 54
Section 13.11. Assignment by Company to a Subsidiary or Affiliate....... 54
Section 13.12. Holders of Preferred Securities as Third Party
Beneficiaries of the Indenture; Holders of Preferred
Securities May Institute Legal Proceedings Against the
Company in Certain Cases................................. 54
ARTICLE 14
Subordination of debentures
Section 14.01. Agreement to Subordinate................................. 55
Section 14.02. Default on Senior Debt................................... 55
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C> <C>
Section 14.03. Liquidation; Dissolution; Bankruptcy..................... 56
Section 14.04. Subrogation of Debentures................................ 57
Section 14.05. Authorization by Debentureholders........................ 58
Section 14.06. Notice to Trustee........................................ 58
Section 14.07. Trustee's Relation to Senior Debt........................ 59
Section 14.08. No Impairment to Subordination........................... 59
Section 14.09. Article Applicable to Paying Agents...................... 60
Section 14.10. Trust Moneys Not Subordinated............................ 60
</TABLE>
v
<PAGE>
THIS JUNIOR SUBORDINATED INDENTURE, is dated as of the ___ day of
_________, ____, between Houston Industries Incorporated, a corporation duly
organized and existing under the laws of the State of Texas (hereinafter
sometimes referred to as the "Company"), and The Bank of New York, a New York
banking corporation, as Trustee (hereinafter sometimes referred to as the
"Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has fully
authorized the execution and delivery of this Indenture to provide for the
issuance of unsecured junior subordinated debentures (hereinafter referred to as
the "Debentures"), in an unlimited aggregate principal amount to be issued from
time to time in one or more series in accordance with the terms of this
Indenture, as registered Debentures without coupons, to be authenticated by the
certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the Debentures are
to be authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture;
WHEREAS, the Debentures and the certificate of authentication to be borne
by the Debentures (the "Certificate of Authentication") are to be substantially
in such forms as may be approved by the Board of Directors (as defined below) or
set forth in any indenture supplemental to this Indenture;
AND WHEREAS, all acts and things necessary to make the Debentures issued
pursuant hereto, when executed by the Company and authenticated and delivered by
the Trustee in accordance with the terms of this Indenture, the valid, binding
and legal obligations of the Company, and to constitute a valid indenture and
agreement according to its terms, have been done and performed or will be done
and performed prior to the issuance of such Debentures, and the execution of
this Indenture has been and the issuance hereunder of the Debentures has been or
will be prior to issuance in all respects duly authorized, and the Company, in
the exercise of the legal right and power in it vested, executes this Indenture
and proposes to make, execute, issue and deliver the Debentures;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Debentures
are and are to be authenticated, issued and delivered, and in consideration of
the premises and of the acquisition and acceptance of the Debentures by the
holders thereof, the Company covenants and agrees with the Trustee, for the
equal and proportionate benefit (subject to the provisions of this Indenture) of
the respective holders from time to time of the Debentures, without any
discrimination, preference or priority of any one Debenture over any other by
reason of priority in the time of issue, sale or negotiation thereof, or
otherwise, except as provided herein, as follows:
1
<PAGE>
ARTICLE 1
Definitions
Section 1.01. Definitions. The terms defined in this Section (except as in
this Indenture otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture, any resolution of the Board of
Directors of the Company and of any indenture supplemental hereof shall have the
respective meanings specified in this Section. All other terms used in this
Indenture which are defined in the Trust Indenture Act of 1939, as amended, or
which are by reference in such Act defined in the Securities Act of 1933, as
amended (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of this
instrument.
"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; provided, however, no HI Trust to which
Debentures have been issued shall be deemed to be an Affiliate of the Company.
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 an authenticating agent with respect to all or
any of the series of Debentures, as the case may be, appointed with respect to
all or any series of the Debentures, as the case may be, by the Trustee pursuant
to Section 2.10.
"Board of Directors" means the Board of Directors of the Company, or any
committee of such Board duly authorized to act hereunder.
"Board Resolution" means a copy of one or more resolutions, certified by
the secretary or an assistant secretary of the Company to have been adopted or
consented to by the Board of Directors and to be in full force and effect, and
delivered to the Trustee.
"Business Day", with respect to any series of Debentures, means any day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in the Borough of Manhattan, The City and State of New York or Houston, Texas,
are authorized or obligated by law or executive order to close or (iii) a day on
which the Corporate Trust Office of the Trustee, or, with respect to Debentures
of a series initially issued to an HI Trust, the principal corporate trust
office of the Property Trustee under the related Declaration of Trust, is closed
for business.
"Certificate" means a certificate signed by the principal executive
officer, the principal financial officer, the principal accounting officer or
the Treasurer of the Company. The Certificate need not comply with the
provisions of Section 13.06.
2
<PAGE>
"Common Securities" means the common undivided beneficial interests in the
assets of the applicable HI Trust.
"Company" means Houston Industries Incorporated, a corporation duly
organized and existing under the laws of the State of Texas, and, subject to the
provisions of Article 10, shall also include its successor and assigns.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of the execution of this Indenture is located at 101
Barclay Street, Floor 21 West, New York, New York 10286, Attention: Corporate
Trust Trustee Administration.
"Debenture" or "Debentures" means any Debenture or Debentures, as the case
may be, authenticated and delivered under this Indenture.
"Debenture Register" has the meaning assigned in Section 2.05(b).
"Debenture Registrar" has the meaning assigned in Section 2.05(b).
"Debentureholder", "holder of Debentures", "registered holder", or other
similar term, means the person or persons in whose name or names a particular
Debenture shall be registered on the books of the Company kept for the purpose
in accordance with the terms of this Indenture.
"Debt" means, with respect to any Person at any date of determination
(without duplication), (i) all indebtedness of such Person for borrowed money,
(ii) all obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses, (iii) all obligations of such
Person in respect of letters of credit or bankers' acceptances or other similar
instruments (or reimbursement obligations thereto) issued on the account of such
person, (iv) all obligations of such person to pay the deferred purchase price
of property or services, except Trade Payables, (v) all obligations of such
Person as lessee under capitalized leases, (vi) all Debt of others secured by a
Lien on any asset of such Person, whether or not such Debt is assumed by such
Person; provided that, for purposes of determining the amount of any Debt of the
type described in this clause (vi), if recourse with respect to such Debt is
limited to such asset, the amount of such Debt shall be limited to the lesser of
the fair market value of such asset or the amount of such Debt, (vii) all Debt
of others Guaranteed by such Person to the extent such Debt is Guaranteed by
such Person, and (viii) to the extent not otherwise included in this definition,
all obligations of such Person for claims in respect of derivative products,
including interest rate, foreign exchange rate and commodity prices, forward
contracts, options, swaps, collars and similar arrangements.
"Declaration of Trust" means the Amended and Restated Declaration of Trust
of an HI Trust, if any, specified in the applicable Board Resolution or
supplemental indenture establishing a particular series of Debentures pursuant
to Section 2.01 hereof.
3
<PAGE>
"Default" means any event, act or condition which with notice or lapse of
time, or both, would constitute an Event of Default hereunder.
"Depositary" means with respect to Debentures of any series, for which the
Company shall determine that such Debentures will be issued as one or more
Global Debentures, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Exchange Act or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to either Section 2.01 or 2.11.
"Event of Default", with respect to Debentures of a particular series means
any event specified in Section 6.01(a), continued for the period of time, if
any, and the giving of the notice, if any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Debenture" means, with respect to any series of Debentures, a
Debenture in the form prescribed in Section 2.11 executed by the Company and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with the Indenture, which shall be registered in
the name of the Depositary or its nominee.
"Governmental Obligations" means securities that are (i) direct obligations
of the United States of America 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 of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the Governmental Obligation or the specific payment of principal of
or interest on the Governmental Obligation evidenced by such depository receipt.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Debt or other obligation of any other
Person and, without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such Debt or
other obligation of such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for purposes of assuring in any
other manner the obligee of such Debt of other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part); provided that the term "Guarantee"
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shall not include endorsements for collection or deposit in the ordinary course
of business. The term "Guarantee" used as a verb has a corresponding meaning.
"HI Trust" means any statutory business trust created under the laws of the
State of Delaware as specified in the applicable Board Resolution or
supplemental indenture establishing a particular series of Debentures pursuant
to Section 2.01 hereof.
"Indenture" means this instrument as originally executed, or, if amended or
supplemented as herein provided, as so amended or supplemented.
"Interest Payment Date" when used with respect to any installment of
interest on a Debenture of a particular series means the date specified in such
Debenture or in a Board Resolution or in an indenture supplemental hereto with
respect to such series as the fixed date on which an installment of interest
with respect to Debentures of that series is due and payable.
"Lien" means, with respect to any property, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
property. For purposes of this Indenture, the Company shall be deemed to own
subject to a Lien any property which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such property.
"Officers' Certificate" means a certificate signed by the President or a
Vice President and by the Treasurer or an Assistant Treasurer or the Comptroller
or an Assistant Comptroller or the Secretary or an Assistant Secretary of the
Company, and delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 13.06, if and to the extent required by the
provisions thereof.
"Opinion of Counsel" means an opinion in writing signed by legal counsel,
who may be counsel for the Company, an HI Trust or the Trustee, which may be an
employee of the Company but not an employee of an HI Trust or the Trustee, and
who shall be reasonably acceptable to the Trustee. Each such opinion shall
include the statements provided for in Section 13.06, if and to the extent
required by the provisions thereof.
"Outstanding", when used with reference to Debentures of any series,
subject to the provisions of Section 8.01, means, as of any particular time, all
Debentures of that series theretofore authenticated and delivered by the Trustee
under this Indenture, except (a) Debentures theretofore cancelled by the Trustee
or any paying agent, or delivered to the Trustee or any paying agent for
cancellation or which have previously been cancelled; (b) Debentures or portions
thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust for the holders of such Debentures by the Company
(if the Company shall act as its own paying agent); provided, however, that if
such Debentures or portions of such Debentures are to be redeemed prior to the
maturity thereof, notice of such
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redemption shall have been given as in Article 3 provided, or provision
satisfactory to the Trustee shall have been made for giving such notice; (c)
Debentures paid pursuant to Section 2.07; and (d) Debentures in lieu of or in
substitution for which other Debentures shall have been authenticated and
delivered pursuant to the terms of Section 2.07; provided, however, that in
determining whether the holders of the requisite principal amount of Outstanding
Debentures are present at a meeting of holders of Debentures for quorum purposes
or have consented to or voted in favor of any request, demand, authorization,
direction, notice, consent, waiver, amendment or modification hereunder,
Debentures held for the account of the Company, any of its subsidiaries or any
of its Affiliates shall be disregarded and deemed not to be Outstanding, except
that in determining whether the Trustee shall be protected in making such a
determination or relying upon any such quorum, consent or vote, only Debentures
which the Trustee actually knows to be so owned shall be so disregarded.
"Person" means any individual, corporation, estate, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Debentures of any series,
means the place or places where the principal of and any premium and interest on
the Debentures of that series are payable as specified as contemplated by
Section 2.01.
"Predecessor Debenture" of any particular Debenture means every previous
Debenture evidencing all or a portion of the same debt as that evidenced by such
particular Debenture; and, for the purposes of this definition, any Debenture
authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or
stolen Debenture shall be deemed to evidence the same debt as the lost,
destroyed or stolen Debenture.
"Preferred Securities" means the preferred undivided beneficial interests
in the assets of the applicable HI Trust.
"Property Trustee" means the entity performing the function of the Property
Trustee under the applicable Declaration of Trust of an HI Trust.
"Responsible Officer" shall mean, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such Person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
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"Security Exchange" when used with respect to the Debentures of any series
which are held as trust assets of an HI Trust pursuant to the Declaration of
Trust of such HI Trust, means the distribution of the Debentures of such series
by such HI Trust in exchange for the Preferred Securities and Common Securities
of such HI Trust in dissolution of such HI Trust pursuant to the Declaration of
Trust of such HI Trust.
"Senior Debt" means the principal of (and premium, if any) and interest on
all Debt of the Company whether created, incurred or assumed before, on or after
the date of this Indenture; provided that such Senior Debt shall not include (i)
Debt of the Company that, when incurred and without respect to any election
under Section 1111(b) of Title 11, U.S. Code, was without recourse, and (ii) any
other Debt of the Company which by the terms of the instrument creating or
evidencing the same is specifically designated as being subordinated to or pari
passu with the Debentures, and in particular the Debentures shall rank pari
passu with all other debt securities and guarantees issued to any trust,
partnership or other entity affiliated with the Company which is a financing
vehicle of the Company in connection with an issuance of preferred securities by
such financing entity.
"Subsidiary" means any corporation at least a majority of whose outstanding
voting stock shall at the time be owned, directly or indirectly, by the Company
or by one or more Subsidiaries or by the Company and one or more Subsidiaries.
For the purposes only of this definition of the term "Subsidiary", the term
"voting stock", as applied to the stock of any corporation shall mean stock of
any class or classes having ordinary voting power for the election of a majority
of the directors of such corporation, other than stock having such power only by
reason of the occurrence of a contingency.
"Trade Payables" means, with respect to any Person, any accounts payable or
any other indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person or any of its Subsidiaries arising in the
ordinary course of business in connection with the acquisition of goods or
services.
"Trustee" means The Bank of New York, a New York banking corporation, and,
subject to the provisions of Article 7, shall also include its successors and
assigns, and, if at any time there is more than one person acting in such
capacity hereunder, "Trustee" shall mean each such person. The term "Trustee"
as used with respect to a particular series of the Debentures shall mean the
trustee with respect to that series.
"Trust Indenture Act", subject to the provisions of Section 9.01 and 9.02,
means the Trust Indenture Act of 1939, as amended and in effect at the date of
execution of this Indenture.
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ARTICLE 2
Issue Description, Terms, Execution Registration and Exchange of Debentures
Section 2.01. Designation, Terms, Amount, Authentication and Delivery of
Debentures. The aggregate principal amount of Debentures which may be
authenticated and delivered under this Indenture is unlimited.
The Debentures may be issued in one or more series up to the aggregate
principal amount of Debentures of that series from time to time authorized by or
pursuant to a Board Resolution or pursuant to one or more indentures
supplemental hereto, prior to the initial issuance of Debentures of a particular
series. Prior to the initial issuance of Debentures of any series, there shall
be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto:
(1) the title of the Debentures of the series (which shall distinguish
the Debentures of the series from all other Debentures);
(2) any limit upon the aggregate principal amount of the Debentures of
that series which may be authenticated and delivered under this Indenture
(except for Debentures authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Debentures of that
series);
(3) the date or dates on which the principal of the Debentures of the
series is payable and the right to shorten, extend or defer such date or
dates;
(4) the rate or rates at which the Debentures of the series shall bear
interest or the manner of calculation of such rate or rates, if any;
(5) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the manner
of determination of such Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on any such Interest
Payment Dates;
(6) the right, if any, to extend or defer the interest payment periods
and the duration of such extension;
(7) the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Debentures of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Debentures of the series pursuant to any sinking fund or analogous
provisions (including payments made in cash in anticipation of future
sinking fund obligations) or at the option of a
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holder thereof and the period or periods within which, the price or prices
at which, the currency or currencies (including currency unit or units) in
which and the terms and conditions upon which, Debentures of the series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) any exchangeability, conversion or prepayment provisions of the
Debentures;
(10) the form of the Debentures of the series including the form of
the Certificate of Authentication for such series;
(11) if other than denominations of $25 or any integral multiple
thereof, the denominations in which the Debentures of the series shall be
issuable;
(12) whether the Debentures are issuable as one or more Global
Debentures and, in such case, the identity of the Depositary for such
series, the form of any legend or legends which shall be borne by any such
Global Debentures in addition to or in lieu of that set forth in Section
2.11 and any circumstances in addition to or in lieu of those set forth in
Section 2.11 in which any such Global Debentures may be exchanged in whole
or in part for Debentures registered, and any transfer of such Global
Debentures in whole or in part may be registered, in the name or names of
Persons other than the Depositary for such Global Debentures or a nominee
thereof;
(13) if the Debentures of such series are to be deposited as trust
assets in an HI Trust the name of the applicable HI Trust (which shall
distinguish such statutory business trust from all other HI Trusts) into
which the Debentures of such series are to be deposited as trust assets and
the date of its Declaration of Trust;
(14) the place or places where the principal of (and premium, if any)
and interest on the Debentures of such series shall be payable, the place
or places where the Debentures of such series may be presented for
registration of transfer or exchange, and the place or places where notices
and demands to or upon the Company in respect of the Debentures of such
series may be made;
(15) if other than U.S. dollars, the currency or currencies (including
currency unit or units) in which the principal of (and premium, if any) and
interest, if any, on the Debentures of the series shall be payable, or in
which the Debentures of the series shall be denominated;
(16) the additions, modifications or deletions, if any, in the Events
of Default or covenants of the Company set forth herein with respect to the
Debentures of such series;
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(17) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the maturity thereof;
(18) the additions or changes, if any, to this Indenture with respect
to the Debentures of such series as shall be necessary to permit or
facilitate the issuance of the Debentures of such series in bearer form,
registrable or not registrable as to principal, and with or without
interest coupons;
(19) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Debentures of such series or the
manner in which such amounts will be determined;
(20) the appointment of any Paying Agent or Agents for the Debentures
of such series;
(21) the relative degree, if any, to which the Debentures of such
series shall be senior to or be subordinated to other series of Debentures
in right of payment, whether such other series of Debentures are
Outstanding or not;
(22) any and all other terms with respect to the Debentures of such
series (and any terms which may be required by or advisable under
applicable laws or regulations not inconsistent with the terms of this
Indenture); and
(23) an identification of any applicable United States Federal income
tax consequences with respect to the Debentures of such series, including
whether and under what circumstances the Company will pay additional
amounts on the Debentures of such series held by a Person who is not a U.S.
Person in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Company will have the option to redeem the
Debentures of such series rather than pay such additional amounts.
All Debentures of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to any
such Board Resolution or in any indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 2.02 Form of Debenture and Trustee's Certificate. The Debentures of
any series and the Trustee's certificate of authentication to be borne by such
Debentures shall be substantially
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of the tenor and purport as set forth in one or more indentures supplemental
hereto or as provided in a Board Resolution and as set forth in an Officers'
Certificate, and may have such letters, numbers or other marks of identification
or designation and such legends or endorsements typewritten, printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, 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 or automated quotation system on
which Debentures of that series may be listed or traded, or to conform to usage.
Section 2.03. Date and Denominations of Debentures and Provisions for
Payment of Principal, Premium and Interest. The Debentures shall be issuable as
registered Debentures and in the denominations of $25 or any integral multiple
thereof, subject to Section 2.01(11). The Debentures of a particular series
shall bear interest payable on the dates and at the rate specified with respect
to that series. The principal of and the interest on the Debentures of any
series, as well as any premium thereon in case of redemption thereof prior to
maturity, shall, subject to Section 2.01(8) and (15), be payable in the coin or
currency of the United States of America which at the time is legal tender for
public and private debt, at the Place of Payment. Each Debenture shall be dated
the date of its authentication. Interest on the Debentures shall be computed on
the basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Debenture which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Debentures of that series shall be paid to the person in whose name said
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on the regular record date for such interest installment. In the event
that any Debenture of a particular series or portion thereof is called for
redemption and the redemption date is subsequent to a regular record date with
respect to any Interest Payment Date and prior to such Interest Payment Date,
interest on such Debenture will be paid upon presentation and surrender of such
Debenture as provided in Section 3.03.
Any interest on any Debenture which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date for Debentures of the same
series (herein called "Defaulted Interest") shall forthwith cease to be payable
to the registered holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by the Company, at
its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Debentures to the persons in whose names such Debentures (or their
respective Predecessor Debentures) 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 such Debenture 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
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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 not be more than 15 nor 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 Debentureholder at his or her address as it
appears in the Debenture Register (as hereinafter defined), 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
mailed as aforesaid, such Defaulted Interest shall be paid to the persons
in whose names such Debentures (or their Predecessor Debentures) are
registered on such special record date and shall be no longer payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Debentures in any other lawful manner not inconsistent with the
requirements of any securities exchange or automated quotation system on
which such Debentures may be listed or traded, 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.
Unless otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of Debentures pursuant
to Section 2.01 hereof, the term "regular record date" as used in this Section
with respect to a series of Debentures with respect to any Interest Payment Date
for such series shall mean either the fifteenth day of the month immediately
preceding the month in which an Interest Payment Date established for such
series pursuant to Section 2.01 hereof shall occur, if such Interest Payment
Date is the first day of a month, or the last day of the month immediately
preceding the month in which an Interest Payment Date established for such
series pursuant to Section 2.01 hereof shall occur, if such Interest Payment
Date is the fifteenth day of a month, whether or not such date is a Business
Day.
Subject to the foregoing provisions of this Section, each Debenture of a
series delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Debenture of such series shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debenture.
Section 2.04. Execution of Debentures. The Debentures shall, subject to
the provisions of Section 2.06, be printed on steel engraved borders or fully or
partially engraved, or legibly typed, as the proper officers of the Company may
determine, and shall be signed on behalf of the Company
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by the Chairman or Vice Chairman of its Board of Directors or its Chief
Executive Officer, President or one of its Vice Presidents, under its corporate
seal attested by its Secretary or one of its Assistant Secretaries. The
signature of the Chairman, Vice Chairman, Chief Executive Officer, President or
a Vice President and/or the signature of the Secretary or an Assistant Secretary
in attestation of the corporate seal, upon the Debentures, may be in the form of
a manual or facsimile signature and may be imprinted or otherwise reproduced on
the Debentures and for that purpose the Company may use the manual or facsimile
signature of any person who shall have been a Chairman, Vice Chairman, Chief
Executive Officer, President or Vice President, or of any person who shall have
been a Secretary or Assistant Secretary, notwithstanding the fact that at the
time the Debentures shall be authenticated and delivered or disposed of such
person shall have ceased to be the Chairman, Vice Chairman, Chief Executive
Officer, President or a Vice President, or the Secretary or an Assistant
Secretary, of the Company, as the case may be. The seal of the Company may be in
the form of a facsimile of the seal of the Company and may be impressed,
affixed, imprinted or otherwise reproduced on the Debentures.
Only such Debentures as shall bear thereon a Certificate of Authentication
substantially in the form established for such Debentures, executed manually by
an authorized signatory of the Trustee, or by any Authenticating Agent with
respect to such Debentures, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate executed by the
Trustee, or by any Authenticating Agent appointed by the Trustee with respect to
such Debentures, upon any Debenture executed by the Company shall be conclusive
evidence that the Debenture so authenticated has been duly authenticated and
made available for delivery hereunder and that the holder is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Debenture
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Debenture to the Trustee for
cancellation as provided in Section 2.08, for all purposes of this Indenture
such Debenture shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Debentures of any series executed by the
Company to the Trustee for authentication, together with a written order of the
Company for the authentication and delivery of such Debentures, signed by its
President or any Vice President and its Treasurer or any Assistant Treasurer,
and the Trustee in accordance with such written order shall authenticate and
make available for delivery such Debentures. Each Debenture shall be dated the
date of its authentication by the Trustee.
In authenticating such Debentures and accepting the additional
responsibilities under this Indenture in relation to such Debentures, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form and
terms thereof have been established in conformity with the provisions of this
Indenture.
The Trustee shall not be required to authenticate such Debentures if the
issue of such Debentures pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities
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under the Debentures and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Section 2.05. Exchange of Debentures. (a) Debentures of any series may be
exchanged upon presentation thereof at a Place of Payment, for other Debentures
of such series of authorized denominations, and for a like aggregate principal
amount, upon payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, all as provided in this Section. In respect of any
Debentures so surrendered for exchange, the Company shall execute, the Trustee
shall authenticate and such office or agency shall make available for delivery
in exchange therefor the Debenture or Debentures of the same series which the
Debentureholder making the exchange shall be entitled to receive, bearing
numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at the Corporate Trust
Office of the Trustee (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment is herein sometimes
collectively referred to as the "Debenture Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall register the
Debentures and the transfers of Debentures as in this Article provided and which
at all reasonable times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Debentures and transfer of Debentures
as herein provided shall be appointed by the Company (the "Debenture
Registrar"). The initial Debenture Registrar shall be the Trustee.
Upon surrender for transfer of any Debenture at the office or agency of the
Company in a Place of Payment, the Company shall execute and the Trustee shall
authenticate and deliver, in the name of the transferee or transferees, one or
more new Debentures of the same series as the Debenture presented, of any
authorized denominations and of like tenor and aggregate principal amount.
All Debentures presented or surrendered for exchange or registration of
transfer, as provided in this Section, shall be accompanied (if so required by
the Company or the Debenture Registrar) by a written instrument or instruments
of transfer, in form satisfactory to the Company or the Debenture Registrar,
duly executed by the registered holder or by his duly authorized attorney in
writing.
(c) No service charge shall be made for any exchange or registration of
transfer of Debentures, or issue of new Debentures in case of partial redemption
of any series, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge in relation thereto, other than exchanges
pursuant to Section 2.06, the second paragraph of Section 3.03 and Section 9.04
not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or register
the transfer of any Debentures during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Debentures and ending at the close of business on the day of such mailing, nor
(ii) to register the transfer of or exchange any Debentures of any series or
portions
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thereof called for redemption. The provisions of this Section 2.05 are, with
respect to any Global Debenture, subject to Section 2.11 hereof.
Section 2.06. Temporary Debentures. Pending the preparation of definitive
Debentures of any series, the Company may execute, and the Trustee shall
authenticate and make available for delivery, temporary Debentures (printed,
lithographed or typewritten) of any authorized denomination, and substantially
in the form of the definitive Debentures in lieu of which they are issued, but
with such omissions, insertions and variations as may be appropriate for
temporary Debentures, all as may be determined by the Company. Every temporary
Debenture of any series shall be executed by the Company and be authenticated by
the Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Debentures of such series. Without
unnecessary delay the Company will execute and will furnish definitive
Debentures of such series and thereupon any or all temporary Debentures of such
series may be surrendered in exchange therefor (without charge to the holders),
at a Place of Payment, and upon receipt of a written order of the Company signed
by its President or any Vice President and its Treasurer or any Assistant
Treasurer, the Trustee shall authenticate and deliver in exchange for such
temporary Debentures an equal aggregate principal amount of definitive
Debentures of such series, unless the Company advises the Trustee to the effect
that definitive Debentures need not be executed and furnished until further
notice from the Company. Until so exchanged, the temporary Debentures of such
series shall be entitled to the same benefits under this Indenture as definitive
Debentures of such series authenticated and delivered hereunder.
Section 2.07. Mutilated, Destroyed, Lost or Stolen Debentures. In case any
temporary or definitive Debenture shall become mutilated or be destroyed, lost
or stolen, the Company (subject to the next succeeding sentence) shall execute,
and upon its written request the Trustee (subject as aforesaid) shall
authenticate and make available for delivery, a new Debenture of the same series
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated Debenture, or in lieu of and in substitution for the Debenture
so destroyed, lost or stolen. In every case the applicant for a substituted
Debenture shall furnish to the Company and to the Trustee such security or
indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of the applicant's Debenture and of the ownership
thereof. The Trustee may authenticate any such substituted Debenture and make
available for delivery the same upon the written request or authorization of any
officer of the Company. Upon the issuance of any substituted Debenture, 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.
In case any Debenture which has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a
substitute Debenture, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Debenture) if the applicant
for such payment shall furnish to the Company and to the Trustee such security
or indemnity as they may require to save them harmless, and, in case of
destruction, loss or theft, evidence to the
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satisfaction of the Company and the Trustee of the destruction, loss or theft of
such Debenture and of the ownership thereof.
Every Debenture issued pursuant to the provisions of this Section in
substitution for any Debenture which is mutilated, destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether or
not the mutilated, destroyed, lost or stolen Debenture shall be found at any
time, or be enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Debentures of
the same series duly issued hereunder. All Debentures shall be held and owned
upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Debentures, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
Section 2.08. Cancellation of Surrendered Debentures. All Debentures
surrendered for the purpose of payment, redemption, exchange or registration of
transfer shall, if surrendered to the Company or any paying agent, be delivered
to the Trustee for cancellation, or, if surrendered to the Trustee, shall be
cancelled by it, and no Debentures shall be issued in lieu thereof except as
expressly required or permitted by any of the provisions of this Indenture. On
written request of the Company, the Trustee shall deliver to the Company
cancelled Debentures held by the Trustee. If the Company shall otherwise acquire
any of the Debentures, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Debentures
unless and until the same are delivered to the Trustee for cancellation.
Section 2.09. Provisions of Indenture and Debentures for Sole Benefit of
Parties and Debentureholders. Nothing in this Indenture or in the Debentures,
express or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and the holders of the Debentures,
any legal or equitable right, remedy or claim under or in respect of this
Indenture, or under any covenant, condition or provision herein contained; all
such covenants, conditions and provisions being for the sole benefit of the
parties hereto and of the holders of the Debentures.
Section 2.10. Appointment of Authenticating Agent. So long as any of the
Debentures of any series remain outstanding there may be an Authenticating Agent
for any or all such series of Debentures which the Trustee shall have the right
to appoint. Said Authenticating Agent shall be authorized to act on behalf of
the Trustee to authenticate Debentures of such series issued upon exchange,
transfer or partial redemption thereof, and Debentures 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. All references in
this Indenture to the authentication of Debentures by the Trustee shall be
deemed to include authentication by an Authenticating Agent for such series
except for authentication upon original issuance or pursuant to Section 2.07
hereof. Each Authenticating Agent shall be acceptable to the Company and shall
be a corporation which has a combined capital and surplus, as most recently
reported or determined by it, sufficient under the laws of any
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jurisdiction under which it is organized or in which it is doing business to
conduct a trust business, and which is otherwise authorized under such laws to
conduct such business and is subject to supervision or examination by Federal or
State authorities. If at any time any Authenticating Agent shall cease to be
eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time (and
upon request by the Company shall) terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent and
to the Company. Upon resignation, termination or cessation of eligibility of
any Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested with
all the rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto.
Section 2.11. Global Debentures. (a) If the Company shall establish
pursuant to Section 2.01 that the Debentures of a particular series are to be
issued as one or more Global Debentures, then the Company shall execute and the
Trustee shall, in accordance with Section 2.04, authenticate and deliver, one or
more Global Debentures which (i) shall represent, and shall be denominated in an
aggregate amount equal to the aggregate principal amount of, all of the
Outstanding Debentures of such series, (ii) shall be registered in the name of
the Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear,
subject to Section 2.01(12), a legend substantially to the following effect:
"Except as otherwise provided in Section 2.11 of the Indenture, this Debenture
may be transferred, in whole but not in part, only to another nominee of the
Depositary or to a successor Depositary or to a nominee of such successor
Depositary."
(b) Notwithstanding the provisions of Section 2.05, the Global Debenture of
a series may be transferred, in whole but not in part and in the manner provided
in Section 2.05, only to another nominee of the Depositary for such series, or
to a successor Depositary for such series selected or approved by the Company or
to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of Debentures notifies the
Company that it is unwilling or unable to continue as Depositary for such series
or if at any time the Depositary for such series shall no longer be registered
or in good standing under the Exchange Act, or other applicable statute or
regulation and a successor Depositary for such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, as the case may be, this Section 2.11 shall no longer be
applicable to the Debentures of such series and the Company will execute, and
subject to Section 2.05, the Trustee will authenticate and make available for
delivery Debentures of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Debentures of such series in exchange for
such Global Debentures. In addition, the Company may at any time determine that
the Debentures of any series shall no longer be represented by one or more
Global Debentures and that the provisions of this Section 2.11 shall
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no longer apply to the Debentures of such series. In such event the Company will
execute and subject to Section 2.05, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate and
deliver Debentures of such series in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debentures of such series in exchange for such
Global Debentures. Upon the exchange of the Global Debentures for Debentures in
definitive registered form without coupons, in authorized denominations, the
Global Debentures shall be cancelled by the Trustee. Such Debentures in
definitive registered form issued in exchange for Global Debentures pursuant to
this Section 2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debentures to the Depositary for delivery to the persons in
whose name such Debentures are so registered.
(d) Debentures distributed to holders of Global Certificates (as defined in
the applicable Declaration of Trust) upon the dissolution of the applicable HI
Trust shall be distributed in the form of one or more Global Debentures
registered in the name of the Depositary or its nominee, and deposited with the
Debenture Registrar, as custodian for the Depositary, or with such Depositary,
for credit by the Depositary to the respective accounts of the beneficial owners
of the Debentures represented thereby (or such other accounts as they may
direct). Debentures distributed to holders of Certificates (as defined in the
applicable Declaration of Trust), other than Global Certificates, upon the
dissolution of the applicable HI Trust shall not be issued in the form of a
Global Debenture or any other form intended to facilitate book-entry trading in
beneficial interests in such Debentures.
(e) The Depositary or its nominee, as the registered owner of a Global
Debenture, shall be the holder of such Global Debenture for all purposes under
this Indenture and the Debentures, and owners of beneficial interests in a
Global Debenture shall hold such interests pursuant to the applicable procedures
of the Depositary. Accordingly, any such owner's beneficial interest in a
Global Debenture shall be shown only on, and the transfer of such interest shall
be effected only through, records maintained by the Depositary or its nominee or
its participants. None of the Company, the Trustee or the Debenture Registrar
shall have any liability in respect of any transfer effected by the Depositary.
(f) The rights of owners of beneficial interests in a Global Debenture
shall be exercised only through the Depositary and shall be limited to those
established by law and agreements between such owners and the Depositary and/or
its participants.
Section 2.12. CUSIP Numbers. The Company in issuing the Debentures may use
"CUSIP" numbers, and the Trustee shall use such CUSIP numbers in notices of
redemption or exchange as a convenience to Debentureholders and no
representation shall be made as to the correctness of such numbers either as
printed on the Debentures or as contained in any notice of redemption or
exchange. The Company shall promptly notify the Trustee of any change in the
CUSIP numbers of the Debentures.
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ARTICLE 3
Redemption of Debentures and Sinking Fund Provisions
Section 3.01. Redemption. The Company may redeem the Debentures of any
series issued hereunder on and after the dates and in accordance with the terms
established for such series pursuant to Section 2.01 hereof.
Section 3.02. Notice of Redemption. (a) In case the Company shall desire
to exercise such right to redeem all or, as the case may be, a portion of the
Debentures of any series in accordance with the right reserved so to do, it
shall give notice of such redemption to the Trustee. The Trustee shall then
notify holders of the Debentures of such series who are to be redeemed by
mailing, first class postage prepaid, by a notice of such redemption not less
than 30 days and not more than 60 days before the date fixed for redemption of
that series to such holders at their last addresses as they shall appear upon
the Debenture Register. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly to give such
notice to the holder of any Debenture of any series designated for redemption in
whole or in part, or any defect in the notice, shall not affect the validity of
the proceedings for the redemption of any other Debentures of such series or any
other series. In the case of any redemption of Debentures prior to the
expiration of any restriction on such redemption provided in the terms of such
Debentures or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall identify the Debentures to be redeemed
(including CUSIP number) and shall specify: (i) the date fixed for redemption,
(ii) the redemption price at which Debentures of that series are to be redeemed,
(iii) the place or places where Debentures are to be surrendered for payment of
the redemption price, (iv) that payment of the redemption price will be made
upon presentation and surrender of such Debentures, at such place or places, (v)
that interest accrued to the date fixed for redemption will be paid as specified
in said notice, (vi) that from and after said date interest will cease to accrue
and (vii) that the redemption is for a sinking fund, if such is the case. If
less than all the Debentures of a series are to be redeemed, the notice to the
holders of Debentures of that series to be redeemed in whole or in part shall
specify the particular Debentures to be so redeemed. In case any Debenture is to
be redeemed in part only, the notice which relates to such Debenture shall state
the portion of the principal amount thereof to be redeemed, and shall state that
on and after the redemption date, upon surrender of such Debenture, a new
Debenture or Debentures of such series in principal amount equal to the
unredeemed portion thereof will be issued.
(b) In the event of a partial redemption of a series of Debentures, the
Company shall give the Trustee at least 45 days' notice in advance of the date
fixed for redemption as to the aggregate principal amount of Debentures of the
series to be redeemed and the other information set forth in the immediately
preceding paragraph, and thereupon the Trustee shall select, by lot or in such
other manner as it shall deem appropriate and fair in its discretion and which
may provide for the selection
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of a portion or portions (equal to $25 or any integral multiple thereof) of the
principal amount of such Debentures of a denomination larger than $25, the
Debentures to be redeemed and shall thereafter promptly notify the Company in
writing of the numbers of the Debentures to be redeemed, in whole or in part.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Debentures shall relate, in the case of
any Debenture redeemed or to be redeemed only in part, to the portion of the
principal amount of such Debenture which has been or is to be redeemed. If the
Company shall so direct, Debentures registered in the name of the Company, any
Affiliate or any Subsidiary thereof shall not be included in the Debentures
selected for redemption.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its President or any Vice President,
instruct the Trustee or any paying agent to call all or any part of the
Debentures of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as the Trustee or such paying agent may deem
advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as the
case may be, such Debenture Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or such
paying agent to give any notice by mail that may be required under the
provisions of this Section.
Section 3.03. Payment Upon Redemption. (a) If the giving of notice of
redemption shall have been completed as above provided and funds deposited as
required, the Debentures or portions of Debentures of the series to be redeemed
specified in such notice shall become due and payable on the date and at the
place stated in such notice at the applicable redemption price, together with
interest accrued to the date fixed for redemption, and interest on such
Debentures or portions of Debentures shall cease to accrue on and after the date
fixed for redemption, unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such Debenture or
portion thereof. On presentation and surrender of such Debentures on or after
the date fixed for redemption at the place of payment specified in the notice,
said Debentures shall be paid and redeemed at the applicable redemption price
for such series, together with interest accrued thereon to, but excluding, the
date fixed for redemption (but if the date fixed for redemption is an interest
payment date, the interest installment payable on such date shall be payable to
the registered holder at the close of business on the applicable record date
pursuant to Section 2.03).
(b) Upon presentation of any Debenture of such series which is to be
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Debenture is presented shall
make available for delivery to the holder thereof, at the expense of the
Company, a new Debenture or Debentures of the same series, of authorized
denominations in principal amount equal to the unredeemed portion of the
Debenture so presented.
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Section 3.04. Sinking Funds for Debentures. The provisions of Sections
3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement
of Debentures of a series, except as otherwise specified as contemplated by
Section 2.01 for Debentures of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Debentures 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 Debentures of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Debentures for any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the redemption
of Debentures of any series as provided for by the terms of Debentures of such
series.
Section 3.05. Satisfaction of Sinking Fund Payments With Debentures. The
Company (i) may deliver outstanding Debentures of a series (other than any
previously called for redemption) and (ii) may apply as a credit Debentures of a
series which have been redeemed either at the election of the Company pursuant
to the terms of such Debentures or through the application of permitted optional
sinking fund payments pursuant to the terms of such Debentures, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Debentures of such series required to be made pursuant to the terms of such
Debentures as provided for by the terms of such series; provided that such
Debentures have not been previously so credited. Such Debentures shall be
received and credited for such purpose by the Trustee at the redemption price
specified in such Debentures for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 3.06. Redemption of Debentures for Sinking Fund. Not less than 45
days prior to each sinking fund payment date for any series of Debentures, the
Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms for that series, the portion thereof, if any, which is to be satisfied by
delivering and crediting Debentures of that series pursuant to Section 3.05 and
the basis for such credit and will, together with such Officers' Certificate,
deliver to the Trustee any Debentures to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Debentures to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.02 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 3.02. Such notice having been duly given, the redemption of such
Debentures shall be made upon the terms and in the manner stated in Section
3.03.
ARTICLE 4
Particular Covenants of the Company
The Company covenants and agrees for each series of the Debentures as follows:
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Section 4.01. Payment of Principal of (and Premium, if any) and Interest
on Debentures. The Company will duly and punctually pay or cause to be paid the
principal of (and premium, if any) and interest on the Debentures of that series
at the time and place and in the manner provided herein and established with
respect to such Debentures.
Section 4.02. Maintenance of Office or Agent for Payment of Debentures,
Designation of Office or Agency for Payment, Registration, Transfer and Exchange
of Debentures. So long as any series of the Debentures remain outstanding, the
Company agrees to maintain an office or agency in each Place of Payment, with
respect to each such series and at such other location or locations as may be
designated as provided in this Section 4.02, where (i) Debentures of that series
may be presented for payment, (ii) Debentures of that series may be presented as
hereinabove authorized for registration of transfer and exchange, and (iii)
notices and demands to or upon the Company in respect of the Debentures of that
series and this Indenture may be given or served, such designation to continue
with respect to such office or agency until the Company shall, by written notice
signed by its President or a Vice President and delivered to the Trustee,
designate some other office or agency for such purposes or any of them. 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, 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, notices and demands.
Section 4.03. Duties of Paying Agent; Company as Payment Agent; and
Holding Sums In Trust. (a) If the Company shall appoint one or more paying
agents for all or any series of the Debentures, other than the Trustee, the
Company will cause each such paying agency to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) or interest on the
Debentures of that series (whether such sums have been paid to it by
the Company or by any other obligor of such Debentures) in trust for
the benefit of the persons entitled thereto;
(2) that it will give the Trustee written notice of any failure by the
Company (or by any other obligor of such Debentures) to make any
payment of the principal of (and premium, if any) or interest on the
Debentures of that series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such paying agent; and
(4) that it will perform all other duties of paying agent as set forth
in this Indenture.
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(b) If the Company shall act as its own paying agent with respect to any
series of the Debentures, it will on or before each due date of the principal of
(and premium, if any) or interest on Debentures of that series, set aside,
segregate and hold in trust for the benefit of the persons entitled thereto a
sum sufficient to pay such principal (and premium, if any) or interest so
becoming due on Debentures of that series until such sums shall be paid to such
persons or otherwise disposed of as herein provided and will promptly notify in
writing the Trustee of such action, or any failure (by it or any other obligor
on such Debentures) to take such action. Whenever the Company shall have one or
more paying agents for any series of Debentures, it will, prior to 11:00 a.m.
New York City time on each due date of the principal of (and premium, if any) or
interest on any Debentures of that series, deposit with the paying agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the persons entitled to
such principal, premium or interest, and (unless such paying agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
(c) Anything in this Section to the contrary notwithstanding, (i) the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.05, and (ii) 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 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 terms and conditions 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.
Section 4.04. Appointment to Fill Vacancy in Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 7.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
ARTICLE 5
Debentureholders Lists and Reports by the Company and the Trustee
Section 5.01. Company to Furnish Trustee Information as to Names and
Addresses of Debentureholders. The Company will furnish or cause to be furnished
to the Trustee (a) on each regular record date (as defined in Section 2.03) a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the holders of each series of Debentures as of such regular record
date, provided, that the Company shall not be obligated to furnish or cause to
be furnished such list at any time that the list shall not differ in any respect
from the most recent list furnished to the Trustee by the Company 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, no such list need be furnished for any series for which the
Trustee shall be the Debenture Registrar.
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Section 5.02. Trustee to Preserve Information as to Names and Addresses of
Debentureholders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of Debentures contained in the most recent list furnished to it as
provided in Section 5.01 and as to the names and addresses of holders of
Debentures received by the Trustee in its capacity as Debenture Registrar (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in Section
5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Debentures of a series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Debenture for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other holders
of Debentures of such series or holders of all Debentures with respect to their
rights under this Indenture or under such Debentures, and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall within five Business Days after the receipt
of such application, at its election, either:
(1) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 5.02; or
(2) inform such applicants as to the approximate number of holders of
Debentures of such series or of all Debentures, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this
Section 5.02, and as to the approximate cost of mailing to such
Debentureholders the form of proxy or other communication, if any,
specified in such application.
(d) If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each holder of such series or of all Debentures, as the case may be,
whose name and address appears in the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this Section
5.02, a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the Securities and Exchange
Commission (the "Commission"), together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of the Trustee,
such mailing would be contrary to the best interests of the holders of
Debentures of such series or of all Debentures, as the case may be, or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the
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written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Debentureholders with reasonable promptness after the entry of such order and
the renewal of such tender; otherwise, the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(e) Each and every holder of the Debentures, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any paying agent nor any Debenture Registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the holders of Debentures in accordance with the provisions of
subsection (c) of this Section 5.02, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under said subsection
(c).
Section 5.03. Annual and Other Reports to Be Filed by Company With the
Trustee. (a) The Company covenants and agrees to 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 such sections, then to file with the
Trustee and the Commission in accordance with the 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. Delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein,
including the Company's compliance with any of its covenants hereunder (as to
which the Trustee is entitled to rely exclusively on Officers' Certificates).
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the 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 provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable over-night delivery service which provides for
evidence of receipt, to the Debentureholders, as their names and addresses
appear upon the Debenture Register, within 30 days after the filing thereof with
the Trustee, such summaries of any information, documents and reports
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required to be filed by the Company pursuant to subsections (a) and (b) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission.
(d) The Company covenants and agrees to furnish to the Trustee, on or
before May 15 in each calendar year in which any of the Debentures are
outstanding, or on or before such other day in each calendar year as the Company
and the Trustee may from time to time agree upon, a Certificate as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture. For purposes of this subsection (d), such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
(e) The Company shall deliver to the Trustee, as soon as possible and in
any event within five days after the Company becomes aware of the occurrence of
any Event of Default, an Officers' Certificate setting forth the details of such
Event of Default and the action which the Company proposes to take with respect
thereto.
Section 5.04. Trustee to Transmit Annual Report to Debentureholders. (a)
The Trustee shall transmit to Debentureholders 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. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
60 days after each January 15 following the date of this Indenture, commencing
January 15, 2000, deliver to Debentureholders a brief report, dated as of such
January 15, which complies with the provisions of such Section 313(a).
(b) The Trustee shall comply with Section 313(b) and 313(c) of the Trust
Indenture Act.
(c) A copy of each such report shall, at the time of such transmission to
Debentureholders, be filed by the Trustee with the Company, with each stock
exchange upon which any Debentures are listed (if so listed) and also with the
Commission. The Company agrees to notify the Trustee when any Debentures become
listed on any stock exchange and of any delisting thereof.
ARTICLE 6
Remedies of the Trustee and Debentureholders on Event of Default
Section 6.01. Events of Default Defined. (a) Whenever used herein with
respect to Debentures of a particular series, "Event of Default" means any one
or more of the following events which has occurred and is continuing:
(1) default in the payment of any installment of interest upon any of
the Debentures of that series, as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; provided,
however, that a valid extension of an interest payment period by the
Company in accordance with the
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terms of any indenture supplemental hereto, shall not constitute a
default in the payment of interest for this purpose;
(2) default (i) in the payment of the principal of (and premium, if
any, on) any of the Debentures of that series as and when the same
shall become due and payable whether at maturity, upon redemption, by
declaring or otherwise, or (ii) in any payment required by any sinking
or analogous fund established with respect to that series, and in the
case of this clause (ii) only, continuance of such default for a
period of 30 days;
(3) failure on the part of the Company duly to observe or perform, in
any material respect, any other of the covenants or agreements on the
part of the Company with respect to that series contained in such
Debentures or otherwise established with respect to that series of
Debentures pursuant to Section 2.01 hereof or contained in this
Indenture (other than a covenant or agreement which has been expressly
included in this Indenture solely for the benefit of one or more
series of Debentures other than such series) for a period of 90 days
after the date on which written notice of such failure, requiring the
same to be remedied and stating that such notice is a "Notice of
Default" hereunder, shall have been given to the Company by the
Trustee, by registered or certified mail, or to the Company and the
Trustee by the holders of at least 25% in principal amount of the
Debentures of that series at the time Outstanding;
(4) a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Company as bankrupt or
insolvent, or approving as properly filed a petition seeking
liquidation or reorganization of the Company under the Federal
Bankruptcy Code or any other similar applicable Federal or State law,
and such decree or order shall have continued unvacated and unstayed
for a period of 90 days; or an involuntary case shall be commenced
under such Code in respect of the Company and shall continue
undismissed for a period of 90 days or an order for relief in such
case shall have been entered; or a decree or order of a court having
jurisdiction in the premises shall have been entered for the
appointment on the ground of insolvency or bankruptcy of a receiver or
custodian or liquidator or trustee or assignee in bankruptcy or
insolvency of the Company or of its property, or for the winding up or
liquidation of its affairs, and such decree or order shall have
remained in force unvacated and unstayed for a period of 90 days;
(5) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking liquidation or reorganization under the Federal Bankruptcy
Code or any other similar applicable Federal or State law, or shall
consent to the filing of any such petition, or shall consent to the
appointment on the ground of insolvency or bankruptcy of a receiver or
custodian or liquidator or
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trustee or assignee in bankruptcy or insolvency of it or of its
property, or shall make an assignment for the benefit of creditors; or
(6) any other Event of Default provided with respect to Debentures of
that series.
(b) In each and every such case, unless the principal of all the Debentures
of that series shall have already become due and payable, either the Trustee or
the holders of not less than 25% in aggregate principal amount of the Debentures
of that series then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by such Debentureholders), may declare the
principal of all the Debentures of that series to be due and payable immediately
and upon any such declaration the same shall become and shall be immediately due
and payable, anything contained in this Indenture or in the Debentures of that
series or established with respect to that series pursuant to Section 2.01
hereof to the contrary notwithstanding. Payment of principal and interest on
such Debentures shall remain subordinated to the extent provided in Article 14
notwithstanding that such amount shall become immediately due and payable as
herein provided.
(c) Section 6.01(b), however, is subject to the condition that if, at any
time after the principal of the Debentures of that series shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Debentures of that series and the
principal of (and premium, if any, on) any and all Debentures of that series
which shall have become due otherwise than by acceleration (with interest upon
such principal and premium if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest, at the
rate per annum expressed in the Debentures of that series to the date of such
payment or deposit) and the amount payable to the Trustee under Section 7.06,
and any and all defaults under the Indenture, other than the nonpayment of
principal on Debentures of that series which shall not have become due by their
terms, shall have been remedied or waived as provided in Section 6.06 then and
in every such case the holders of a majority in aggregate principal amount of
the Debentures of that series then outstanding (subject to, in the case of any
series of Debentures held as trust assets of an HI Trust and with respect to
which a Security Exchange has not theretofore occurred, such consent of the
holders of the Preferred Securities and the Common Securities of such HI Trust
as may be required under the Declaration of Trust of such HI Trust), by written
notice to the Company and to the Trustee, may rescind and annul such declaration
and its consequences with respect to that series of Debentures; but no such
rescission and annulment shall extend to or shall affect any subsequent default,
or shall impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with
respect to Debentures of that series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined adversely to the
Trustee, then and in every such case the Company and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and
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powers of the Company and the Trustee shall continue as though no such
proceedings had been taken.
(e) If, prior to a Security Exchange with respect to the Debentures of any
series, a Default with respect to the Debentures of such series shall have
occurred, the Company expressly acknowledges that under the circumstances set
forth in the applicable Declaration of Trust, any holder of Preferred Securities
of the applicable HI Trust may, to the fullest extent permitted by law, enforce
directly against the Company the applicable Property Trustee's rights hereunder.
In furtherance of the foregoing and for the avoidance of any doubt, the Company
acknowledges that, under the circumstances described in the applicable
Declaration of Trust, any such holder of Preferred Securities, in its own name,
in the name of the applicable HI Trust or in the name of the holders of the
Preferred Securities issued by such HI Trust, may institute or cause to be
instituted a proceeding, including, without limitation, any suit in equity, an
action at law or other judicial or administrative proceeding, to enforce the
applicable Property Trustee's rights hereunder directly against the Company as
issuer of the applicable series of Debentures, and may prosecute such proceeding
to judgment or final decree, and enforce the same against the Company.
Section 6.02. Covenant of Company to Pay to Trustee Whole Amount Due on
Debentures on Default in Payment of Interest or Principal (and Premiums, if
any). (a) The Company covenants that (1) in case default shall be made in the
payment of any installment of interest on any of the Debentures of a series, or
any payment required by any sinking or analogous fund established with respect
to that series as and when the same shall have become due and payable, and such
default shall have continued for a period of 30 days, or (2) in case default
shall be made in the payment of the principal of (or premium, if any, on) any of
the Debentures of a series when the same shall have become due and payable,
whether upon maturity of the Debentures of a series or upon redemption or upon
declaration or otherwise, then, upon demand of the Trustee, the Company will pay
to the Trustee, for the benefit of the holders of the Debentures of that series,
the whole amount that then shall have become due and payable on all such
Debentures for principal (and premium, if any) or interest, or both, as the case
may be, with interest upon the overdue principal (and premium, if any) and (to
the extent that payment of such interest is enforceable under applicable law and
without duplication of any other amounts paid by the Company or the applicable
HI Trust in respect thereof) upon overdue installments of interest at the rate
per annum expressed in the Debentures of that series; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, and the amount payable to the Trustee under Section 7.06.
(b) In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the
Debentures of that series and collect in the manner provided by law out of the
property of the Company or other obligor upon the Debentures of that series
wherever situated the moneys adjudged or decreed to be payable.
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(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or other judicial
proceedings affecting the Company, any other obligor on such Debentures, or the
creditors or property of either, the Trustee shall have the power to intervene
in such proceedings and take any action therein that may be permitted by the
court and shall (except as may be otherwise provided by law) be entitled to file
such proofs of claim and other papers and documents as may be necessary or
advisable in order to have the claims of the Trustee and of the holders of
Debentures of such series allowed for the entire amount due and payable by the
Company or such other obligor under the Indenture at the date of institution of
such proceedings and for any additional amount which may become due and payable
by the Company or such other obligor after such date, and to collect and receive
any moneys or other property payable or deliverable on any such claim, and to
distribute the same after the deduction of the amount payable to the Trustee
under Section 7.06; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of Debentures of such
series to make such payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to such Debentureholders,
to pay to the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this Indenture, or
under any of the terms established with respect to Debentures of that series,
may be enforced by the Trustee without the possession of any of such Debentures,
or the production thereof at any trial or other proceeding relative thereto, and
any such suit or 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 payment to the Trustee of any amounts due under Section
7.06, be for the ratable benefit of the holders of the Debentures of such
series.
In case of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Debentureholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Debentures of that series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Debentureholder in any such
proceeding.
Section 6.03. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to this Article with respect to a particular
series of Debentures shall be applied in the order following, at the date or
dates fixed by the Trustee and, in case of the distribution of such moneys on
account of principal (or premium, if any) or interest, upon presentation of the
several
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Debentures of that series, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of all Senior Debt of the Company if and to
the extent required by Article 14;
THIRD: To the payment of the amounts then due and unpaid upon
Debentures of such series for principal (and premium, if any) and
interest 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 Debentures for
principal (and premium, if any) and interest, respectively; and
FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
Section 6.04. Limitation on Suits by Holders of Debentures. No holder of
any Debenture of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(i) such holder previously shall have given to the Trustee written notice of an
Event of Default and of the continuance thereof with respect to Debentures of
such series specifying such Event of Default, as hereinbefore provided, (ii) the
holders of not less than 25% in aggregate principal amount of the Debentures of
such series then outstanding shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as trustee hereunder,
(iii) shall have offered to the Trustee indemnity satisfactory to it against the
costs, expenses and liabilities to be incurred therein or thereby, (iv) the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action, suit or proceeding;
and (v) during such 60 day period, the holders of a majority in principal amount
of the Debentures of that series do not give the Trustee a direction
inconsistent with the request; it being understood and intended, and being
expressly covenanted by the taker and holder of every Debenture of such series
with every other such taker and holder and Trustee, that no one or more holders
of Debentures of such series shall have any right in any manner whatsoever by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Debentures, or to
obtain or seek to obtain priority over or preference to any other such holder,
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all holders of
Debentures of such series. For the protection and enforcement of the provisions
of this Section, each and every Debentureholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
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Notwithstanding any other provisions of this Indenture, however, the right
of any holder of any Debenture to receive payment of the principal of (and
premium, if any) and interest on such Debenture, as therein provided, on or
after the respective due dates expressed in such Debenture (or in the case of
redemption, on the redemption date), or to institute suit for the enforcement of
any such payment on or after such respective dates or redemption date, shall not
be impaired or affected without the consent of such holder.
Section 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights
Not Waiver of Default.
(a) All powers and remedies given by this Article 6 to the Trustee or to
the Debentureholders shall, to the extent permitted by law, be deemed cumulative
and not exclusive of any others thereof or of any other powers and remedies
available to the Trustee or the holders of the Debentures, by judicial
proceedings or otherwise, to enforce performance or observance of the covenants
and agreements contained in this Indenture or otherwise established with respect
to such Debentures.
(b) No delay or omission of the Trustee or of any holder of any of the
Debentures to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article or by law to the Trustee or to the Debentureholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Debentureholders.
Section 6.06. Rights of Holders of Majority in Principal Amount of
Debentures to Direct Trustee and to Waive Defaults. The holders of a majority in
aggregate principal amount of the Debentures of any series at the time
Outstanding, determined in accordance with Section 8.04 (with, in the case of
any series of Debentures held as trust assets of an HI Trust and with respect to
which a Security Exchange has not theretofore occurred, such consent of holders
of the Preferred Securities and the Common Securities of such HI Trust as may be
required under the Declaration of Trust of such HI Trust), 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 such series; provided, however, that such direction
shall not be in conflict with any rule of law or with this Indenture or unduly
prejudicial to the rights of holders of Debentures of any other series at the
time Outstanding determined in accordance with Section 8.04 not parties thereto.
Subject to the provisions of Section 7.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall, by a
Responsible Officer or Officers of the Trustee, determine that the proceeding so
directed would involve the Trustee in personal liability. The holders of a
majority in aggregate principal amount of the Debentures of any series at the
time Outstanding affected thereby, determined in accordance with section 8.04
(with, in the case of any series of Debentures held as trust assets of an HI
Trust and with respect to which a Security Exchange has not theretofore
occurred, such consent of holders of the Preferred Securities
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and the Common Securities of such HI Trust as may be required under the
Declaration of Trust of such HI Trust), may on behalf of the holders of all of
the Debentures of such series waive any past default in the performance of any
of the covenants contained herein or established pursuant to Section 2.01 with
respect to such series and its consequences, except a default in the payment of
the principal of, or premium, if any, or interest on, any of the Debentures of
that series as and when the same shall become due by the terms of such
Debentures otherwise than by acceleration (unless such default has been cured
and a sum sufficient to pay all matured installments of interest and principal
and any premium has been deposited with the Trustee (in accordance with Section
6.01(c)), or a call for redemption of Debentures of that series. Upon any such
waiver, the default covered thereby shall be deemed to be cured for all purposes
of this Indenture and the Company, the Trustee and the holders of the Debentures
of such series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
Section 6.07. Trustee to Give Notice of Defaults Known To It, But May
Withhold in Certain Circumstances. The Trustee shall, within 90 days after the
occurrence of a default with respect to a particular series, transmit by mail,
first class postage prepaid, to the holders of Debentures of that series, as
their names and addresses appear upon the Debenture Register, notice of all
defaults with respect to that series known to the Trustee, unless such defaults
shall have been cured before the giving of such notice (the term "defaults" for
the purposes of this Section being hereby defined to be the events specified in
subsections (1), (2), (3), (4) and (5) of Section 6.01(a), not including any
periods of grace provided for therein and irrespective of the giving of notice
provided for by subsection (3) of Section 6.01(a)); provided, that, except in
the case of default in the payment of the principal of (or premium, if any) or
interest on any of the Debentures of that series or in the payment of any
sinking fund installment established with respect to that series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors and/or
Responsible Officers, of the Trustee in good faith determine that the
withholding of such notice is in the interests of the holders of Debentures of
that series; provided further, that in the case of any default of the character
specified in Section 6.01(a)(3) with respect to Debentures of such series no
such notice to the holders of the Debentures of that series shall be given until
at least 30 days after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of any default, except
(i) a default under subsection (a)(1) or (a)(2) of Section 6.01 as long as the
Trustee is acting as paying agent for such series of Debentures or (ii) any
default as to which a Responsible Officer of the Trustee shall have received
written notice.
Section 6.08. Requirements of an Undertaking to Pay Costs in Certain Suits
Under Indenture or Against Trustee. All parties to this Indenture agree, and
each holder of any Debentures by his or her acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, 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 or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion
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assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Debentureholder, or group of
Debentureholders, holding more than 10% in aggregate principal amount of the
outstanding Debentures of any series, or to any suit instituted by any
Debentureholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Debenture of such series, on or after the
respective due dates expressed in such Debenture or established pursuant to this
Indenture.
ARTICLE 7
Concerning the Trustee
Section 7.01. Upon Event of Default Occurring and Continuing, Trustee
Shall Exercise Powers Vested In It, and Use Same Degree of Care and Skill In
Their Exercise, as Prudent Individual Would Use. (a) The Trustee, prior to the
occurrence of an Event of Default with respect to Debentures of a series and
after the curing of all Events of Default with respect to Debentures of that
series which may have occurred, shall undertake to perform with respect to
Debentures of such series such duties and only such duties as are specifically
set forth in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to
Debentures of a series has occurred (which has not been cured or waived), the
Trustee shall exercise with respect to Debentures of that series such of the
rights and powers vested in it by this Indenture, 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 Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect to
Debentures of a series and after the curing or waiving of all such
Events of Default with respect to that series which may have occurred:
(i) the duties and obligations of the Trustee shall with respect
to Debentures of such series be determined solely by the express
provisions of this Indenture and the Trust Indenture Act and the
Trustee shall not be liable with respect to Debentures of such
series except for the performance of such duties and obligations
as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may with respect to Debentures of such series
conclusively
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rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they conform to
the requirements of this Indenture but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the 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 principal
amount of the Debentures of any series at the time outstanding
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture with respect to
the Debentures of that series;
(4) none of the provisions contained in this Indenture shall require
the 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 there is
reasonable ground for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably
assured to it; and
(5) 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 Article 7.
Section 7.02. Certain Rights of the Trustee. Except as otherwise provided
in Section 7.01:
(a) The Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, security or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
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(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board Resolution
or an instrument signed in the name of the Company by the President or
any Vice President and by the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer (unless other evidence in
respect thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken
or suffered or omitted hereunder in good faith and in reliance
thereon;
(d) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Debentureholders, pursuant to the
provisions of this Indenture, unless such Debentureholders shall have
offered to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities which may be incurred
therein or thereby; nothing herein contained shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of
Default with respect to a series of the Debentures (which has not been
cured or waived) to exercise with respect to Debentures of that series
such of the rights and powers vested in it by this Indenture, and to
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
such person's own affairs;
(e) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture; nothing herein contained shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of
Default with respect to a series of the Debentures (which has not been
cured or waived) to exercise with respect to Debentures of that series
such of the rights and powers vested in it by this Indenture, and to
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
such person's own affairs;
(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, consent, order,
approval, bond, security, or other papers or documents, unless
requested in writing so to do by the holders of not less than a
majority in principal amount of the outstanding Debentures of the
particular series affected thereby (determined as provided in Section
8.04); provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded
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to it by the terms of this Indenture, the Trustee may require
indemnity satisfactory to it against such costs, expenses or
liabilities as a condition to so proceeding. The reasonable expense of
every such examination shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand;
(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 rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee
in each of its capacities hereunder, and to each agent, custodian and
other Person employed to act hereunder.
Section 7.03. Trustee Not Liable for Recitals In Indenture or In
Debentures. (a) The recitals contained herein and in the Debentures (other than
the Certificate of Authentication on the Debentures) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same.
(b) The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or application by the
Company of any of the Debentures or of the proceeds of such Debentures, or for
the use or application of any moneys paid over by the Trustee in accordance with
any provision of this Indenture or established pursuant to Section 2.01, or for
the use or application of any moneys received by any paying agent other than the
Trustee.
Section 7.04. Trustee, Paying Agent or Debenture Registrar May Own
Debentures. The Trustee or any paying agent or Debenture Registrar, in its
individual or any other capacity, may become the owner or pledgee of Debentures
and, subject to Sections 7.08 and 7.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, paying agent or Debenture
Registrar.
Section 7.05. Moneys Received by Trustee to Be Held In Trust Without
Interest. Subject to the provisions of Section 11.05, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but 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 moneys received by it hereunder except such as it
may agree in writing to pay thereon.
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Section 7.06. Trustee Entitled to Compensation, Reimbursement and
Indemnity. (a) The Company covenants and agrees to pay to the Trustee from time
to time, and the Trustee shall be entitled to, such compensation as the Company
and the Trustee shall from time to time agree in writing (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) for all services rendered by it in the execution of the trusts
hereby created and in the exercise and performance of any of the powers and
duties hereunder of the Trustee, and the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Company also covenants to indemnify each of the
Trustee or any predecessor Trustee and their officers, agents, directors and
employees for, and to hold them harmless against, any and all loss, liability,
damage, claim or expense including taxes (other than taxes based upon, measured
by or determined by the income of the Trustee) incurred without negligence or
bad faith on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the reasonable costs
and expenses of defending itself against any claim (whether asserted by the
Company, any Debentureholder or any other Person) of liability in the premises.
The provisions of this Section 7.06 shall survive the termination of this
Indenture and resignation or removal of the Trustee.
(b) The obligations of the Company under this Section to compensate and
indemnify 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
Debentures 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
Debentures. When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 6.01(4) or Section 6.01(5), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
Section 7.07. Right of Trustee to Rely on Certificate of Officers of
Company Where No Other Evidence Specifically Prescribed. Except as otherwise
provided in Sections 7.01 and 7.02, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering or omitting
to take any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted to be taken by it under the provisions of this Indenture upon the faith
thereof.
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Section 7.08. Disqualification; Conflicting Interests. If the Trustee has
or shall acquire any "conflicting interest" within the meaning of Section 310(b)
of the Trust Indenture Act, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of said Section 310(b).
Section 7.09. Requirements for Eligibility of Trustee. There shall at all
times be a Trustee with respect to the Debentures issued hereunder which shall
at all times be a corporation or banking association 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 other
Person permitted to act as trustee by the Commission, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars, 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 aforesaid supervising or examining authority, then
for the purposes of this Section, 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. The Company may not, nor
may any person directly or indirectly controlling, controlled by, or under
common control with the Company, serve as a Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 7.10.
Section 7.10. Resignation of Trustee and Appointment of Successor.
(a) The Trustee or any successor hereafter appointed, may at any time
resign with respect to the Debentures of one or more series by giving written
notice thereof to the Company and by transmitting notice of resignation by mail,
first class postage prepaid, to the Debentureholders of such series, as their
names and addresses appear upon the Debenture Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee
with respect to Debentures of such series by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 60 days after the mailing of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
trustee with respect to Debentures of such series, or any Debentureholder of
that series who has been a bona fide holder of a Debenture or Debentures for at
least six months may, subject to the provisions of Section 6.08, on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.
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(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section
7.08 after written request therefor by the Company or by any
Debentureholder who has been a bona fide holder of a Debenture or
Debentures for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Debentureholder; or
(3) the Trustee shall become incapable of acting, or shall be adjudged
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, the
Company may remove the Trustee with respect to all Debentures and appoint a
successor trustee by written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted
appointment within 30 days after the mailing of such notice of removal, the
Trustee so removed may petition, at the expense of the Company, any court
of competent jurisdiction for the appointment of a successor trustee with
respect to Debentures of such series, or any Debentureholder of that series
who has been a bona fide holder of a Debenture or Debentures for at least
six months may, subject to the provisions of Section 6.08, on behalf of
himself and all others similarly situated, petition any such court for the
removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Debentures of any series at the time outstanding may at any time remove the
Trustee with respect to such series and appoint a successor trustee. If no
successor Trustee shall have been so appointed and have accepted appointment
within 60 days after the mailing of such notice of removal, the Trustee being
removed may petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Debentures of such series.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Debentures of a series pursuant to any of
the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Debentures of one or more series or all of such
series, and at any time there shall be only one Trustee with respect to the
Debentures of any particular series.
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Section 7.11. Acceptance by Successor to Trustee.
(a) In case of the appointment hereunder of a successor trustee with
respect to all Debentures, 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 Debentures of one or more (but not all) series, the Company, the
retiring Trustee and each successor trustee with respect to the Debentures of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which shall (1)
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 Debentures of that
or those series to which the appointment of such successor trustee relates, (2)
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 Debentures 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) 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 co-trustees of the
same trust, 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 that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; 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,
such retiring Trustee shall with respect to the Debentures of that or those
series to which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, 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 Debentures 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, to the extent contemplated by
such supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Debentures of that or those series to
which the appointment of such successor trustee relates.
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(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, power and trusts referred to in
paragraph (a) or (b) of this Section 7.11, as the case may be.
(d) No successor trustee shall accept its appointment unless at the time of
such acceptance such successor trustee shall be qualified and eligible under
this Article.
(e) Upon acceptance of appointment by a successor trustee as provided in
this Section 7.11, the successor trustee shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the
Debentureholders, as their names and addresses appear upon the Debenture
Register.
Section 7.12. Successor to Trustee by Merger, Consolidation or Succession
to Business. Any corporation or banking association 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 of
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, anything herein to the
contrary notwithstanding. In case any Debentures shall have been authenticated,
but not made available for delivery, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and make available for delivery the Debentures so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Debentures.
Section 7.13. Preferential Collection of Claims Against the Company. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship described in Section 311(b) of the Trust Indenture
Act. A Trustee who has resigned or been removed shall be subject to Section
311(a) of the Trust Indenture Act to the extent included therein as though such
resignation or removal, as the case may be, had not occurred.
ARTICLE 8
Concerning the Debentures
Section 8.01. Evidence of Action by Debentureholders. Whenever in this
Indenture it is provided that the holders of a majority or specified percentage
in aggregate principal amount of the Debentures of a particular series may take
any action (including the making of any demand or request, the giving of any
notice consent or waiver or the taking of any other action) the fact that at the
time of taking any such action the holders of such majority or specified
percentage of that series have joined therein may be evidenced by any instrument
or any number of instruments of similar tenor executed by such holders of
Debentures of that series in person or by agent or proxy appointed in writing.
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If the Company shall solicit from the Debentureholders of any series any
request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Debentureholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Debentureholders of record at the
close of business on the record date shall be deemed to be Debentureholders for
the purposes of determining whether Debentureholders of the requisite proportion
of Outstanding Debentures of that series have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Outstanding Debentures of that series
shall be computed as of the record date; provided that no such authorization,
agreement or consent by such Debentureholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
Section 8.02. Proof of Execution of Instruments and of Holding of
Debentures. Subject to the provisions of Sections 7.01 and 7.02, proof of the
execution of any instrument by a Debentureholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any person of
any of the Debentures shall be sufficient if made in the following manner;
(a) The fact and date of the execution by any such person of any
instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b) The ownership of Debentures shall be proved by the Debenture
Register of such Debentures or by a certificate of the Debenture Registrar
thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
Section 8.03. Who May Be Deemed Owners of Debentures. Prior to the due
presentment for registration of transfer of any Debenture, the Company, the
Trustee, any paying agent and any Debenture Registrar may deem and treat the
person in whose name such Debenture shall be registered upon the books of the
Company as the absolute owner of such Debenture (whether or not such Debenture
shall be overdue and notwithstanding any notice of ownership or writing thereon
made by anyone other than the Debenture Registrar) for the purpose of receiving
payment of or on account of the principal of, premium, if any, and (subject to
Section 2.03) interest on such Debenture and for all other purposes; and neither
the Company nor the Trustee nor any paying agent nor any Debenture Registrar
shall be affected by any notice to the contrary.
Section 8.04. Debentures Owned by the Company or Controlled or Controlling
Companies Disregarded for Certain Purposes. In determining whether the holders
of the requisite aggregate principal amount of Debentures of a particular series
have concurred in any direction, consent or
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waiver under this Indenture, Debentures of that series which are owned by the
Company or any other obligor on the Debentures of that series or by any
Subsidiary of the Company or of such other obligor on the Debentures of that
series shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Debentures of such series which a Responsible Officer of the Trustee
actually knows are so owned shall be so disregarded. Debentures so owned which
have been pledged in good faith may be regarded as outstanding for the purposes
of this Section, if the pledgee shall establish to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Debentures and that
the pledgee is not a person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any such other
obligor. In case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05. Instruments Executed by Debentureholders Bind Future
Holders. At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the holders of the
majority or percentage in aggregate principal amount of the Debentures of a
particular series specified in this Indenture in connection with such action,
any holder of a Debenture of that series which is shown by the evidence to be
included in the Debentures the holders of which have consented to such action
may, by filing written notice with the Trustee, and upon proof of holding as
provided in Section 8.02, revoke such action so far as concerns such Debenture.
Except as aforesaid any such action taken by the holder of any Debenture shall
be conclusive and binding upon such holder and upon all future holders and
owners of such Debenture, and of any Debenture issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Debenture. Any action taken
by the holders of the majority or percentage in aggregate principal amount of
the Debentures of a particular series specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the Trustee and
the holders of all the Debentures of that series.
ARTICLE 9
Supplemental Indentures
Section 9.01. Purposes for Which Supplemental Indenture May Be Entered
Into Without Consent of Debentureholders. In addition to any supplemental
indenture otherwise authorized by this Indenture, the Company and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as then in effect), without the consent of the Debentureholders,
for one or more of the following purposes:
(a) to evidence the succession of another corporation or other entity
to the Company, and the assumption by any such successor of the obligations
of the Company contained herein or otherwise established with respect to
the Debentures;
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(b) to add further covenants, restrictions, conditions or provisions
for the protection of the holders of the Debentures of all or any series as
the Board of Directors and the Trustee shall consider to be for the
protection of the holders of Debentures of all or any series, and to make
the occurrence, or the occurrence and continuance, of a default in any of
such additional covenants, restrictions, conditions or provisions a default
or an Event of Default with respect to such series permitting the
enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided, however, that in respect of any
such additional covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default or may limit the right of the holders of a majority in aggregate
principal amount of the Debentures of such series to waive such default;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture or to make such other provisions in regard to
matters or questions arising under this Indenture as shall not be
inconsistent with the provisions of this Indenture and shall not materially
adversely affect the interests of the holders of the Debentures of any
series;
(d) to add to, change or eliminate any of the provisions of this
Indenture, provided that any such addition, change or elimination shall
become effective only when there is no Debenture outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision;
(e) to provide for the issuance under this Indenture of Debentures in
coupon form (including Debentures registrable as to principal only) and to
provide for exchangeability of such Debentures with the Debentures issued
hereunder in fully registered form and to make all appropriate changes for
such purposes;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Debentures;
(g) to qualify or maintain qualification of this Indenture under the
Trust Indenture Act;
(h) to establish the form or terms of Debentures of any series as
permitted by Section 2.01; or
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(i) to make any addition, change or elimination of any provision of
this Indenture that does not adversely affect the rights of any
Debentureholder in any material respect.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
shall not be obligated to, but may in its discretion, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed by the Company and the Trustee without the consent of the holders of
any of the Debentures at the time outstanding, notwithstanding any of the
provisions of Section 9.02.
Section 9.02. Modification of Indenture with Consent of Debentureholders.
With the consent (evidenced as provided in Section 8.01) of the holders of not
less than a majority in aggregate principal amount of the Debentures of each
series affected by such supplemental indenture or indentures at the time
outstanding (and, in the case of any series of Debentures held as trust assets
of an HI Trust and with respect to which a Security Exchange has not theretofore
occurred, such consent of holders of the Preferred Securities and the Common
Securities of such HI Trust as may be required under the Declaration of Trust of
such HI Trust), the Company and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the holders of the Debentures of such
series under this Indenture; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of any Debentures of any series,
or reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable upon the redemption
thereof, without the consent of the holder of each Debenture so affected or (ii)
reduce the aforesaid percentage of Debentures, the holders of which are required
to consent to any such supplemental indenture, without the consent of the
holders of each Debenture (and, in the case of any series of Debentures held as
trust assets of an HI Trust and with respect to which a Security Exchange has
not theretofore occurred, such consent of the holders of the Preferred
Securities and the Common Securities of such HI Trust as may be required under
the Declaration of Trust of such HI Trust) then outstanding and affected
thereby.
Upon the request of the Company, and upon the filing with the Trustee of
evidence of the consent of Debentureholders (and, in the case of any series of
Debentures held as trust assets of an HI Trust and with respect to which a
Security Exchange has not theretofore occurred, such consent of holders of the
Preferred Securities and the Common Securities of such HI Trust as may be
required under the Declaration of Trust of such HI Trust) required to consent
thereto as aforesaid, the Trustee shall join with the Company in the execution
of such supplemental indenture unless such supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture
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or otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture.
It shall not be necessary for the consent of the Debentureholders of any
series affected thereby under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Debentureholders of all series affected thereby as their names and addresses
appear upon the Debenture Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
Section 9.03. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article or of Section
10.01, this Indenture shall, with respect to such series, be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holders of Debentures of the series affected
thereby shall thereafter be determined, exercised and enforced hereunder subject
in all respects to such modifications and amendments and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be part
of the terms and conditions of this Indenture for any and all purposes.
Section 9.04. Debentures May Bear Notation of Changes By Supplemental
Indentures. Debentures of any series, affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, may bear a
notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed or traded, as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Debentures of that series so modified as to conform, in the
opinion of the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the Debentures of
that series then outstanding.
Section 9.05. Opinion of Counsel. The Trustee, subject to the provisions
of Sections 7.01 and 7.02, may receive an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article 9.
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ARTICLE 10
Consolidation, Merger, Sale or Conveyance
Section 10.01. Company May Consolidate, etc. on Certain Terms. The Company
shall not consolidate with or merge into any other Person or convey, transfer or
lease its properties and assets substantially as an entirety to any other
Person, and the Company shall not permit any other Person to consolidate with or
merge into the Company, unless:
(a) either the Company shall be the continuing corporation, or
the corporation (if other than the Company) formed by such consolidation or
into which the Company is merged or to which the properties and assets of
the Company substantially as an entity are transferred or leased shall be a
corporation, limited liability company, partnership or trust organized and
existing under the laws of the United States of America or any state
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the obligations of the Company under
the Debentures and this Indenture; and
(b) immediately after giving effect to such transaction no Event
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing.
Section 10.02. Successor Corporation Substituted. The successor
corporation formed by such consolidation or into which the Company is merged or
to which such transfer or lease is made shall succeed to and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor corporation had been named as the Company
herein, and thereafter (except in the case of a lease to another Person) the
predecessor corporation shall be relieved of all obligations and covenants under
the Indenture and the Debentures and, in the event of such conveyance, or
transfer, any such predecessor corporation may be dissolved and liquidated.
Section 10.03. Opinion of Counsel. The Trustee, subject to the provisions
of Sections 7.01 and 7.02, may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance, transfer or
other disposition, and any such assumption, comply with the provisions of this
Article.
ARTICLE 11
Satisfaction and Discharge of Indenture; Unclaimed Moneys
Section 11.01. Satisfaction and Discharge of Indenture. (A) If at any time
(a) the Company shall have paid or caused to be paid the principal of, premium,
if any, and interest on all the Debentures of any series Outstanding hereunder
(other than Debentures of such series which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.07) as and when
the same shall have become due and payable, or (b) the Company shall have
delivered to the Trustee for cancellation all Debentures of any series
theretofore authenticated (other than any Debentures of such series which shall
have
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been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.07) or (c) (i) all the Debentures of any series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or by their terms will become due and payable within one year or are to
be called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and (ii) the Company shall have
irrevocably deposited or caused to be deposited with the Trustee as trust funds
the entire amount in cash (other than moneys repaid by the Trustee or any paying
agent to the Company in accordance with Section 11.04) or Government
Obligations, maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash, or 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 of, premium, if any, and interest on all
Debentures of such series on each date that such principal or interest is due
and payable 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 Debentures of such series; and if, in any such case, the Company shall
also pay or cause to be paid all other sums payable hereunder by the Company,
then this Indenture shall cease to be of further effect (except as to (i) rights
of registration of transfer and exchange of Debentures of such series and the
Company's right of optional redemption, if any, (ii) substitution of mutilated,
defaced, destroyed lost or stolen Debentures, (iii) rights of holders of
Debentures to receive payments of principal thereof and interest thereon, upon
the original stated due dates therefor (but not upon acceleration), and
remaining rights of the Debentureholders to receive mandatory sinking fund
payments, if any, (iv) the rights, obligations, duties and immunities of the
Trustee hereunder, (v) the rights of the holders of Debentures of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them and (vi) the obligations of the Company under
Section 4.02) and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense of
the Company, shall execute proper instruments acknowledging such satisfaction of
and discharging this Indenture; provided, that the rights of the
Debentureholders to receive amounts in respect of principal of, premium, if any,
and interest on the Debentures held by them shall not be delayed longer than
required by then-applicable mandatory rules or policies of any securities
exchange or automated quotation system upon which the Debentures are listed or
traded. The Company agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for
any services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Debentures of such series.
(B) The following provisions shall apply to the Debentures of each series
unless specifically otherwise provided in a Board Resolution or indenture
supplemental hereto provided pursuant to Section 2.01. In addition to discharge
of the Indenture pursuant to the next preceding paragraph, the Company shall be
deemed to have paid and discharged the entire indebtedness on all the Debentures
of a series on the date of the deposit referred to in subparagraph (a) below,
and the
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provisions of this Indenture with respect to the Debentures of such series shall
no longer be in effect (except as to (i) rights of registration of transfer and
exchange of Debentures of such series and the Company's right of optional
redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Debentures, (iii) rights of holders of Debentures to receive payments of
principal thereof and interest thereon, upon the original stated due dates
therefor (but not upon acceleration), and remaining rights of the holders of
Debentures to receive mandatory sinking fund payments, if any, (iv) the rights,
obligations, duties and immunities of the Trustee hereunder, (v) the rights of
the Holders of Debentures as beneficiaries hereof with respect to the property
so deposited with the Trustee payable to all or any of them and (vi) the
obligations of the Company under Section 4.02) and the Trustee, at the expense
of the Company, shall at the Company's request, execute proper instruments
acknowledging the same, if
(a) with reference to this provision the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as
trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the holders of the Debentures of
such series (i) cash in an amount, or (ii) Governmental 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 of,
premium, if any, and interest on all Debentures of such series on each
date that such principal or interest is due and payable 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 Debentures of such series;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Company is a party or by which it is bound;
(c) 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 Debentures of such series will
not recognize income, gain or loss for Federal income tax purposes as
a result of such deposit, defeasance and discharge 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,
defeasance and discharge had not occurred;
(d) the Company has delivered to the Trustee an Officers' 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; and
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(e) no event or condition shall exist that, pursuant to the provisions
of Section 14.02 or 14.03, would prevent the Company from making
payments of the principal of, premium, if any, or interest on the
Debentures of such series on the date of such deposit.
Section 11.02. Application by Trustee of Funds Deposited For Payment of
Debentures. Subject to Section 11.04, all moneys deposited with the Trustee (or
other trustee) pursuant to Section 11.01 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
Debentures 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.
Section 11.03. Repayment of Moneys Held by the Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Debentures
of any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Debentures shall, upon demand of
the Company, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
Section 11.04. Repayment of Moneys Held by the Trustee. Any moneys
deposited with or paid to the Trustee or any paying agent for the payment of the
principal of or interest on any Debenture of any series and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request of
the Company and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Company by the
Trustee for such series or such paying agent, and the Holder of the Debentures
of such series shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look only
to the Company for any payment which such holder may be entitled to collect, and
all liability of the Trustee or any paying agent with respect to such moneys
shall thereupon cease; provided, however, that the Trustee or such paying agent,
before being required to make any such repayment with respect to moneys
deposited with it for any payment series, shall at the expense of the Company,
mail by first-class mail to holders of such Debentures at their addresses as
they shall appear on the Debenture Register, notice, that such moneys remain and
that, after a date specified therein, which shall not be less than 30 days from
the date of such mailing or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 11.05. Indemnification Relating to Governmental Obligations. The
Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the Governmental Obligations deposited pursuant
to Section 11.01 or the principal or interest received in respect of such
obligations.
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ARTICLE 12
Immunity of Incorporators, Stockholders, Officers and Directors
Section 12.01. Incorporators, Stockholders, Officers and Directors of
Company Exempt From Individual Liability. No recourse under or upon any
obligation, covenant or agreement of this Indenture, or of any Debenture, or for
any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, past, present or future as
such, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, 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 this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall attach
to, or is or shall be incurred by, the incorporators, stockholders, officers or
directors as such, of the Company or of any predecessor or successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Debentures or implied therefrom;
and that any and all such personal liability of every name and nature, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, stockholder, officer or
director as such, because of the creation of the indebtedness hereby authorized,
or under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Debentures or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Debentures.
ARTICLE 13
Miscellaneous Provisions
Section 13.01. Successors and Assigns of Company Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or on behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
Section 13.02. Acts of Board, Committee or Officer of Successor Company
Valid. Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that shall at the
time be the lawful sole successor of the Company.
Section 13.03. Surrender of Powers of the Company. The Company by
instrument in writing executed by authority of two-thirds of its Board of
Directors and delivered to the Trustee may surrender any of the powers reserved
to the Company and thereupon such power so surrendered shall terminate both as
to the Company and as to any successor corporation.
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Section 13.04. Required Notices or Demands May be Served by Mail. Except
as otherwise expressly provided herein, any notice or demand which by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the holders of Debentures to or on the Company may be given or
served by being deposited first class postage prepaid in a post-office letterbox
addressed (until another address is filed in writing by the Company with the
Trustee), as follows: Houston Industries Incorporated, 1111 Louisiana, Houston,
Texas 77002, Attention: Corporate Secretary. Any notice, election, request or
demand by the Company or any Debentureholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the Corporate Trust Office of the Trustee.
Section 13.05. Indenture and Debentures to Be Construed in Accordance with
Laws of the State of New York. This Indenture and each Debenture shall be deemed
to be a contract made under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State (without
regard to principles of conflicts of laws thereof).
Section 13.06. Officer's Certificate and Opinion of Counsel to be
Furnished Upon Application or Demands by Company; Statements To Be Included In
Each Certificate or Opinion With Respect to Compliance With Condition or
Covenant.
(a) Upon any application or demand by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
in this Indenture (other than the certificate provided pursuant to Section
5.03(d) of this Indenture) shall include (1) a statement that the person making
such certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Section 13.07. Payments Due on Sundays or Holidays. Except as provided
pursuant to Section 2.01 pursuant to a Board Resolution, and as set forth in an
Officers' Certificate, or established in one or more indentures supplemental to
the Indenture, in any case where the date of maturity of interest or principal
of any Debenture or the date of redemption of any Debenture shall
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not be a Business Day then payment of interest or principal (and premium, if
any) may be made on the next succeeding Business Day, with the same force and
effect as if made on the nominal date of maturity or redemption, and no interest
shall accrue for the period after such nominal date.
Section 13.08. Provisions Required by Trust Indenture Act of 1939 to
Control. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 13.09. Indenture May Be Executed by its Counterparts. This
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.
Section 13.10 Separability of Indenture Provisions. In case any one or
more of the provisions contained in this Indenture or in the Debentures of any
series shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Indenture or of such Debentures, but this Indenture
and such Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
Section 13.11 Assignment by Company to a Subsidiary or Affiliate. The
Company will have the right at all times to assign any of its rights or
obligations under this Indenture to a Subsidiary or an Affiliate; provided that,
in the event of any such assignment, the Company will remain jointly and
severally liable for all such obligations. Subject to the foregoing, this
Indenture is binding upon and inures to the benefit of the parties thereto and
their respective successors and assigns. This Indenture may not otherwise be
assigned by the parties hereto (other than pursuant to Article 10).
Section 13.12. Holders of Preferred Securities as Third Party
Beneficiaries of the Indenture; Holders of Preferred Securities May Institute
Legal Proceedings Against the Company in Certain Cases. The Company acknowledges
that, prior to a Security Exchange with respect to Debentures of any series held
as trust assets of an HI Trust, if the Property Trustee of such HI Trust fails
to enforce its rights under this Indenture as the holder of the Debentures of a
series held as trust assets of such HI Trust, any holder of the Preferred
Securities of such HI Trust may, to the fullest extent permitted by law,
institute legal proceedings directly against the Company to enforce such
Property Trustee's rights under this Indenture without first instituting any
legal proceedings against such Property Trustee or any other Person; provided
that, if an Event of Default has occurred and is continuing and such event is
attributed to the failure of the Company to pay interest or principal on the
Debentures on the date such interest or principal is otherwise payable (or in
the case of redemption, on the redemption date), then a holder of Preferred
Securities of such HI Trust may directly institute a proceeding for enforcement
of payment to such holder of the principal of or interest on the Debentures
having a principal amount equal to the aggregate liquidation amount of the
Preferred Securities of such holder (a "Holder Direct Action") on or after the
respective due date specified in the Debentures. In connection with such Holder
Direct Action, the Company will be subrogated to the rights of such holder of
Preferred Securities to the extent of any payment made
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by the Company to such holders of Preferred Securities in such Holder Direct
Action. Except as provided in the preceding sentences, the holders of Preferred
Securities of such HI Trust will not be able to exercise directly any other
remedy available to the holders of the Debentures.
ARTICLE 14
Subordination of debentures
Section 14.01. Agreement to Subordinate. The Company covenants and agrees,
and each Debentureholder issued hereunder by his acceptance thereof likewise
covenants and agrees, that all Debentures shall be issued subject to the
provisions of this Article 14; and each person holding any Debenture, whether
upon original issue or upon transfer, assignment or exchange thereof accepts and
agrees to be bound by such provisions.
The payment by the Company of the principal of, premium, if any, and
interest on all Debentures issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and junior in right of payment to
all Senior Debt, whether outstanding at the date of this Indenture or thereafter
incurred.
No provision of this Article 14 shall prevent the occurrence of any Default
or Event of Default hereunder.
Section 14.02. Default on Senior Debt. In the event and during the
continuation of any default by the Company in the payment of principal, premium,
interest or any other payment due on any Senior Debt, or in the event that the
maturity of any Senior Debt has been accelerated because of a default, then, in
either case, no payment shall be made by the Company with respect to the
principal (including redemption payments) of or premium, if any, or interest on
the Debentures until such default shall have been cured or waived in writing or
shall have ceased to exist or such Senior Debt shall have been discharged or
paid in full.
In the event of the acceleration of the maturity of the Debentures, then no
payment shall be made by the Company with respect to the principal (including
redemption payments) of or premium, if any, or interest on the Debentures until
the holders of all Senior Debt outstanding at the time of such acceleration
shall receive payment in full of such Senior Debt (including any amounts due
upon acceleration).
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any Debentureholder when such payment is prohibited
by the preceding paragraphs of this Section 14.02, such payment shall be held in
trust for the benefit of, and shall be paid over or delivered to, the holders of
Senior Debt or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Debt may have been
issued, as their respective interests may appear.
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Section 14.03. Liquidation; Dissolution; Bankruptcy. Upon any payment by
the Company or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to creditors upon any liquidation,
dissolution, winding up, receivership, reorganization, assignment for the
benefit of creditors, marshaling of assets and liabilities or any bankruptcy,
insolvency or similar proceedings of the Company, all amounts due or to become
due upon all Senior Debt shall first be paid in full, in cash or cash
equivalents, or payment thereof provided for in accordance with its terms,
before any payment is made on account of the principal of, premium, if any, or
interest on the indebtedness evidenced by the Debentures, and upon any such
liquidation, dissolution, winding up, receivership, reorganization, assignment,
marshaling or proceeding, any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, to which the
Debentureholders or the Trustee under this Indenture would be entitled, except
for the provisions of this Article 14, shall be paid by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Debentureholders or by the
Trustee under this Indenture if received by them or it, directly to the holders
of Senior Debt (pro rata to such holders on the basis of the respective amounts
of Senior Debt held by such holders) or their respective representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Debt may have been issued, as their respective
interests may appear, to the extent necessary to pay all Senior Debt in full
(including, without limitation, except to the extent, if any, prohibited by
mandatory provisions of law, post-petition interest, in any such proceedings),
after giving effect to any concurrent payment or distribution to or for the
holders of Senior Debt, before any payment or distribution is made to the
holders of the indebtedness evidenced by the Debentures or to the Trustee under
this Indenture.
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, prohibited by the foregoing, shall be received by the
Trustee under this Indenture or the holders of the Debentures before all Senior
Debt is paid in full or provision is made for such payment in accordance with
its terms, such payment or distribution shall be held in trust for the benefit
of and shall be paid over or delivered to the holders of such Senior Debt or
their respective representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior Debt
may have been issued, as their respective interests may appear, for application
to the payment of all Senior Debt remaining unpaid until all such Senior Debt
shall have been paid in full in accordance with its terms, after giving effect
to any concurrent payment or distribution to or for the holders of such Senior
Debt.
For purposes of this Article 14, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of arrangement, reorganization or readjustment, the payment of which
is subordinated (at least to the extent provided in this Article 14 with respect
to the Debentures) to the payment of all Senior Debt which may at the time be
outstanding; provided, that (i) the Senior Debt is assumed by the new
corporation, if any, resulting from any such arrangement, reorganization or
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readjustment, and (ii) the rights of the holders of the Senior Debt are not,
without the consent of such holders, altered by such arrangement, reorganization
or readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided in Article 10 shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section if such other
Person shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions stated in Article 10. Nothing in Section 14.02 or
this Section 14.03 shall apply to claims of, or payments to, the Trustee under
or pursuant to Article 7, except as provided therein. This Section shall be
subject to the further provisions of Section 14.06.
Section 14.04. Subrogation of Debentures. Subject to the payment in full
of all Senior Debt, the rights of the holders of the Debentures 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 the
Senior Debt until the principal of, premium, if any, and interest on the
Debentures shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of the Senior Debt of any cash,
property or securities to which the holders of the Debentures or the Trustee on
their behalf would be entitled except for the provisions of this Article 14 and
no payment over pursuant to the provisions of this Article 14 to the holders of
Senior Debt by holders of the Debentures or the Trustee on their behalf shall,
as between the Company, its creditors other than holders of Senior Debt and the
holders of the Debentures, be deemed to be a payment by the Company to or on
account of the Senior Debt; and no payments or distributions of cash, property
or securities to or for the benefit of the Debentureholders pursuant to the
subrogation provisions of this Article, which would otherwise have been paid to
the holders of Senior Debt shall be deemed to be a payment by the Company to or
for the account of the Debentures. It is understood that the provisions of this
Article 14 are and are intended solely for the purpose of defining the relative
rights of the holders of the Debentures, on the one hand, and the holders of the
Senior Debt, on the other hand.
Nothing contained in this Article 14 or elsewhere in this Indenture or in
the Debentures is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Debt, and the holders of the
Debentures, the obligation of the Company, which is absolute and unconditional,
to pay to the holders of the Debentures the principal of, premium, if any, and
interest on the Debentures as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the holders of the Debentures and creditors of the Company other than
the holders of the Senior Debt, nor shall anything herein or therein prevent the
holder of any Debenture or the Trustee on his behalf from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article 14 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 14, the Trustee, subject to the provisions of Article 7, and the
holders of the Debentures shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which such liquidation,
57
<PAGE>
dissolution, winding up, receivership, reorganization, assignment or marshaling
proceedings are pending, or a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the holders of the Debentures, for
the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the 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 14.
Section 14.05. Authorization by Debentureholders. Each holder of a
Debenture by his acceptance thereof authorizes and directs the Trustee in his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article 14 and appoints the Trustee his attorney-
in-fact for any and all such purposes.
Section 14.06. Notice to Trustee. The Company shall give prompt written
notice to the Trustee and to any paying agent of any fact known to the Company
which would prohibit the making of any payment of moneys to or by the Trustee or
any paying agent in respect of the Debentures pursuant to the provisions of this
Article 14. Regardless of anything to the contrary contained in this Article 14
or elsewhere in this Indenture, the Trustee shall not be charged with knowledge
of the existence of any Senior Debt or of any default or event of default with
respect to any Senior Debt or of any other facts which would prohibit the making
of any payment of moneys to or by the Trustee, unless and until the Trustee
shall have received notice in writing at its principal Corporate Trust Office to
that effect signed by an officer of the Company, or by a holder or agent of a
holder of Senior Debt who shall have been certified by the Company or otherwise
established to the reasonable satisfaction of the Trustee to be such holder or
agent, or by the trustee under any indenture pursuant to which Senior Debt shall
be outstanding, and, prior to the receipt of any such written notice, the
Trustee shall, subject to the provisions of Article 7, be entitled to assume
that no such facts exist; provided, however, that if on a date at least three
Business Days prior to the date upon which by the terms hereof any such moneys
shall become payable for any purpose (including, without limitation, the payment
of the principal of, or interest on any Debenture) the Trustee shall not have
received with respect to such moneys the notice provided for in this Section
14.06, then, regardless of anything herein to the contrary, the Trustee shall
have full power and authority to receive such moneys and to apply the same to
the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such prior date.
The Trustee shall be entitled to conclusively rely on the delivery to it of
a written notice by a Person representing himself to be a holder of Senior Debt
(or a trustee on behalf of such holder) to establish that such notice has been
given by a holder of Senior Debt or a trustee on behalf of any such holder. In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article 14, 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 14, and if such evidence is not furnished
58
<PAGE>
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
Section 14.07. Trustee's Relation to Senior Debt. The Trustee and any
agent of the Company or the Trustee shall be entitled to all the rights set
forth in this Article 14 with respect to any Senior Debt which may at any time
be held by it in its individual or any other capacity to the same extent as any
other holder of Senior Debt and nothing in this Indenture shall deprive the
Trustee or any such agent, of any of its rights as such holder. Nothing in this
Article shall apply to claims of, or payments to, the Trustee under or pursuant
to Article 7.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article 14, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt and, subject to the provisions of
Article 7, the Trustee shall not be liable to any holder of Senior Debt if it
shall pay over or deliver to holders of Debentures, the Company or any other
person moneys or assets to which any holder of Senior Debt shall be entitled by
virtue of this Article 14 or otherwise.
Nothing in this Article 14 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.06.
Section 14.08. No Impairment to Subordination. No right of any present or
future holder of any Senior Debt to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith,
by any such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Debt of the Company may, at any time and from time to time,
without the consent of or notice to the Trustee or the Debentureholders, without
incurring responsibility to the Debentureholders and without impairing or
releasing the subordination provided in this Article 14 or the obligations
hereunder of the holders of the Debentures to the holders of such Senior Debt,
do any one or more of the following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, such Senior Debt,
or otherwise amend or supplement in any manner such Senior Debt or any
instrument evidencing the same or any agreement under which such Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such Senior Debt; (iii) release any
Person liable in any manner for the collection of such Senior Debt; and (iv)
exercise or refrain from exercising any rights against the Company, as the case
may be, and any other Person.
59
<PAGE>
Section 14.09. Article Applicable to Paying Agents. In case at any time
any paying agent other than the Trustee shall have been appointed by the Company
and be then acting hereunder, the term "Trustee" as used in this Article shall
in such case (unless the context otherwise requires) be construed as extending
to and including such paying agent within its meaning as fully for all intents
and purposes as if such paying agent were named in this Article in addition to
or in place of the Trustee.
Section 14.10. Trust Moneys Not Subordinated. Notwithstanding anything
contained herein to the contrary, payments from money or the proceeds of U.S.
Government Obligations held in trust under Section 11.02 of this Indenture by
the Trustee for the payment of principal of and interest on the Debentures shall
not be subordinated to the prior payment of any Senior Debt or subject to the
restrictions set forth in this Article 14, and none of the Debentureholders
shall be obligated to pay over any such amount to the Company or any holder of
Senior Debt of the Company or any other creditor of the Company.
The Bank of New York, a New York banking corporation, as Trustee, hereby
accepts the trust in this Indenture declared and provided, upon the terms and
conditions herein above set forth.
60
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
HOUSTON INDUSTRIES INCORPORATED
By: _________________________________
Name:
Title:
THE BANK OF NEW YORK, AS TRUSTEE
By: _________________________________
Name:
Title:
61
<PAGE>
STATE OF )
)
COUNTY OF )
BEFORE ME, the undersigned authority, on this day of _____________, ____,
personally appeared ________________________ (on behalf of Houston Industries
Incorporated), known to me (or proved to me by introduction upon the oath of a
person known to me) to be the person and officer, as the case may be, whose name
is subscribed to the foregoing instrument, and acknowledged to me that he or she
executed the same as the act of such and for the purposes and consideration
herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ day of _________, ____.
_________________________________
NOTARY PUBLIC, STATE OF
Print Name:
Commission Expires:
<PAGE>
STATE OF )
)
COUNTY OF )
BEFORE ME, the undersigned authority, on this day of _____________, ____,
personally appeared _______________________ of The Bank of New York, a New York
banking corporation, known to me (or proved to me by introduction upon the oath
of a person known to me) to be the person and officer whose names are subscribed
to the foregoing instrument, and acknowledged to me that he or she executed the
same as the act of such trust for the purposes and consideration herein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ day of _________, ____.
(SEAL)
_________________________________
NOTARY PUBLIC, STATE OF
Print Name:
Commission Expires:
<PAGE>
EXHIBIT 4.2.1
DECLARATION OF TRUST, dated as of January 8, 1999 among Houston Industries
Incorporated, a Texas corporation, as Sponsor (the "Sponsor"), and The Bank of
New York, a New York banking corporation, not in its individual capacity but
solely as trustee (the "Property Trustee"), The Bank of New York (Delaware), a
Delaware banking corporation, not in its individual capacity but solely as
trustee (the "Delaware Trustee"), and William T. Massar, not in his individual
capacity but solely as trustee (the Property Trustee, Delaware Trustee and such
individual as trustee, collectively the "Trustees"). The Sponsor and the
Trustees hereby agree as follows:
1. The Delaware business trust created hereby shall be known as "HI Trust
I" (the "Trust"), in which name the Trustees, or the Sponsor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. The Trust hereby acknowledges receipt of such amount from
the Sponsor, which amount shall constitute the initial trust estate. It is the
intention of the parties hereto that the Trust created hereby constitute a
business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code
(S) 3801 et seq. (the "Business Trust Act"), and that this document constitutes
the governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Secretary of State
of the State of Delaware in the form attached hereto in accordance with the
provisions of the Business Trust Act. The Trust is hereby established by the
Sponsor and the Trustees for the purposes of (i) issuing preferred securities
representing undivided beneficial interests in the assets of the Trust
("Preferred Securities") in exchange for cash and investing the proceeds thereof
in junior subordinated debentures of the Sponsor, (ii) issuing and selling
common securities representing an undivided beneficial interest in the assets of
the Trust ("Common Securities") to the Sponsor in exchange for cash and
investing the proceeds thereof in additional junior subordinated debentures of
the Sponsor and (iii) engaging in such other activities as are necessary,
convenient or incidental thereto.
3. The Sponsor and the Trustees will enter into an Amended and Restated
Declaration of Trust, satisfactory to each such party and substantially in the
form included as an exhibit to the 1933 Act Registration Statement referred to
below, to provide for the contemplated operation of the Trust created hereby and
the issuance of the Preferred Securities and Common Securities referred to
therein. Prior to the execution and delivery of such Amended and Restated
Declaration of Trust, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise.
<PAGE>
4. The Sponsor, as the sponsor of the Trust, is hereby authorized (i) to
prepare and file with the Securities and Exchange Commission (the "Commission")
and execute, in each case on behalf of the Trust, (a) a Registration Statement
on Form S-3 (the "1933 Act Registration Statement"), including any pre-effective
or post-effective amendments to such Registration Statement, relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities and certain other securities of the Sponsor and (b) if the Sponsor
shall deem it desirable, a Registration Statement on Form 8-A (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities
under Section 12 of the Securities Exchange Act of 1934, as amended; (ii) if the
Sponsor shall deem it desirable, to prepare and file with the New York Stock
Exchange or one or more national securities exchange(s) (each, an "Exchange") or
the National Association of Securities Dealers, Inc. (the "NASD") and execute on
behalf of the Trust a listing application or applications and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred Securities to be listed
on any such Exchange or the NASD's Nasdaq National Market ("Nasdaq"); (iii) to
prepare and file and execute on behalf of the Trust such applications, reports,
surety bonds, irrevocable consents, appointments of attorney for service of
process and other papers and documents as the Sponsor, on behalf of the Trust,
may deem necessary or desirable to register the Preferred Securities under the
securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of
the Trust, may deem necessary or desirable, (iv) to negotiate the terms of and
execute on behalf of the Trust an underwriting agreement among the Trust, the
Sponsor and any underwriter(s), dealer(s) or agent(s) relating to the Preferred
Securities, as the Sponsor, on behalf of the Trust, may deem necessary or
desirable and (v) to execute and deliver on behalf of the Trust letters or
documents to, or instruments for filing with, a depository relating to the
Preferred Securities. In the event that any filing referred to in clauses (i)-
(iii) above is required by the rules and regulations of the Commission, any
Exchange, Nasdaq, the NASD or state securities or blue sky laws, to be executed
on behalf of the Trust by a Trustee, any natural person appointed pursuant to
Section 6 hereof, in his or her capacity as trustee of the Trust, and the
Sponsor are hereby authorized to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing.
5. This Declaration of Trust may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided, however, that the number of Trustees shall in no
event be less than three (3); and provided, further that to the extent required
by the Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and
2
<PAGE>
meets other requirements imposed by applicable law. Subject to the foregoing,
the Sponsor is entitled to appoint or remove without cause any Trustee at any
time. Any Trustees may resign upon thirty days' prior notice to the Sponsor.
7. The Trust may be dissolved and terminated before the issuance of any
Preferred Securities at the election of the Sponsor.
8. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
HOUSTON INDUSTRIES INCORPORATED,
as Sponsor
By: /s/ Linda Geiger
----------------------------------------
Name: Linda Geiger
Title: Assistant Treasurer
THE BANK OF NEW YORK,
not in its individual capacity but solely as
Property Trustee
By: /s/ Remo J. Reale
-----------------------------------------
Name: Remo J. Reale
Title: Assistant Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely as
Delaware Trustee
By: /s/ Walter N. Gitlin
------------------------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
WILLIAM T. MASSAR,
not in his individual capacity but solely as
Trustee
By: /s/ William T. Massar
----------------------------------------
4
<PAGE>
EXHIBIT 4.2.2
DECLARATION OF TRUST, dated as of January 8, 1999 among Houston Industries
Incorporated, a Texas corporation, as Sponsor (the "Sponsor"), and The Bank of
New York, a New York banking corporation, not in its individual capacity but
solely as trustee (the "Property Trustee"), The Bank of New York (Delaware), a
Delaware banking corporation, not in its individual capacity but solely as
trustee (the "Delaware Trustee"), and William T. Massar, not in his individual
capacity but solely as trustee (the Property Trustee, Delaware Trustee and such
individual as trustee, collectively the "Trustees"). The Sponsor and the
Trustees hereby agree as follows:
1. The Delaware business trust created hereby shall be known as "HI Trust
II" (the "Trust"), in which name the Trustees, or the Sponsor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. The Trust hereby acknowledges receipt of such amount from
the Sponsor, which amount shall constitute the initial trust estate. It is the
intention of the parties hereto that the Trust created hereby constitute a
business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code
(S) 3801 et seq. (the "Business Trust Act"), and that this document constitutes
the governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Secretary of State
of the State of Delaware in the form attached hereto in accordance with the
provisions of the Business Trust Act. The Trust is hereby established by the
Sponsor and the Trustees for the purposes of (i) issuing preferred securities
representing undivided beneficial interests in the assets of the Trust
("Preferred Securities") in exchange for cash and investing the proceeds thereof
in junior subordinated debentures of the Sponsor, (ii) issuing and selling
common securities representing an undivided beneficial interest in the assets of
the Trust ("Common Securities") to the Sponsor in exchange for cash and
investing the proceeds thereof in additional junior subordinated debentures of
the Sponsor and (iii) engaging in such other activities as are necessary,
convenient or incidental thereto.
3. The Sponsor and the Trustees will enter into an Amended and Restated
Declaration of Trust, satisfactory to each such party and substantially in the
form included as an exhibit to the 1933 Act Registration Statement referred to
below, to provide for the contemplated operation of the Trust created hereby and
the issuance of the Preferred Securities and Common Securities referred to
therein. Prior to the execution and delivery of such Amended and Restated
Declaration of Trust, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise.
<PAGE>
4. The Sponsor, as the sponsor of the Trust, is hereby authorized (i) to
prepare and file with the Securities and Exchange Commission (the "Commission")
and execute, in each case on behalf of the Trust, (a) a Registration Statement
on Form S-3 (the "1933 Act Registration Statement"), including any pre-effective
or post-effective amendments to such Registration Statement, relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities and certain other securities of the Sponsor and (b) if the Sponsor
shall deem it desirable, a Registration Statement on Form 8-A (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities
under Section 12 of the Securities Exchange Act of 1934, as amended; (ii) if the
Sponsor shall deem it desirable, to prepare and file with the New York Stock
Exchange or one or more national securities exchange(s) (each, an "Exchange") or
the National Association of Securities Dealers, Inc. (the "NASD") and execute on
behalf of the Trust a listing application or applications and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred Securities to be listed
on any such Exchange or the NASD's Nasdaq National Market ("Nasdaq"); (iii) to
prepare and file and execute on behalf of the Trust such applications, reports,
surety bonds, irrevocable consents, appointments of attorney for service of
process and other papers and documents as the Sponsor, on behalf of the Trust,
may deem necessary or desirable to register the Preferred Securities under the
securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of
the Trust, may deem necessary or desirable, (iv) to negotiate the terms of and
execute on behalf of the Trust an underwriting agreement among the Trust, the
Sponsor and any underwriter(s), dealer(s) or agent(s) relating to the Preferred
Securities, as the Sponsor, on behalf of the Trust, may deem necessary or
desirable and (v) to execute and deliver on behalf of the Trust letters or
documents to, or instruments for filing with, a depository relating to the
Preferred Securities. In the event that any filing referred to in clauses (i)-
(iii) above is required by the rules and regulations of the Commission, any
Exchange, Nasdaq, the NASD or state securities or blue sky laws, to be executed
on behalf of the Trust by a Trustee, any natural person appointed pursuant to
Section 6 hereof, in his or her capacity as trustee of the Trust, and the
Sponsor are hereby authorized to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing.
5. This Declaration of Trust may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided, however, that the number of Trustees shall in no
event be less than three (3); and provided, further that to the extent required
by the Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and
2
<PAGE>
meets other requirements imposed by applicable law. Subject to the foregoing,
the Sponsor is entitled to appoint or remove without cause any Trustee at any
time. Any Trustees may resign upon thirty days' prior notice to the Sponsor.
7. The Trust may be dissolved and terminated before the issuance of any
Preferred Securities at the election of the Sponsor.
8. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
HOUSTON INDUSTRIES INCORPORATED,
as Sponsor
By: /s/ Linda Geiger
---------------------------------------------
Name: Linda Geiger
Title: Assistant Treasurer
THE BANK OF NEW YORK,
not in its individual capacity but solely as
Property Trustee
By: /s/ Remo J. Reale
-----------------------------------------------
Name: Remo J. Reale
Title: Assistant Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely as
Delaware Trustee
By: /s/ Walter N. Gitlin
-------------------------------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
WILLIAM T. MASSAR,
not in his individual capacity but solely as
Trustee
By: /s/ William T. Massar
------------------------------------------------
4
<PAGE>
EXHIBIT 4.3
================================================================================
AMENDED AND RESTATED DECLARATION OF TRUST
OF
HI TRUST I
_______________________________________
DATED AS OF ___________, ____
_______________________________________
================================================================================
<PAGE>
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
----
ARTICLE 1
Definitions
<S> <C>
Section 1.01. Definitions................................................ 2
Affiliate.......................................................... 2
Book Entry Interest................................................ 2
Business Day....................................................... 3
Business Trust Act................................................. 3
Certificate........................................................ 3
Certificate of Trust............................................... 3
Clearing Agency.................................................... 3
Clearing Agency Participant........................................ 3
Closing Date....................................................... 3
Code............................................................... 3
Commission......................................................... 3
Common Securities.................................................. 3
Common Security Certificate........................................ 4
Covered Person..................................................... 4
Creditor........................................................... 4
Debenture Trustee.................................................. 4
Debentures......................................................... 4
Definitive Preferred Security Certificates......................... 4
Delaware Trustee................................................... 4
Depositary Agreement............................................... 4
Distribution....................................................... 4
DTC................................................................ 4
Event of Default................................................... 4
Exchange........................................................... 4
Exchange Act....................................................... 4
Fiscal Year........................................................ 4
Global Certificate................................................. 5
Holder............................................................. 5
Holder Direct Action............................................... 5
Houston Industries................................................. 5
Sponsor............................................................ 5
</TABLE>
- ----------
*This Table of Contents does not constitute part of the Amended and Restated
Declaration of Trust and should not have any bearing upon the interpretation of
any of its terms or provisions.
i
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Indemnified Person................................................. 5
Indenture.......................................................... 5
Indenture Event of Default......................................... 5
Investment Company................................................. 5
Investment Company Act............................................. 5
Legal Action....................................................... 5
Liquidation Distribution........................................... 5
List of Holders.................................................... 5
Majority in liquidation amount of the Securities................... 5
NASD............................................................... 6
Nasdaq............................................................. 6
1933 Act Registration Statement.................................... 6
1934 Act Registration Statement.................................... 6
Officers' Certificate.............................................. 6
Opinion of Counsel................................................. 6
Original Declaration............................................... 7
Paying Agent....................................................... 7
Payment Amount..................................................... 7
Person............................................................. 7
Preferred Guarantee................................................ 7
Preferred Securities............................................... 7
Preferred Security Beneficial Owner................................ 7
Preferred Security Certificate..................................... 7
Property Trustee................................................... 7
Property Account................................................... 7
Quorum............................................................. 7
Regular Trustee.................................................... 7
Related Party...................................................... 8
Resignation Request................................................ 8
Responsible Officer................................................ 8
Rule 3a-7.......................................................... 8
Securities......................................................... 8
Securities Act..................................................... 8
Special Event...................................................... 8
Successor Delaware Trustee......................................... 8
Successor Entity................................................... 8
Successor Property Trustee......................................... 8
Successor Securities............................................... 8
Super Majority..................................................... 8
Supplemental Indenture............................................. 8
10% in liquidation amount of the Securities........................ 8
Treasury Regulations............................................... 9
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Trust.............................................................. 9
Trustee............................................................ 9
Trustees........................................................... 9
Trust Indenture Act................................................ 9
Underwriting Agreement............................................. 9
ARTICLE 2
Trust Indenture Act
Section 2.01. Trust Indenture Act; Application............................ 9
Section 2.02. Lists of Holders of Preferred Securities.................... 10
Section 2.03. Reports by the Property Trustee............................. 10
Section 2.04. Periodic Reports to the Property Trustee.................... 11
Section 2.05. Evidence of Compliance with Conditions Precedent............ 11
Section 2.06. Events of Default; Waiver................................... 11
Section 2.07. Disclosure of Information................................... 13
ARTICLE 3
Organization
Section 3.01. Name........................................................ 13
Section 3.02. Office...................................................... 14
Section 3.03. Issuance of the Securities.................................. 14
Section 3.04. Purchase of Debentures...................................... 14
Section 3.05. Purpose..................................................... 15
Section 3.06. Authority................................................... 15
Section 3.07. Title to Property of the Trust.............................. 16
Section 3.08. Powers and Duties of the Regular Trustees................... 16
Section 3.09. Prohibition of Actions by the Trust and the Trustees........ 19
Section 3.10. Powers and Duties of the Property Trustee................... 20
Section 3.11. Delaware Trustee............................................ 23
Section 3.12. Certain Rights and Duties of the Property Trustee........... 24
Section 3.13. Registration Statement and Related Matters.................. 26
Section 3.14. Filing of Amendments to Certificate of Trust................ 28
Section 3.15. Execution of Documents by the Regular Trustees.............. 28
Section 3.16. Trustees Not Responsible for Recitals or Issuance of
Securities.................................................. 28
Section 3.17. Duration of the Trust....................................... 28
Section 3.18. Mergers..................................................... 28
Section 3.19. Property Trustee May File Proofs of Claim................... 30
</TABLE>
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ARTICLE 4
Sponsor
Section 4.01. Purchase of Common Securities by the Sponsor................ 31
Section 4.02. Expenses.................................................... 32
ARTICLE 5
Trustees
Section 5.01. Number of Trustees; Qualifications.......................... 32
Section 5.02. Appointment, Removal and Resignation of the Trustees........ 35
Section 5.03. Vacancies among the Trustees................................ 36
Section 5.04. Effect of Vacancies......................................... 37
Section 5.05. Meetings.................................................... 37
Section 5.06. Delegation of Power......................................... 37
Section 5.07. Merger, Conversion, Consolidation or Succession to
Business.................................................... 38
ARTICLE 6
Distributions
Section 6.01. Distributions............................................... 38
ARTICLE 7
Issuance of the Securities
Section 7.01. General Provisions Regarding the Securities................. 39
ARTICLE 8
Dissolution of the Trust
Section 8.01. Dissolution of the Trust.................................... 41
ARTICLE 9
Transfer of Interests
Section 9.01. Transfer of Securities...................................... 41
Section 9.02. Transfer of Certificates.................................... 42
Section 9.03. Deemed Security Holders..................................... 42
Section 9.04. Book Entry Interests........................................ 43
Section 9.05. Notices to Holders of Certificates.......................... 44
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Section 9.06. Appointment of Successor Clearing Agency.................... 44
Section 9.07. Definitive Preferred Securities Certificates................ 44
Section 9.08. Mutilated, Destroyed, Lost or Stolen Certificates........... 45
ARTICLE 10
Limitation of Liability; Indemnification
Section 10.01. Exculpation................................................ 45
Section 10.02. Indemnification............................................ 46
Section 10.03. Outside Business........................................... 46
ARTICLE 11
Accounting
Section 11.01. Fiscal Year................................................ 47
Section 11.02. Certain Accounting Matters................................. 47
Section 11.03. Banking.................................................... 48
Section 11.04. Withholding................................................ 48
ARTICLE 12
Amendments and Meetings
Section 12.01. Amendments................................................. 48
Section 12.02. Meetings of the Holders of Securities; Action by
Written Consent............................................ 50
ARTICLE 13
Representations of the Property Trustee and the Delaware Trustee
Section 13.01. Representations and Warranties of the Property
Trustee.................................................... 51
Section 13.02. Representations and Warranties of the Delaware
Trustee.................................................... 52
ARTICLE 14
Miscellaneous
Section 14.01. Notices.................................................... 53
Section 14.02. Undertaking for Costs...................................... 54
Section 14.03. Governing Law.............................................. 55
Section 14.04. Headings................................................... 55
Section 14.05. Partial Enforceability..................................... 55
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Section 14.06. Counterparts............................................... 55
Section 14.07. Intention of the Parties................................... 55
Section 14.08. Successors and Assigns..................................... 56
Section 14.09. No Recourse................................................ 56
SIGNATURES AND SEALS
EXHIBIT A: CERTIFICATE OF TRUST
EXHIBIT B: TERMS OF THE PREFERRED SECURITIES
EXHIBIT C: TERMS OF THE COMMON SECURITIES
</TABLE>
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AMENDED AND RESTATED
DECLARATION OF TRUST
OF
HI TRUST I
AMENDED AND RESTATED DECLARATION OF TRUST (this "Declaration") dated and
effective as of __________, ____ by Linda Geiger, an individual, Paul A.
Castanon, an individual, and William T. Massar, an individual, as Regular
Trustees (the "Regular Trustees"), The Bank of New York, a New York banking
corporation, as Property Trustee (the "Property Trustee") and The Bank of New
York (Delaware), a Delaware banking corporation, as Delaware Trustee (the
"Delaware Trustee") (together with all other Persons from time to time duly
appointed and serving as trustees in accordance with the provisions of this
Declaration, the "Trustees"), Houston Industries Incorporated, a Texas
corporation, as trust sponsor ("Houston Industries" or the "Sponsor"), and by
the holders, from time to time, of undivided beneficial interests in the assets
of the Trust to be issued pursuant to this Declaration.
WHEREAS, the Sponsor and certain of the Trustees entered into a Declaration
of Trust dated as of January 8, 1999 (the "Original Declaration") in order to
establish HI Trust I, a statutory business trust (the "Trust"), under the
Business Trust Act (as hereinafter defined);
WHEREAS, the Certificate of Trust (the "Certificate of Trust") of the Trust
was filed with the office of the Secretary of State of the State of Delaware on
January 11, 1999; and
WHEREAS, the Trustees and the Sponsor desire to continue the Trust pursuant
to the Business Trust Act for the purpose of, as described more fully in
Sections 303 and 304 hereof, (i) issuing and selling Preferred Securities (as
hereinafter defined) representing preferred undivided beneficial interests in
the assets of the Trust for cash and investing the proceeds thereof in
Debentures (as hereinafter defined) of Houston Industries issued under the
Indenture (as hereinafter defined) to be held as assets of the Trust and (ii)
issuing and selling Common Securities (as hereinafter defined) representing
common undivided beneficial interests in the assets of the Trust to Houston
Industries in exchange for cash and investing the proceeds thereof in additional
Debentures issued under the Indenture to be held as assets of the Trust;
NOW, THEREFORE, it being the intention of the parties hereto that the Trust
constitute a business trust under the Business Trust Act, that the Original
Declaration be amended and restated in its entirety as provided herein and that
<PAGE>
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all Debentures referred to in clauses (i) and (ii) of the
previous paragraph purchased by the Trust will be held for the benefit of the
Holders (as hereinafter defined) from time to time, of the Certificates (as
hereinafter defined) representing undivided beneficial interests in the assets
of the Trust issued hereunder, subject to the provisions of this Declaration.
ARTICLE 1
Definitions
Section 1.01. Definitions.
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.01;
(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
Amended and Restated Declaration of Trust (including Exhibits A, B and C hereto
(the "Exhibits")) as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles, Sections and Exhibits
are to Articles and Sections of 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.
"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.
"Book Entry Interest" means a beneficial interest in a Global Certificate
registered in the name of a Clearing Agency or a nominee thereof, ownership and
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transfers of which shall be maintained and made through book entries by such
Clearing Agency as described in Section 9.04.
"Business Day" means any day other than a Saturday or Sunday or a day on
which banking institutions in the Borough of Manhattan, The City and State of
New York or Houston, Texas are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code (S) 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Certificate" means a Common Security Certificate or a Preferred Security
Certificate.
"Certificate of Trust" has the meaning set forth in the second WHEREAS
clause above.
"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
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 the 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 securities deposited with the
Clearing Agency.
"Closing Date" means the Closing Date as specified in the Underwriting
Agreement, which date is also the date of execution and delivery of this
Declaration.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation. A reference to a specific section (Sec.) of
the Code refers not only to such specific section but also to any corresponding
provision of any Federal tax statute enacted after the date of this Declaration,
as such specific section or corresponding provision is in effect on the date of
application of the provisions of this Declaration containing such reference.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning specified in Section 7.01(b).
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"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Annex I to Exhibit C.
"Covered Person" means (i) any officer, director, shareholder, partner,
member, representative, employee or agent of the Trust or of any of its
Affiliates, (ii) any officer, director, shareholder, employee, representative or
agent of Houston Industries or of any of its Affiliates and (iii) the Holders
from time to time of the Securities.
"Creditor" has the meaning specified in Section 4.02(c).
"Debenture Trustee" means The Bank of New York, a New York banking
corporation, as trustee under the Indenture until a successor is appointed
thereunder and thereafter means such successor trustee.
"Debentures" means the series of junior subordinated debentures issued by
Houston Industries under the Indenture to the Property Trustee and entitled the
"____% Junior Subordinated Debentures due [ ]".
"Definitive Preferred Security Certificates" has the meaning set forth in
Section 9.04.
"Delaware Trustee" has the meaning set forth in Section 5.01(a)(3).
"Depositary Agreement" means the agreement among the Trust, the Property
Trustee and DTC dated as of the Closing Date, as the same may be amended or
supplemented from time to time.
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 6.01.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Event of Default" in respect of the Securities means that an Indenture
Event of Default has occurred and is continuing with respect to the Debentures.
"Exchange" has the meaning specified in Section 3.13.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor legislation.
"Fiscal Year" has the meaning specified in Section 11.01.
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<PAGE>
"Global Certificate" has the meaning set forth in Section 9.04.
"Holder" means a Person in whose name a Certificate representing a Security
is registered, such Person being a beneficial owner within the meaning of the
Business Trust Act.
"Holder Direct Action" has the meaning specified in Section 3.10(e).
"Houston Industries" or " Sponsor" means Houston Industries Incorporated, a
Texas corporation, or any successor entity resulting from any merger,
consolidation, amalgamation or other business combination, in its capacity as
sponsor of the Trust.
"Indemnified Person" means any Trustee, any Affiliate of any Trustee, any
Paying Agent, any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee or Paying Agent, or any
employee or agent of the Trust or of any of its Affiliates.
"Indenture" means the Junior Subordinated Indenture dated as of _______ __,
____ between Houston Industries and the Debenture Trustee as supplemented by the
_______ Supplemental Indenture thereto dated as of ____________, ____, pursuant
to which the Debentures are to be issued.
"Indenture Event of Default" means that an event or condition defined as an
"Event of Default" with respect to the Debentures under Section 6.01(a) of the
Indenture has occurred and is continuing.
"Investment Company" means an "investment company" as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Legal Action" has the meaning specified in Section 3.08(g).
"Liquidation Distribution" has the meaning set forth in Exhibits B and C
hereto establishing the terms of the Securities.
"List of Holders" has the meaning specified in Section 2.02(a).
"Majority in liquidation amount of the Securities" means, except as
otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 6 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
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<PAGE>
require, Holder(s) of outstanding Preferred Securities or Common Securities
voting separately as a class, who are the record owners of a relevant class of
Securities whose liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined)
represents more than 50% of the liquidation amount of all outstanding Securities
of such class.
"NASD" has the meaning specified in Section 3.13.
"Nasdaq" has the meaning specified in Section 3.13.
"1933 Act Registration Statement" has the meaning specified in
Section 3.13.
"1934 Act Registration Statement" has the meaning specified in
Section 3.13.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the Chief Executive Officer, the President or a Vice President, and by
the Treasurer, an Associate Treasurer, an Assistant Treasurer, the Comptroller,
the Secretary or an Assistant Secretary of the Sponsor, and delivered to the
appropriate Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 2.04 shall be the principal executive, financial or
accounting officer of the Sponsor. 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.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Trust, the Property Trustee or the Sponsor, which may be an
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<PAGE>
employee of the Sponsor but not an employee of the Trust or the Property
Trustee, and who shall be reasonably acceptable to the Property Trustee. Any
Opinion of Counsel pertaining to Federal income tax matters may rely on
published rulings of the Internal Revenue Service.
"Original Declaration" has the meaning set forth in the first WHEREAS
clause above.
"Paying Agent" has the meaning specified in Section 3.10(i).
"Payment Amount" has the meaning specified in Section 6.01.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, government or any agency
or political subdivision thereof, or any other entity of whatever nature.
"Preferred Guarantee" means the Guarantee Agreement dated as of __________,
____ of Houston Industries in respect of the Preferred Securities.
"Preferred Securities" has the meaning specified in Section 7.01(b).
"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).
"Preferred Security Certificate" means a definitive certificate in fully
registered form representing a Preferred Security substantially in the form of
Annex I to Exhibit B.
"Property Trustee" means the Trustee meeting the eligibility requirements
set forth in Section 5.01(c) and having the duties set forth for the Property
Trustee herein.
"Property Account" has the meaning specified in Section 3.10(c)(i).
"Quorum" means a majority of the Regular Trustees or, if there are only two
Regular Trustees, both such Regular Trustees.
"Regular Trustee" means any Trustee other than the Property Trustee and the
Delaware Trustee.
7
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"Related Party" means any direct or indirect wholly owned subsidiary of
Houston Industries or any other Person which owns, directly or indirectly, 100%
of the outstanding voting securities of Houston Industries.
"Resignation Request" has the meaning specified in Section 5.02(d).
"Responsible Officer" means, when used with respect to the Property
Trustee, any officer within the corporate trust department of the Property
Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the
Property Trustee who customarily performs functions similar to those performed
by the Persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of such Person's knowledge of and
familiarity with the particular subject and who shall have direct responsibility
for the administration of this Declaration.
"Rule 3a-7" means Rule 3a-7 under the Investment Company Act or any
successor rule thereunder.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"Special Event" has the meaning set forth in the terms of the Securities as
set forth in paragraph 4 of Exhibits B and C hereto.
"Successor Delaware Trustee" has the meaning specified in
Section 5.02(b)(ii).
"Successor Entity" has the meaning specified in Section 3.18(b)(i).
"Successor Property Trustee" has the meaning specified in Section
5.02(b)(i).
"Successor Securities" has the meaning specified in Section 3.18(b)(i)(B).
"Super Majority" has the meaning specified in Section 2.06(a)(ii).
"Supplemental Indenture" means the _____ Supplemental Indenture dated as of
________, ____ between Houston Industries and the Debenture Trustee, pursuant to
which the Debentures are to be issued.
"10% in liquidation amount of the Securities" means, except as otherwise
required by the Trust Indenture Act and except as provided in the penultimate
8
<PAGE>
paragraph of paragraph 6 of Exhibit B hereto, Holder(s) of outstanding
Securities voting together as a single class or, as the context may require,
Holder(s) of outstanding Preferred Securities or Common Securities, voting
separately as a class, who are the record owners of a relevant class of
Securities whose liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined)
represents 10% or more of the liquidation amount of all outstanding Securities
of such class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust" has the meaning set forth in the first WHEREAS clause above.
"Trustee" or " Trustees" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Underwriting Agreement" means the Underwriting Agreement dated as of
__________, ____ among the Trust, the Sponsor and _______ and _________, as
representatives of the several underwriters named therein.
ARTICLE 2
Trust Indenture Act
Section 2.01. 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) if and to the extent that any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by (S)(S) 310 to 317, inclusive,
of the Trust Indenture Act, such imposed duties shall control;
9
<PAGE>
(c) the Property Trustee, to the extent permitted by applicable law and/or
the rules and regulations of the Commission, shall be the only Trustee which is
a trustee for the purposes of the Trust Indenture Act; and
(d) the application of the Trust Indenture Act to this Declaration shall
not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
Section 2.02. Lists of Holders of Preferred Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Property Trustee unless the Property Trustee is registrar for
the Securities, (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 ("List of Holders") as of
such record date, provided that neither the Sponsor nor the Regular Trustees on
behalf of the Trust shall be obligated to provide such List of Holders at any
time that the List of Holders does not differ from the most recent List of
Holders given to the Property Trustee by the Sponsor and the Regular Trustees on
behalf of the Trust, and (ii) at any other time, within 30 days of receipt by
the Trust of a written request for a List of Holders as of a date no more than
14 days before such List of Holders is given to the Property Trustee. The
Property Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given to it or which
it receives in the capacity as Paying Agent (if acting in such capacity)
provided that the Property Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under (S)(S)
310(b), 311 and 312(b) of the Trust Indenture Act.
Section 2.03. Reports by the Property Trustee.
Within 60 days after January 15 of each year, the Property Trustee shall
provide to the Holders of the Securities such reports as are required by (S) 313
of the Trust Indenture Act, if any, in the form, in the manner and at the times
provided by (S) 313 of the Trust Indenture Act. The Property Trustee shall also
comply with the requirements of (S) 313(d) of the Trust Indenture Act. A copy
of each such report shall, at the time of such transmission to Holders, be filed
by the Property Trustee with the Company, with each stock exchange upon which
any Preferred Securities are listed (if so listed) and also with the Commission.
The Company agrees to notify the Property Trustee when any Preferred Securities
become listed on any stock exchange and of any delisting thereof.
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Section 2.04. Periodic Reports to the Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Property Trustee, the Commission and the Holders of the
Securities, as applicable, such documents, reports and information as required
by (S) 314(a)(1)-(3) (if any) of the Trust Indenture Act and the compliance
certificates required by (S) 314(a)(4) and (c) of the Trust Indenture Act, any
such certificates to be provided in the form, in the manner and at the times
required by (S) 314(a)(4) and (c) of the Trust Indenture Act (provided that any
certificate to be provided pursuant to (S) 314(a)(4) of the Trust Indenture Act
shall be provided within 120 days of the end of each Fiscal Year). Delivery of
such reports, information and documents to the Property Trustee is for
informational purposes only and the Property Trustee's receipt of such shall not
constitute constructive notice of any information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Property Trustee is entitled to rely exclusively on Officers' Certificates).
Section 2.05. Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent provided for in this Declaration which relate to any of the matters
set forth in (S) 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to (S) 314(c) may be given in the
form of an Officers' Certificate.
Section 2.06. Events of Default; Waiver.
(a) The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default under this
Declaration shall also not be waivable; or
(ii) requires the consent or vote of the holders of greater than a majority
in aggregate principal amount of the Debentures (a "Super Majority") to be
waived under the Indenture, the Event of Default under this Declaration may only
be waived by the vote of the Holders of at least the proportion in aggregate
liquidation amount of the Preferred Securities that the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding.
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The foregoing provisions of this Section 2.06(a) shall be in lieu of (S)
316(a)(1)(B) of the Trust Indenture Act and such (S) 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
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 an Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote or
consent of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders of the
Common Securities are deemed to have waived such Event of Default under the
Declaration as provided above in Section 2.06(a) or below in this Section
2.06(b), the Event of Default under this Declaration shall also not be waivable;
or
(ii) requires the consent or vote of a Super Majority to be waived, except
where the Holders of the Common Securities are deemed to have waived such Event
of Default under this Declaration as provided above in Section 2.06(a) or below
in this Section 2.06(b), the Event of Default under this Declaration may only be
waived by the vote of the Holders of at least the proportion in aggregate
liquidation amount of the Common Securities that the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding;
provided, further, that the Holders of Common Securities will be deemed to have
waived any such Event of Default and all Events of Defaults with respect to the
Common Securities and their consequences until all Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated, and until such Events of Default 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 Preferred Securities and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee in
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accordance with the terms of the Securities. The foregoing provisions of this
Section 2.06(b) shall be in lieu of (S)(S) 316(a)(1)(A) and 316(a)(1)(B) of the
Trust Indenture Act and such (S)(S) 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act are hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. In the event that any
Event of Default with respect to the Preferred Securities is waived by the
Holders of Preferred Securities as provided in the Declaration, the Holders of
Common Securities agree that such waiver shall also constitute the waiver of
such Event of Default with respect to the Common Securities for all purposes
under the Declaration without any further act, vote or consent of the Holders of
the Common Securities. Subject to the foregoing provisions of this Section
2.06(b), upon waiver, any such default shall cease to exist and any Event of
Default with respect to the 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 Event of Default with respect
to the Common Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the Property
Trustee, at the direction of the Holders of Preferred Securities, constitutes a
waiver of the corresponding Event of Default under this Declaration. The
foregoing provisions of this Section 2.06(c) shall be in lieu of (S)
316(a)(1)(B) of the Trust Indenture Act and such (S) 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act.
Section 2.07. Disclosure of Information.
The disclosure of information as to the names and addresses of the Holders
of the Securities in accordance with (S) 312 of the Trust Indenture Act,
regardless of the source from which such information was derived, shall not be
deemed to be a violation of any existing law, or any law hereafter enacted which
does not specifically refer to (S) 312 of the Trust Indenture Act, nor shall the
Property Trustee be held accountable by reason of mailing any material pursuant
to a request made under (S) 312(b) of the Trust Indenture Act.
ARTICLE 3
Organization
Section 3.01. Name.
The Trust continued by this Declaration is named "HI Trust I" as such name
may be modified from time to time by the Regular Trustees following
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written notice to the Holders of the Securities. The Trust's activities may be
conducted under the name of the Trust or any other name deemed advisable by the
Regular Trustees.
Section 3.02. Office.
The address of the principal office of the Trust is c/o Houston Industries
Incorporated, 1111 Louisiana, Houston, Texas 77002. Upon ten days' written
notice to the Holders, the Regular Trustees may change the location of the
Trust's principal office.
Section 3.03. Issuance of the Securities.
On __________, ____ the Sponsor, on behalf of the Trust and pursuant to the
Original Declaration, executed and delivered the Underwriting Agreement. On the
Closing Date and contemporaneously with the execution and delivery of this
Declaration, the Regular Trustees, on behalf of the Trust, shall execute and
deliver (i) one or more Global Certificates, registered in the name of the
nominee of the initial Clearing Agency as specified in Section 9.04 for the
benefit of the underwriters named in the Underwriting Agreement, in an aggregate
amount of ___________ Preferred Securities having an aggregate liquidation
amount of $__________, against receipt of the aggregate purchase price of such
Preferred Securities of $___________, and (ii) to the Sponsor, one or more
Common Securities Certificates, registered in the name of the Sponsor, in an
aggregate amount of ________ Common Securities having an aggregate liquidation
amount of $____________, against receipt of the aggregate purchase price of such
Common Securities of $___________.
Section 3.04. Purchase of Debentures.
On the Closing Date and contemporaneously with the execution and delivery
of this Declaration, the Regular Trustees, on behalf of the Trust, shall
purchase from the Sponsor with the proceeds received by the Trust from the sale
of the Securities on such date pursuant to Section 3.03, at a purchase price of
100% of the principal amount thereof, Debentures, registered in the name of the
Property Trustee and having an aggregate principal amount equal to $___________,
and, in satisfaction of the purchase price for such Debentures, the Regular
Trustee, on behalf of the Trust, shall deliver or cause to be delivered to the
Sponsor the sum of $___________.
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Section 3.05. Purpose.
The exclusive purposes and functions of the Trust are: (a)(i) to issue and
sell Preferred Securities for cash and use the proceeds of such sales to acquire
from Houston Industries Debentures issued under the Indenture having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities so issued and sold; (ii) to enter into such agreements and
arrangements as may be necessary in connection with the sale of Preferred
Securities to the initial purchasers thereof (including the Underwriting
Agreement) and to take all action, and exercise such discretion, as may be
necessary or desirable in connection therewith and to file such registration
statements or make such other filings under the Securities Act, the Exchange Act
or state securities or "Blue Sky" laws as may be necessary or desirable in
connection therewith and the issuance of the Preferred Securities; and (iii) to
issue and sell Common Securities to Houston Industries for cash and use the
proceeds of such sale to purchase as trust assets an equal aggregate principal
amount of Debentures issued under the Indenture; and (b) except as otherwise
limited herein, to engage in only those other activities necessary, convenient
or incidental thereto, including such other activities specifically authorized
in this Declaration. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, mortgage or pledge any of its assets or at
any time while the Securities are outstanding, otherwise undertake (or permit to
be undertaken) any activity that would result in or cause the Trust not to be
classified for United States Federal income tax purposes as a grantor trust.
Section 3.06. Authority.
Subject to the limitations provided in this Declaration and to the specific
duties of the Property Trustee, the Regular Trustees shall have exclusive and
complete authority to carry out the purposes of the Trust. An action taken by
the Regular Trustees in accordance with their powers shall constitute the act of
and serve to bind the Trust and an action taken by the Property Trustee on
behalf of the Trust in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration.
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Section 3.07. Title to Property of the Trust.
Except as provided in Section 3.10 with respect to the Debentures and the
Property Account or unless 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
undivided beneficial interests in the assets of the Trust.
Section 3.08. Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, authority and duty to
cause the Trust, and shall cause the Trust, to engage in the following
activities:
(a) to issue Preferred Securities and Common Securities, in each case in
accordance with this Declaration; provided, however, that the Trust may issue no
more than one series of Preferred Securities and no more than one series of
Common Securities, and, provided further, that there shall be no interests in
the Trust other than the Securities and the issuance of Securities shall be
limited to a one-time, simultaneous issuance of both Preferred Securities and
Common Securities on the Closing Date;
(b) in connection with the issuance of the Preferred Securities, at the
direction of the Sponsor, to effect or cause to be effected the filings, and to
execute or cause to be executed, the documents, set forth in Section 3.13 and to
execute, deliver and perform on behalf of the Trust the Depositary Agreement;
(c) to acquire as trust assets Debentures with the proceeds of the sale of
the Preferred Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to all of the Debentures to be vested
in, and the Debentures to be held of record in the name of, the Property Trustee
for the benefit of the Holders of the Preferred Securities and the Common
Securities;
(d) if and to the extent that the Sponsor on behalf of the Trust has not
already done so, to cause the Trust to enter into the Underwriting Agreement and
such other agreements and arrangements as may be necessary or desirable in
connection with the sale of the Preferred Securities to the initial purchasers
thereof and the consummation thereof, and to take all action, and exercise all
discretion, as may be necessary or desirable in connection with the consummation
thereof;
(e) to give the Sponsor and the Property Trustee prompt written notice of
the occurrence of a Special Event; provided that the Regular Trustees shall
consult with the Sponsor and the Property Trustee before taking or refraining to
take any Ministerial Action in relation to a Special Event;
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(f) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including for the purposes
of (S) 316(c) of the Trust Indenture Act and with respect to Distributions,
voting rights, redemptions, and exchanges, and to issue relevant notices to
Holders of the Preferred Securities and Common Securities as to such actions and
applicable record dates;
(g) 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 3.10(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) 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;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give the certificate to the Property Trustee required by (S)
314(a)(4) of the Trust Indenture Act, which certificate may be executed by any
Regular Trustee;
(k) to incur expenses which are necessary or incidental to carrying out
any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and transfer
agent for the Securities, the Regular Trustees hereby initially appointing the
Property Trustee for such purposes;
(m) to take all actions and perform such duties as may be required of the
Regular Trustee pursuant to the terms of the Securities set forth in Exhibits B
and C hereto;
(n) to take all actions which 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 Securities or
to enable the Trust to effect the purposes for which the Trust has been created;
(o) to take all actions, not inconsistent with this Declaration or with
applicable law, which the Regular Trustees determine in their discretion to be
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necessary or desirable in carrying out the purposes of the Trust and the
activities of the Trust as set out in this Section 3.08, including, but not
limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States Federal income
tax purposes as a grantor trust; and
(iii) cooperating with the Sponsor to ensure that the Debentures will be
treated as indebtedness of the Sponsor for United States Federal income tax
purposes;
(p) to take all actions necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
to be duly prepared and filed by the Regular Trustees, on behalf of the Trust,
and to comply with any requirements imposed by any taxing authority on holders
of instruments treated as indebtedness for United States Federal income tax
purposes;
(q) subject to the requirements of Rule 3a-7 (if the Trust is excluded
from the definition of an Investment Company solely by reason of Rule 3a-7) and
(S) 317(b) of the Trust Indenture Act, to appoint one or more Paying Agents in
addition to the Property Trustee; and
(r) 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.
The Regular Trustees must exercise the powers set forth in this Section
3.08 in a manner which is consistent with the purposes and functions of the
Trust set out in Section 3.05, and the Regular Trustees shall not take any
action which is inconsistent with the purposes and functions of the Trust set
forth in Section 3.05.
Subject to this Section 3.08, the Regular Trustees shall have none of the
powers or any of the authority of the Property Trustee set forth in Section
3.10.
The Regular 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.
Any expenses incurred by the Regular Trustees pursuant to this Section 3.08
shall be reimbursed by the Sponsor.
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Section 3.09. Prohibition of Actions by the Trust and the Trustees.
The Trust shall not, and the Trustees (including the Property Trustee)
shall cause the Trust not to, engage in any activity other than in connection
with the purposes of the Trust or other than as required or authorized by this
Declaration. In particular, the Trust shall not and the Trustees (including the
Property Trustee) shall not cause the Trust to:
(a) invest any proceeds received by the Trust from holding the Debentures
but shall promptly distribute from the Property Account all such proceeds to
Holders of Securities pursuant to the terms of this Declaration and of the
Securities;
(b) acquire any assets other than as expressly provided herein;
(c) possess Trust property for other than a Trust purpose;
(d) make any loans, other than loans represented by the Debentures;
(e) possess any power or otherwise act in such a way as to vary the Trust
assets or the terms of the Securities in any way whatsoever, except as otherwise
expressly provided herein;
(f) issue any securities or other evidences of beneficial ownership of, or
beneficial interests in, the Trust other than the Securities;
(g) incur any indebtedness for borrowed money;
(h) (i) direct the time, method and place of conducting any proceeding for
any remedy available to the Debenture Trustee or exercising any trust or power
conferred upon the Debenture Trustee with respect to the Debentures, (ii) waive
any past default that is waivable under Section 6.06 of the Indenture, or (iii)
exercise any right to rescind or annul a declaration of acceleration of the
maturity of the principal of the Debentures, without, in each case, obtaining
the prior approval of the Holders of a Majority in liquidation amount of all
outstanding Securities;
(i) revoke any action previously authorized or approved by a vote of the
Holders of Preferred Securities except by subsequent vote of such Holders;
(j) consent to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required, unless in the case of
this clause (j) the Property Trustee shall have received an Opinion of Counsel
experienced in such matters to the effect that such amendment,
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modification or termination will not cause more than an insubstantial risk that
for United States Federal income tax purposes the Trust will not be classified
as a grantor trust;
(k) take or consent to any action that would result in the placement of a
lien, pledge, charge, mortgage or other encumbrance on any of the Trust
property;
(l) vary the investment (within the meaning of Treasury Regulation Section
301.7701-4(c)) of the Trust or of the Holders of Securities; or
(m) after the date hereof, enter into any contract or agreement (other
than any depositary agreement or any agreement with any securities exchange or
automated quotation system) that does not expressly provide that the Holders of
Preferred Securities, in their capacities as such, have limited liability (in
accordance with the provisions of the Business Trust Act) for the liabilities
and obligations of the Trust, which express provision shall be in substantially
the following form, "The Holders of the Preferred Securities, in their
capacities as such, shall not be personally liable for any liabilities or
obligations of the Trust arising out of this Agreement, and the parties hereto
hereby agree that the Holders of the Preferred Securities, in their capacities
as such, shall be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware."
Section 3.10. Powers and Duties of the Property Trustee.
(a) The legal title to the 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 Securities. The right, title and interest of the Property Trustee to the
Debentures shall vest automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with Article 5. Such vesting and
cessation of title shall be effective whether or not conveyancing documents with
regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and interest
in the Debentures to the Regular Trustees or, if the Property Trustee does not
also act as the Delaware Trustee, the Delaware Trustee.
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing bank account
(the "Property Account") in the name of and under the exclusive control of the
Property Trustee on behalf of the Holders of the Securities and on the receipt
of payments of funds made in respect of the Debentures held by the Property
Trustee, deposit such funds into the Property Account and, without any
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further acts of the Property Trustee or the Regular Trustees, promptly make
payments to the Holders of the Preferred Securities and Common Securities from
the Property Account in accordance with Section 6.01. Funds in the Property
Account shall be held uninvested, and without liability for interest thereon,
until disbursed in accordance with this Declaration. The Property Account shall
be an account which is maintained with a banking institution whose long term
unsecured indebtedness is rated by a "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act, at least investment grade;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect promptly the redemption of the Preferred Securities and
the Common Securities to the extent the Debentures are redeemed or mature;
(iii) upon notice of distribution issued by the Regular Trustees in
accordance with the terms of the Preferred Securities and the Common Securities,
engage in such ministerial activities as shall be necessary or appropriate to
effect promptly pursuant to terms of the Securities the distribution of
Debentures to Holders of Securities upon the election of the Holder of Common
Securities to distribute the Debentures to Holders of Securities and dissolve
the Trust; and
(iv) have the legal power to exercise all of the rights, powers and
privileges of a holder of the Debentures under the Indenture and, if an Event of
Default occurs and is continuing, the Property Trustee, subject to Section
3.10(e), shall for the benefit of the Holders of the Securities, enforce its
rights as holder of the Debentures under the Indenture, subject to the rights of
the Holders of the Preferred Securities pursuant to the terms of this
Declaration, the Business Trust Act and the Trust Indenture Act.
(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 Securities set forth in Exhibits B and C hereto.
(e) If an Event of Default has occurred and is continuing, then the
Holders of a Majority in liquidation amount of the Preferred Securities will
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee or to direct the exercise of
any trust or power conferred upon the Property Trustee under the Declaration,
including the right to direct the Property Trustee to exercise the remedies
available to it as a holder of the Debentures. If the Property Trustee fails to
enforce its rights under the Debentures, a Holder of Preferred Securities, to
the extent permitted by
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applicable law, may, after a period of 30 days has elapsed since such Holder's
written request to the Property Trustee to enforce such rights, institute a
legal proceeding directly against the Sponsor to enforce the Property Trustee's
rights under the Debentures without first instituting any legal proceeding
against the Property Trustee or any other Person; provided further, that, if an
Event of Default has occurred and is continuing and such event is attributed to
the failure of the Sponsor to pay interest or principal on the Debentures on the
date such interest or principal is otherwise payable (or in the case of
redemption, on the redemption date), then a Holder of Preferred Securities may
directly institute a proceeding for enforcement of payment to such Holder of the
principal of or interest on the Debentures having a principal amount equal to
the aggregate liquidation amount of the Preferred Securities of such Holder (a
"Holder Direct Action") on or after the respective due date specified in the
Debentures. In connection with such Holder Direct Action, the Sponsor will be
subrogated to the rights of such Holder of Preferred Securities to the extent of
any payment made by the Sponsor to such Holders of Preferred Securities in such
Holder Direct Action. Except as provided in the preceding sentences, the Holders
of Preferred Securities will not be able to exercise directly any other remedy
available to the Holders of the Debentures.
(f) All moneys deposited in the Property Account and all Debentures held
by the Property Trustee for the benefit of the Holders of the Securities will
not be subject to any right, charge, security interest, lien or claim of any
kind in favor of, or for the benefit of the Property Trustee or its agents or
their creditors.
(g) The Property Trustee shall, within 90 days after the occurrence of a
default with respect to the Securities actually known to a Responsible Officer
of the Property Trustee, transmit by mail, first class postage prepaid, to the
holders of the Securities, as their names and addresses appear upon the
register, notice of such defaults with respect to the Securities known to the
Property Trustee, unless such defaults shall have been cured before the giving
of such notice (the term "defaults" for the purposes of this Section 3.10(g)
being hereby defined to be an Indenture Event of Default, not including any
periods of grace provided for in the Indenture and irrespective of the giving of
any notice provided therein); provided, that, except in the case of default in
the payment of the principal of (or premium, if any) or interest on any of the
Debentures, the Property Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers, of the Property Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders of the Securities. The Property Trustee shall not be deemed to have
knowledge of any default, except (i) a default in the payment of principal,
premium or interest on the Debentures or (ii) any default as to which the
Property Trustee shall have received written notice or a
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Responsible Officer charged with the administration of this Declaration shall
have obtained written notice.
(h) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds thereof
distributed to the Holders of Securities pursuant to the terms of the
Securities; or
(ii) a Successor Property Trustee has been appointed and accepted that
appointment in accordance with Article 5.
(i) The Property Trustee shall act as paying agent in respect of the
Common Securities and, if the Preferred Securities are not in book entry only
form, the Preferred Securities and, subject to Section 3.08(q), 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 the
Preferred Securities. Any such Paying Agent shall comply with (S) 317(b) of the
Trust Indenture Act. Any Paying Agent may be removed by the Property Trustee,
after consultation with the Regular Trustees, at any time and a successor Paying
Agent or additional Paying Agents may be appointed at any time by the Property
Trustee, subject to Section 3.08(q).
(j) The Property Trustee shall give prompt written notice to the Holders
of the Securities of any notice received by it from Houston Industries of its
election to defer payments of interest on the Debentures by extending the
interest payment period with respect thereto.
(k) Subject to this Section 3.10, the Property Trustee shall have none of
the powers or the authority of the Regular Trustees set forth in Section 3.08.
(l) The Property Trustee shall exercise the powers, duties and rights set
forth in this Section 3.10 and Section 3.12 in a manner which is consistent with
the purposes and functions of the Trust set out in Section 3.05, and the
Property Trustee shall not take any action which is inconsistent with the
purposes and functions of the Trust set forth in Section 3.05.
Section 3.11. Delaware Trustee.
Notwithstanding any other provision of this Declaration other than Section
5.01(a)(3), 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 Trustees described in this Declaration. Except as set forth in Section
5.01(a)(3), the Delaware Trustee shall be a Trustee for the sole and limited
purpose of
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fulfilling the requirements of (S) 3807(a) of the Business Trust Act. No implied
covenants or obligations shall be read into this Declaration against the
Delaware Trustee.
Section 3.12. Certain Rights and Duties of the Property Trustee.
(a) The Property Trustee, before the occurrence of an Event of Default and
after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Declaration, and no implied covenants shall be read into this Declaration
against the Property Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.06), 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 an Event of Default and after the curing or
waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the 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; provided, however, that 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
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Trustee, unless it shall be proved that the Property Trustee was negligent in
ascertaining the pertinent facts;
(iii) 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 Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee hereunder or under
the Indenture, or exercising any trust or power conferred upon the Property
Trustee under this Declaration; and
(iv) no provision of this Declaration shall require the Property Trustee to
expend or risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that the repayment of
such funds or liability is not reasonably assured to it under the terms of this
Declaration or adequate indemnity against such risk or liability is not
reasonably assured to it.
(c) Subject to the provisions of Section 3.12(a) and (b):
(i) whenever in the administration of this Declaration, the Property
Trustee shall deem it desirable that a matter be proved or established prior to
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 and, if the Trust is excluded from the definition of
Investment Company solely by means of Rule 3a-7, subject to the requirements of
Rule 3a-7, request and rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor or the Regular
Trustees;
(ii) the Property Trustee (A) may consult with counsel (which may be
counsel to the Sponsor or any of its Affiliates and may include any of its
employees) selected by it in good faith and with due care 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 reliance thereon and in accordance with
such advice and opinion and (B) shall have the right at any time to seek
instructions concerning the administration of this Declaration from any court of
competent jurisdiction;
(iii) the Property 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 Property Trustee shall not be responsible for
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any misconduct or negligence on the part of any agent or attorney appointed by
it in good faith and with due care;
(iv) 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 such Holder shall have offered to the Property
Trustee security and indemnity satisfactory to the Property Trustee against the
costs, expenses (including attorneys' fees and expenses) and liabilities that
might be incurred by it in complying with such request or direction; provided
that nothing contained in this clause (iv) shall relieve the Property Trustee of
the obligation, upon the occurrence of an Event of Default (which has not been
cured or waived) to exercise such of the rights and powers vested in it by this
Declaration, and to use the same degree of care and skill in this exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs; and
(v) any action taken by the Property Trustee or its agents hereunder shall
bind the Holders of the 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.
(d) The recitals contained herein shall be taken as the statements of the
Sponsor, and the Property Trustee assumes no responsibility for the
correctness of the same. The Property Trustee makes no representations as
to the validity or sufficiency of this Declaration.
(e) The Property Trustee, in its individual or any other capacity, may become
the owner or pledgee of Preferred Securities and may otherwise deal with
the Sponsor with the same rights it would have if it were not the Property
Trustee.
(f) All moneys received by the Property Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required by law. The Property Trustee shall be under no liability for
interest on any moneys received by it hereunder except such as it may agree
in writing to pay thereon.
(g) (i) The Sponsor covenants and agrees to pay to the Property Trustee from
time to time, and the Property Trustee shall be entitled to, such
compensation as the Sponsor and the Property Trustee shall from time to
time agree in writing (which shall not be limited by any provision of law
in regard to the compensation of a Property Trustee of an express trust)
for all services rendered by it in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Property Trustee, and the Sponsor will pay or reimburse
the Property Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Property Trustee in
accordance with any of the provisions of this Declaration (including the
reasonable compensation and the reasonable expenses and disbursements of
its counsel and of all persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad
faith. The Sponsor also covenants to indemnify each of the Property Trustee
or any predecessor Property Trustee and their officers, agents, directors
and employees for, and to hold them harmless against, any and all loss,
liability, damage, claim or expense including taxes (other than taxes based
upon, measured by or determined by the income of the Property Trustee)
incurred without negligence or bad faith on the part of the Property
Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses
of defending itself against any claim (whether asserted by the Sponsor, any
Holder or any other Person) of liability in the premises. The provisions of
this subpart (g) of this Section 3.12 shall survive the termination of this
Declaration and resignation or removal of the Property Trustee.
(ii) The obligations of the Sponsor under this subpart (g) of this Section
3.12 to compensate and indemnify the Property Trustee and to pay or
reimburse the Property 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 Property Trustee as
such, except funds held in trust for the benefit of the holders of
particular Securities.
(h) Except as otherwise provided in this Section 3.12, whenever in the
administration of the provisions of this Declaration the Property Trustee
shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting to take any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of
the Property Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Property Trustee and such
certificate, in the absence of negligence or bad faith on the part of the
Property Trustee, shall be full warrant to the Property Trustee for any
action taken, suffered or omitted to be taken by it under the provisions of
this Declaration upon the faith thereof.
(i) Whether or not expressly stated, every provision of this Declaration
pertaining to the Property Trustee shall be subject to this Section 3.12.
Section 3.13. Registration Statement and Related Matters.
In accordance with the Original Declaration, Houston Industries, as the
sponsor of the Trust, was authorized (i) to file with the Commission and
execute, in each case on behalf of the Trust, (a) the Registration Statement on
Form S-3 (File No. 333-______) (the "1933 Act Registration Statement") including
any pre-effective or post-effective amendments thereto, relating to the
registration under the Securities Act of the Preferred Securities and (b) if
Houston Industries shall deem it desirable, a Registration Statement on Form 8-A
or other appropriate form (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities under Section 12 of the Exchange Act;
(ii) if Houston Industries shall deem it desirable, to prepare and file with the
New York Stock Exchange or one or more national securities exchange(s) (each, an
"Exchange") or the National Association of Securities Dealers, Inc. (the "NASD")
and execute on behalf of the
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Trust a listing application or applications and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on any such Exchange
or the NASD's Nasdaq National Market ("Nasdaq"); (iii) to file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and all other papers
and documents as Houston Industries, on behalf of the Trust, may deem necessary
or desirable to register the Preferred Securities under the securities or "Blue
Sky" laws of such jurisdictions as Houston Industries on behalf of the Trust,
may deem necessary or desirable; and (iv) to negotiate the terms and execute on
behalf of the Trust the Underwriting Agreement. In the event that any filing
referred to in clauses (i)-(iii) above is required by the rules and regulations
of the Commission, any Exchange, Nasdaq, the NASD or state securities or blue
sky laws, to be executed on behalf of the Trust by one or more Trustees, the
Regular Trustees, in their capacities as Trustees of the Trust, and Houston
Industries are hereby authorized and directed to join in any such filing and to
execute on behalf of the Trust any and all of the foregoing. In connection with
all of the foregoing, Houston Industries and each Trustee, solely in its
capacity as Trustee of the Trust, have constituted and appointed, and hereby
confirm the appointment of, Hugh Rice Kelly, R. Steve Letbetter and Stephen W.
Naeve and each of them, as his, her or its, as the case may be, true and lawful
attorneys-in-fact, and agents, with full power of substitution and
resubstitution, for Houston Industries or such Trustee or in Houston Industries'
or such Trustee's name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to the 1933 Act
Registration Statement and the 1934 Act Registration Statement and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as Houston Industries or such Trustee might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their or his or her substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
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Section 3.14. Filing of Amendments to Certificate of Trust.
The Certificate of Trust as filed with the Secretary of State of the State
of Delaware on January 11, 1999 is attached hereto as Exhibit A. On or after
the date of execution of this Declaration, the Trustees shall cause the filing
with the Secretary of State of the State of Delaware of such amendments, if any,
to the Certificate of Trust as the Trustees shall deem necessary or desirable.
Section 3.15. Execution of Documents by the Regular Trustees.
Except as otherwise required by the Business Trust Act with respect to the
Certificate of Trust or otherwise and except as provided in Sections 7.01(c) and
9.08, any Regular Trustee, or if there is only one, such Regular Trustee is
authorized to execute and deliver on behalf of the Trust any documents which the
Regular Trustees have the power and authority to execute or deliver pursuant to
this Declaration.
Section 3.16. Trustees Not Responsible for Recitals or Issuance of
Securities.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as
to the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
Section 3.17. Duration of the Trust.
The Trust, absent dissolution pursuant to the provisions of Article 8
hereof, shall continue without dissolution until ___________, ____.
Section 3.18. Mergers.
(a) The Trust may not merge with or into, convert into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, except as described in
Section 3.18(b) and (c) of this Declaration or Section 3 of Exhibit B or Exhibit
C.
(b) The Trust may, at the request of the Sponsor, with the consent of the
Regular Trustees or, if there are more than two, a majority of the Regular
Trustees and without the consent of the Holders, the Delaware Trustee or the
Property Trustee, merge with or into, convert into, consolidate, amalgamate, or
be replaced by, or convey, transfer or lease its properties and assets as an
entirety or
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substantially as an entirety to, a trust organized as such under the laws of any
State; provided that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust under the
Securities and this Declaration; or
(B) substitutes for the Securities other securities having substantially
the same terms as the Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Securities rank with respect to
Distributions and payments upon liquidation, redemption and otherwise;
(ii) the Sponsor expressly appoints a trustee of the Successor Entity that
possesses the same powers and duties as the Property Trustee as the holder of
the Debentures;
(iii) the Successor Securities are listed, or any Successor Securities will
be listed upon notification of issuance, on any national securities exchange or
with another organization in which the Preferred Securities are then listed or
quoted, if any;
(iv) if the Preferred Securities (including any Successor Securities) are
rated by any nationally recognized statistical rating organization prior to such
transaction, such merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred Securities (including
any Successor Securities), or if the Debentures are so rated, the Debentures, to
be downgraded by any nationally recognized statistical rating organization;
(v) such merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders (including the holders of any Successor
Securities) in any material respect (other than with respect to any dilution of
such Holders' interests in the new entity);
(vi) such Successor Entity has a purpose substantially identical to that of
the Trust;
(vii) prior to such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Sponsor has received an Opinion
of Counsel experienced in such matters that:
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(A) such merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders (including the holders of any Successor
Securities) in any material respect (other than with respect to any dilution of
the Holders' interest in the new entity);
(B) following such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor the Successor
Entity will be required to register as an Investment Company; and
(C) following such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Trust (or the Successor Entity)
will continue to be classified as a grantor trust for United States Federal
income tax purposes;
(viii) the Sponsor or any permitted successor or assignee owns all of the
common securities of such Successor Entity and guarantees the obligations of
such Successor Entity under the Successor Securities at least to the extent
provided by the Preferred Guarantee; and
(ix) there shall have been furnished to the Property Trustee an Officers'
Certificate and an Opinion of Counsel, each to the effect that all conditions
precedent in this Declaration to such transaction have been satisfied.
(c) Notwithstanding Section 3.18(b), the Trust shall not, except with the
consent of Holders of 100% in liquidation amount of the Securities, consolidate,
amalgamate, merge with or into, convert into, or be replaced by, or convey,
transfer or lease its properties and assets as an entirety or substantially as
an entirety to, any other Person or permit any other Person to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, conversion, replacement, conveyance, transfer or lease
would cause the Trust or the Successor Entity not to be classified as a grantor
trust for United States Federal income tax purposes or would cause the Holders
of the Securities not to be treated as owning an undivided interest in the
Debentures.
Section 3.19. Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Securities or the property of the Trust or of such other obligor or their
creditors, the Property
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Trustee (irrespective of whether any Distributions on the Securities shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Property Trustee shall have made any demand on the
Trust for the payment of any past due Distributions) shall be entitled and
empowered, to the fullest extent permitted by law, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Securities (or, if the Securities are
original issue discount Securities, such portion of the liquidation amount as
may be specified in the terms of such Securities) and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or compensation affecting the
Securities or the rights of any Holder thereof to authorize the Property Trustee
to vote in respect of the claim of any Holder in any such proceeding.
ARTICLE 4
Sponsor
Section 4.01. Purchase of Common Securities by the Sponsor.
On the Closing Date, the Sponsor will purchase all of the Common Securities
issued by the Trust at the same time as the Preferred Securities to be issued on
such date are issued, such purchase to be in an amount equal to 3% of the total
capital of the Trust.
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Section 4.02. Expenses.
(a) In connection with the purchase of the Debentures by the Trust, the
Sponsor, in its capacity as Sponsor and not as a Holder, shall be responsible
for and shall pay for all debts and obligations (other than with respect to the
Securities) and all costs and expenses of the Trust (including, but not limited
to, costs and expenses relating to the organization of the Trust, the issuance
of the Preferred Securities to initial purchasers thereof, the fees and expenses
(including reasonable counsel fees and expenses) of the Trustees (including any
amounts payable under Article 10), the costs and expenses relating to the
operation of the Trust, including, without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the disposition of Trust assets).
(b) In connection with the purchase of the Debentures by the Trust, the
Sponsor, in its capacity as Sponsor and not as a Holder, will pay any and all
taxes (other than United States withholding taxes attributable to the Trust or
its assets) and all liabilities, costs and expenses with respect to such taxes
of the Trust.
(c) The Sponsor's obligations under this Section 4.02 shall be for the
benefit of, and shall be enforceable by, any Person to whom any such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice hereof. Any such Creditor may enforce the
Sponsor's obligations under this Section 4.02 directly against the Sponsor and
the Sponsor irrevocably waives any right or remedy to require that any such
Creditor take any action against the Trust or any other Person before proceeding
against the Sponsor.
(d) The Sponsor shall be subrogated to all (if any) rights of the Trust in
respect of any amounts paid to any Creditor by the Sponsor under this Section
4.02.
ARTICLE 5
Trustees
Section 5.01. Number of Trustees; Qualifications.
(a) The number of Trustees initially shall be five (5). At any time (i)
before the issuance of the Securities, the Sponsor may, by written instrument,
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increase or decrease the number of, and appoint, remove and replace, the
Trustees, and (ii) after the issuance of the Securities the number of Trustees
may be increased or decreased solely by, and Trustees may be appointed, removed
or replaced solely by, vote of Holders of Common Securities representing a
Majority in liquidation amount of the Common Securities voting as a class;
provided that in any case:
(1) the number of Trustees shall be at least five (5) unless the Trustee
that acts as the Property Trustee also acts as the Delaware Trustee, in which
case the number of Trustees shall be at least four (4);
(2) at least a majority of the Trustees shall at all times be officers,
directors or employees of Houston Industries;
(3) if required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be either a natural person who is a resident of the State of
Delaware or, if not a natural person, an entity which has its principal place of
business in the State of Delaware and otherwise is permitted to act as a Trustee
hereunder under the laws of the State of Delaware, except that if the Property
Trustee has its principal place of business in the State of Delaware and
otherwise is permitted to act as a Trustee hereunder under the laws of the State
of Delaware, then the Property Trustee shall also be the Delaware Trustee and
Section 3.11 shall have no application; and
(4) there shall at all times be a Property Trustee hereunder which shall
satisfy the requirements of Section 5.01(c).
Each Trustee shall be either a natural person at least 21 years of age or a
legal entity which shall act through one or more duly appointed representatives.
(b) The initial Regular Trustees shall be:
Linda Geiger, Paul Castanon and William T. Massar
c/o HOUSTON INDUSTRIES INCORPORATED
1111 Louisiana
Houston, Texas 77002
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(c) There shall at all times be one Trustee which shall act as the Property
Trustee. In order to act as the Property Trustee hereunder, such Trustee shall:
(i) not be an Affiliate of the Sponsor;
(ii) be a corporation or national banking association 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, national
banking association 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 $50,000,000, and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation or national
banking association 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 5.01(c)(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; and
(iii) if the Trust is excluded from the definition of an Investment Company
solely by reason of Rule 3a-7 and to the extent Rule 3a-7 requires a trustee
having certain qualifications to hold title to the "eligible assets" (as defined
in Rule 3a-7) of the Trust, the Property Trustee shall possess those
qualifications.
If at any time the Property Trustee shall cease to satisfy the requirements
of clauses (i)-(iii) above, the Property Trustee shall immediately resign in the
manner and with the effect set out in Section 5.02(d). If the Property Trustee
has or shall acquire any "conflicting interest" within the meaning of (S) 310(b)
of the Trust Indenture Act, the Property Trustee and the Holders of the Common
Securities (as if such Holders were the obligor referred to in (S) 310(b) of the
Trust Indenture Act) shall in all respects comply with the provisions of (S)
310(b) of the Trust Indenture Act. The Preferred Guarantee and the Indenture
shall be deemed to be specifically described in this Declaration for the
purposes of clause (i) of the first proviso contained in (S) 310(b) of the Trust
Indenture Act.
The initial Trustee which shall serve as the Property Trustee is The Bank
of New York, a New York banking corporation, whose address is as set forth in
Section 14.01(b).
(d) The initial Trustee which shall serve as the Delaware Trustee is The
Bank of New York (Delaware), a Delaware banking corporation, whose address is as
set forth in Section 14.01(c).
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(e) Any action taken by the Holders of Common Securities pursuant to this
Article 5 shall be taken at a meeting of the Holders of Common Securities
convened for such purpose or by written consent as provided in Section 12.02.
(f) No amendment may be made to this Section 501 which would change any
rights with respect to the number, existence or appointment and removal of
Trustees, except with the consent of each Holder of Common Securities.
Section 5.02. Appointment, Removal and Resignation of the Trustees.
(a) Subject to Section 5.02(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of the Securities, by written instrument executed
by the Sponsor; and
(ii) after the issuance of the Securities by vote of the Holders of a
Majority in liquidation amount of the Common Securities voting as a class.
(b) (i) The Trustee that acts as the Property Trustee shall not be removed
in accordance with Section 5.02(a) until a successor Trustee possessing the
qualifications to act as the Property Trustee under Section 5.01(c) (a
"Successor Property Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Property Trustee
and delivered to the Regular Trustees, the Sponsor and the Property Trustee
being removed; and
(ii) the Trustee that acts as the Delaware Trustee shall not be removed in
accordance with Section 5.02(a) until a successor Trustee possessing the
qualifications to act as the Delaware Trustee under Section 5.01(a)(3) (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees, the Sponsor and the Delaware Trustee
being removed.
(c) A Trustee appointed to office shall hold such office until his
successor shall have been appointed or until his death, removal or resignation.
(d) Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument (a "Resignation Request") in writing
signed by the Trustee and delivered to the Sponsor and the Trust, which
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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 until:
(A) a Successor Property Trustee has been appointed and has accepted such
appointment by instrument executed by such Successor Property Trustee and
delivered to the Regular Trustees, the Sponsor and the resigning Property
Trustee; or
(B) if the Trust is excluded from the definition of an Investment Company
solely by reason of Rule 3a-7, until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to the Holders of the
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 Regular Trustees, the Sponsor and the resigning
Delaware Trustee.
(e) If no Successor Property Trustee or Successor Delaware Trustee shall
have been appointed and accepted appointment as provided in this Section 5.02
within 60 days after delivery of a notice of removal or a Resignation Request,
the Property Trustee or Delaware Trustee being removed or resigning as the case
may be may petition, at the expense of the Sponsor, any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee, as the case may be. 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.
Section 5.03. Vacancies among the Trustees.
If a Trustee ceases to hold office for any reason and the number of Trustees is
not reduced pursuant to Section 5.01 or if the number of Trustees is increased
pursuant to Section 5.01, a vacancy shall occur. A resolution certifying the
existence of such vacancy by a majority of the Regular Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with the requirements of this
Article 5.
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Section 5.04. Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee, or
any one of them, shall not operate to dissolve, terminate or annul the Trust.
Whenever a vacancy in the number of Regular Trustees shall occur until such
vacancy is filled as provided in this Article 5, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
Section 5.05. Meetings.
Meetings of the Regular Trustees shall be held from time to time upon the call
of any Regular Trustee. Regular meetings of the Regular Trustees may be held at
a time and place fixed by resolution of the Regular Trustees. Notice of any in-
person meeting of the Regular Trustees shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 48 hours before such meeting. Notice of any telephonic
meeting of the Regular Trustees or any committee thereof shall be hand delivered
or otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 24 hours before such meeting. Notices shall
contain a brief statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person or by telephone) of a Regular Trustee
at a meeting shall constitute a waiver of notice of such meeting except where a
Regular Trustee attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has not been lawfully
called or convened. Unless otherwise provided in this Declaration, any action
of the Regular Trustees may be taken at a meeting by vote of a majority of the
Regular Trustees present (whether in person or by telephone) and eligible to
vote with respect to such matter, provided that a Quorum is present, or without
a meeting by the unanimous written consent of the Regular Trustees.
Section 5.06. Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purpose of executing any registration statement or amendment thereto or
other document or schedule filed with the Commission or making any other
governmental filing (including, without limitation, the filings referred to in
Section 3.13).
(b) The Regular Trustees shall have power to delegate from time to time to
such of their number or to officers of the Trust the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the
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Regular Trustees or otherwise as the Regular Trustees may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of the Trust, as set forth herein.
Section 5.07. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee or any
Regular Trustee that is not a natural person, as the case may be, may be merged
or converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which the Property Trustee or the
Delaware Trustee or the Regular Trustees, as the case may be, shall be a party,
or any Person succeeding to all or substantially all of the corporate trust
business of the Property Trustee or the Delaware Trustee or the Regular Trustee,
as the case may be, shall be the successor of the Property Trustee or the
Delaware Trustee or the Regular Trustees, as the case may be, hereunder,
provided that such Person shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE 6
Distributions
Section 6.01. Distributions.
Holders shall receive periodic distributions, redemption payments and
liquidation distributions in accordance with the applicable terms of the
relevant Holder's Securities as set forth in Exhibits B and C hereto
("Distributions"). If and to the extent that Houston Industries makes a payment
of interest (including Additional Interest (as defined in the Indenture)),
premium and/or principal on the Debentures held by the Property Trustee (the
amount of any such payment being a "Payment Amount"), the Property Trustee shall
and is directed, to the extent funds are available for that purpose, to promptly
make a Distribution of the Payment Amount to Holders in accordance with the
terms of the Securities as set forth in Exhibits B and C hereto.
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ARTICLE 7
Issuance of the Securities
Section 7.01. General Provisions Regarding the Securities.
(a) The Regular Trustees shall issue on behalf of the Trust Securities in
fully registered form representing undivided beneficial interests in the assets
of the Trust in accordance with Section 7.01(b) and for the consideration
specified in Section 3.03.
(b) The Regular Trustees shall issue on behalf of the Trust one class of
preferred securities representing preferred undivided beneficial interests in
the assets of the Trust having such terms as are set forth in Exhibit B (the
"Preferred Securities") hereto, which terms are incorporated by reference in,
and made a part of, this Declaration as if specifically set forth herein, and
one class of common securities representing common undivided beneficial
interests in the assets of the Trust having such terms as are set forth in
Exhibit C (the "Common Securities") hereto, which terms are incorporated by
reference in, and made a part of, this Declaration as if specifically set forth
herein. The Trust shall have no securities or other interests in the assets of
the Trust other than the Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by the Regular
Trustees (or if there are more than two Regular Trustees by any two of the
Regular Trustees). Such signatures may be the manual or facsimile signatures of
the present or any future Regular Trustee. Typographical and other minor errors
or defects in any such reproduction of any such signature shall not affect the
validity of any Certificate. In case any Regular Trustee who shall have signed
any of the Certificates shall cease to be such Regular Trustee before the
Certificate so signed shall be delivered by the Trust, such Certificate
nevertheless may be delivered as though the person who signed such Certificate
had not ceased to be such Regular Trustee; and any Certificate may be signed on
behalf of the Trust by such persons as, at the actual date of the execution of
such Certificate, shall be the Regular Trustees, although at the date of the
execution and delivery of this Declaration any such person was not a Regular
Trustee. Certificates shall be typewritten, printed, lithographed or engraved
or may be produced in any other manner as is reasonably acceptable to the
Regular Trustees, as evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements as the Regular Trustees may deem appropriate, or as may
be required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange or automated
quotation system on which Securities may be
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listed or traded, or with any rule or regulation of the Clearing Agency, or to
conform to usage. Pending the preparation of definitive Certificates, the
Regular Trustees on behalf of the Trust may execute temporary Certificates
(printed, lithographed or typewritten), in substantially the form of the
definitive Certificates in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Certificates, all as may be determined by the Regular Trustees. Each temporary
Certificate shall be executed by the Regular Trustees (or, if there are more
than two Regular Trustees, by any two of the Regular Trustees) on behalf of the
Trust upon the same conditions and in substantially the same manner, and with
like effect, as definitive Certificates. Without unnecessary delay, the Regular
Trustees on behalf of the Trust will execute and furnish definitive Certificates
and thereupon any or all temporary Certificates may be surrendered to the
transfer agent and registrar in exchange therefor (without charge to the
Holders). Each Preferred Security Certificate whether in temporary or definitive
form shall be countersigned, upon receipt of a written order of the Trust signed
by one Regular Trustee, by the manual signature of an authorized signatory of
the Person acting as registrar and transfer agent for the Preferred Securities,
which shall initially be the Property Trustee.
(d) The consideration received by the Trust for the issuance of the
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 Securities as provided in this Declaration, the
Securities so issued shall be deemed to be validly issued, fully paid and non-
assessable.
(f) Every Person, by virtue of having become a Holder or a 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.
(g) Upon issuance of the Securities as provided in this Declaration, the
Regular Trustees on behalf of the Trust shall return to Houston Industries the
$10 constituting initial trust assets as set forth in the Original Declaration.
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ARTICLE 8
Dissolution of the Trust
Section 8.01. Dissolution of the Trust.
The Trust shall dissolve:
(i) when all of the Securities shall have been called for redemption and the
amounts necessary for redemption thereof shall have been paid to the Holders of
the Securities in accordance with the terms of the Securities; or
(ii) when all of the Debentures shall have been distributed to the Holders of
the Securities in exchange for all of the Securities in accordance with the
terms of the Securities;
(iii) upon the expiration of the term of the Trust as set forth in Section
3.17; or
(iv) upon a decree of judicial dissolution.
Upon dissolution and the completion of the winding up of the affairs of the
Trust, the Trust and this Declaration shall terminate when a certificate of
cancellation is filed by the Trustees with the Secretary of State of the State
of Delaware. The Trustees shall so file such a certificate as soon as
practicable after the occurrence of an event referred to in this Section 8.01.
The provisions of Sections 3.12 and 4.02 and Article 10 shall survive the
termination of the Trust and this Declaration.
ARTICLE 9
Transfer of Interests
Section 9.01. Transfer of Securities.
(a) 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 Securities. To the fullest extent permitted by law, any transfer or
purported transfer of any Security not made in accordance with this Declaration
shall be null and void.
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(b) Subject to this Article 9, Preferred Securities shall be freely
transferable.
(c) The Holder of the Common Securities may not transfer the Common
Securities except (a) in connection with transactions permitted under Section
10.01 of the Indenture, or (b) to the Sponsor or an Affiliate thereof in
compliance with applicable law (including the Securities Act and applicable
state securities and blue sky laws). To the fullest extent permitted by law,
any attempted transfer of the Common Securities other than as set forth in the
immediately preceding sentence shall be void.
Section 9.02. Transfer of Certificates.
The Regular Trustees shall provide for the registration of Certificates and of
transfers of Certificates, which will be effected without charge but only upon
payment (with such indemnity as the Regular Trustees may require) in respect of
any tax or other government charges which may be imposed in relation to it. Upon
surrender for registration of transfer of any Certificate, the Regular Trustees
shall cause one or more new Certificates to be issued in the name of the
designated transferee or transferees. Every Certificate surrendered for
registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Regular Trustees duly executed by the
Holder or such Holder's attorney duly authorized in writing. Each Certificate
surrendered for registration of transfer shall be canceled by the Regular
Trustees. A transferee of a Certificate shall be entitled to the rights and
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 9.03. 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 Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trustees shall have
actual or other notice thereof.
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Section 9.04. Book Entry Interests.
Unless otherwise specified in the terms of the Preferred Securities, the
Preferred Security Certificates, on original issuance, will be issued in the
form of one or more, fully registered, global 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 Preferred Security Beneficial Owner will
receive a definitive Preferred Security Certificate representing such Preferred
Security Beneficial Owner's interests in such Global Certificates, except as
provided in Section 9.07. Unless and until definitive, fully registered
Preferred Security Certificates (the "Definitive Preferred Security
Certificates") have been issued to the Preferred Security Beneficial Owners
pursuant to Section 9.07:
(i) the provisions of this Section 9.04 shall be in full force and effect;
(ii) 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 Preferred Securities and the sole
holder of the Global Certificates and, except as set forth herein in Section
9.07 or in Rule 3a-7 (if the Trust is excluded from the definition of an
Investment Company solely by reason of Rule 3a-7) with respect to the Property
Trustee, shall have no obligation to the Preferred Security Beneficial Owners;
(iii) to the extent that the provisions of this Section 9.04 conflict with any
other provisions of this Declaration, the provisions of this Section 9.04 shall
control; and
(iv) the rights of the 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 Preferred Security Beneficial Owners and the
Clearing Agency and/or the Clearing Agency Participants. DTC will make book
entry transfers among the Clearing Agency Participants and receive and transmit
payments of Distributions on the Global Certificates to such Clearing Agency
Participants, provided, that solely for the purposes of determining whether the
Holders of the requisite amount of Preferred Securities have voted on any matter
provided for in this Declaration, so long as definitive Preferred Security
Certificates have not been issued (pursuant to Section 9.07 hereof), the
Trustees may conclusively rely on, and shall be protected in relying on,
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any written instrument (including a proxy) delivered to the Trustees by the
Clearing Agency setting forth the Preferred Security Beneficial Owners' votes or
assigning the right to vote on any matter to any other Persons either in whole
or in part.
Section 9.05. Notices to Holders of Certificates.
Whenever a notice or other communication to the Holders is required to be
given under this Declaration, unless and until Definitive Preferred Security
Certificates shall have been issued pursuant to Section 9.07, the relevant
Trustees shall give all such notices and communications, specified herein to be
given to Holders of Preferred Securities, to the Clearing Agency and, with
respect to any Preferred Security Certificate registered in the name of a
Clearing Agency or the nominee of a Clearing Agency, the Trustees shall, except
in Rule 3a-7 (if the Trust is excluded from the definition of an Investment
Company solely by reason of Rule 3a-7) with respect to the Property Trustee,
have no notice obligations to the Preferred Security Beneficial Owners.
Section 9.06. Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as securities
depository with respect to the Preferred Securities, the Regular Trustees may,
in their sole discretion, appoint a successor Clearing Agency with respect to
the Preferred Securities.
Section 9.07. Definitive Preferred Securities Certificates.
If (i) a Clearing Agency elects to discontinue its services as securities
depository with respect to the Preferred Securities and a successor Clearing
Agency is not appointed within 90 days after such discontinuance pursuant to
Section 9.06 or (ii) the Regular Trustees elect after consultation with the
Sponsor to terminate the book entry system through the Clearing Agency with
respect to the Preferred Securities, then (x) Definitive Preferred Security
Certificates shall be prepared by the Regular Trustees on behalf of the Trust
with respect to such Preferred Securities and (y) upon surrender of the Global
Certificates by the Clearing Agency, accompanied by registration instructions,
the Regular Trustees shall cause Definitive Preferred Security Certificates to
be delivered to Preferred Security Beneficial Owners in accordance with the
instructions of the Clearing Agency. Neither the Trustees nor the Trust shall
be liable for any delay in delivery of such instructions and each of them may
conclusively rely on, and shall be protected in relying on, such instructions.
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Section 9.08. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and (b)
there shall be delivered to the Regular Trustees such security or indemnity as
may be required by them to keep each of them harmless, then in the absence of
notice that such Certificate shall have been acquired by a bona fide purchaser,
the Regular Trustees (or if there are more than two Regular Trustees by any two
of the Regular Trustees) on behalf of the Trust shall execute and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like denomination. In connection with the
issuance of any new Certificate under this Section 9.08, the Regular Trustees
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this section shall constitute conclusive evidence
of an ownership interest in the relevant Securities, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
ARTICLE 10
Limitation of Liability; Indemnification
Section 10.01. Exculpation.
(a) No 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
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration 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, in the
case of the Property Trustee, negligence) or willful misconduct with respect to
such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses or any other facts
pertinent to the
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existence and amount of assets from which Distributions to Holders of Securities
might properly be paid.
(c) Pursuant to (S) 3803(a) of the Business Trust Act, the Holders of
Securities, in their capacities as Holders, shall be entitled to the same
limitation of liability that is extended to stockholders of private corporations
for profit organized under the General Corporation Law of the State of Delaware.
Section 10.02. Indemnification.
(a) To the fullest extent permitted by applicable law, the Sponsor shall
indemnify and hold harmless each Indemnified Person from and against any loss,
liability, expense, damage or claim incurred by such Indemnified Person by
reason of any act or omission performed or omitted by such Indemnified Person in
good faith on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Declaration, except that no Indemnified Person shall
be entitled to be indemnified in respect of any loss, liability, expense, damage
or claim incurred by such Indemnified Person by reason of gross negligence (or,
in the case of the Property Trustee, negligence) or willful misconduct with
respect to such acts or omissions.
(b) The provisions of this Section 10.02 shall survive the termination of this
Declaration or the resignation or removal of any Trustee.
Section 10.03. Outside Business.
The Sponsor and any Trustee (in the case of the Property Trustee, subject to
Section 5.01(c)) 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
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. Neither the Sponsor nor any Trustee shall
be obligated to present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and the Sponsor or any 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 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
depository for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Sponsor or any of its Affiliates.
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ARTICLE 11
Accounting
Section 11.01. Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or
such other year as is required by the Code.
Section 11.02. Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular Trustees shall
keep, or cause to be kept, full books of account, records and supporting
documents, which shall reflect in reasonable detail each transaction of the
Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States Federal income tax purposes.
(b) If required by applicable law, the Regular Trustees shall, as soon as
available after the end of each Fiscal Year of the Trust, cause to be prepared
and mailed to each Holder of Securities unaudited financial statements of the
Trust for such Fiscal Year, prepared in accordance with generally accepted
accounting principles; provided that if the Trust is required to comply with the
periodic reporting requirements of Section 13(a) or 15(d) of the Exchange Act,
such financial statements for such Fiscal Year shall be examined and reported on
by a firm of independent certified public accountants selected by the Regular
Trustees (which firm may be the firm used by the Sponsor).
(c) The Regular Trustees shall cause to be duly prepared and mailed to each
Holder of Securities any annual United States Federal income tax information
statement required by the Code, containing such information with regard to the
Securities held by each Holder as is required by the Code and the Treasury
Regulations. Notwithstanding any right under the Code to deliver any such
statement at a later date, the Regular Trustees shall endeavor to deliver all
such statements within 30 days after the end of each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed with the
appropriate taxing authority an annual United States Federal income tax return,
on such form as is required by the Code, and any other annual income tax returns
required to be filed by the Regular Trustees on behalf of the Trust with any
state or local taxing authority.
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Section 11.03. 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 Debentures held by the Property Trustee shall be made directly to
the Property Account and no other funds from the Trust shall be deposited in the
Property Account. The sole signatories for such accounts shall be designated by
the Regular Trustees; provided, however, that the Property Trustee shall
designate the sole signatories for the Property Account.
Section 11.04. Withholding.
The Trust and the Trustees shall comply with all withholding requirements
under United States Federal, State and local law. The Regular Trustees 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 Regular Trustees to assist them in determining the extent of, and in
fulfilling, the Trust's withholding obligations. The Trust 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 claimed overwithholding, Holders shall be limited to an action
against the applicable jurisdiction. If the amount to be withheld was not
withheld from a Distribution, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE 12
Amendments and Meetings
Section 12.01. Amendments.
(a) Except as otherwise provided in this Declaration or by any applicable
terms of the Securities, this Declaration may be amended by, and only by, a
written instrument executed by a majority of the Regular Trustees; provided,
however, that (i) no amendment or modification to this Declaration shall be
made, and any such purported amendment shall be void and ineffective: (A) unless
the Regular Trustees shall have first received: (x) an Officers' Certificate
that such amendment is permitted by, and conforms to, the terms of this
Declaration; and
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(y) an Opinion of Counsel that such amendment is permitted by, and conforms to,
the terms of this Declaration and that all conditions precedent, if any, in this
Declaration to the execution and delivery of such amendment have been satisfied;
and (B) to the extent the result of such amendment would be to: (x) cause the
Trust to fail to continue to be classified for purposes of United States Federal
income taxation as a grantor trust; (y) reduce or otherwise adversely affect the
rights or powers of the Property Trustee in contravention of the Trust Indenture
Act; or (z) cause the Trust to be deemed to be an Investment Company required to
be registered under the Investment Company Act; (ii) at such time after the
Trust has issued any Securities which remain outstanding, any amendment which
would adversely affect the rights, privileges or preferences of any Holder of
Securities may be effected only with such additional requirements as may be set
forth in the terms of such Securities; (iii) Section 4.02, Section 9.01(c) and
this Section 12.01 shall not be amended without the consent of all of the
Holders of the Securities; (iv) no amendment which adversely affects the rights,
powers and privileges of the Property Trustee or the Delaware Trustee shall be
made without the consent of the Property Trustee or the Delaware Trustee,
respectively; (v) Article 4 shall not be amended without the consent of the
Sponsor; and (vi) the rights of the Holders of Common Securities under Article 5
to increase or decrease the number of, and to appoint, replace or remove,
Trustees shall not be amended without the consent of each Holder of Common
Securities.
(b) Notwithstanding Section 12.02(a), this Declaration may be amended without
the consent of the Holders of the Securities to (i) cure any ambiguity, (ii)
correct or supplement any provision in this Declaration that may be defective or
inconsistent with any other provision of this Declaration, (iii) add to the
covenants, restrictions or obligations of the Sponsor, (iv) conform to any
changes in Rule 3a-7 (if the Trust is excluded from the definition of an
Investment Company solely by reason of Rule 3a-7) or any change in
interpretation or application of Rule 3a-7 (if the Trust is excluded from the
definition of an Investment Company solely by reason of Rule 3a-7) by the
Commission, (v) make any other provisions with respect to matters or questions
arising under this Declaration which shall not be inconsistent with the other
provisions of this Declaration, (vi) modify, eliminate or add to any provisions
of this Declaration to such extent as shall be necessary to ensure that the
Trust will be classified for United States federal income tax purposes as a
grantor trust at all times that any Securities are outstanding or to ensure that
the Trust will not be required to register as an Investment Company under the
Investment Company Act, and (vii) pursuant to Section 5.02, evidence the
acceptance of the appointment of a successor Trustee or fill a vacancy created
by an increase in the number of Regular Trustees, which amendment does not
adversely affect in any material respect the rights, preferences or privileges
of the Holders.
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Section 12.02. Meetings of the Holders of Securities; Action by Written
Consent.
(a) Meetings of the Holders of Preferred Securities and/or Common Securities
may be called at any time by the Regular Trustees (or as provided in the terms
of the Securities) to consider and act on any matter on which the Holders of
such class of Securities are entitled to act under the terms of this
Declaration, the terms of the Securities or the rules of any stock exchange or
automated quotation system on which the Preferred Securities are then listed,
traded or quoted. The Regular Trustees shall call a meeting of the Holders of
Preferred Securities or Common Securities, if directed to do so by Holders of at
least 10% in liquidation amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees one or more notices in
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing
the Certificates held by the Holders of Securities exercising the right to call
a meeting and only those specified Certificates 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 Securities,
the following provision shall apply to meetings of the Holders of Securities:
(i) Notice of any such meeting shall be given by mail to all the Holders of
Securities having a right to vote thereat not less than seven (7) days nor more
than sixty (60) days prior to the date of such meeting. Whenever a vote, consent
or approval of the Holders of Securities is permitted or required under this
Declaration or the rules of any stock exchange or automated quotation system on
which the Preferred Securities are then listed, traded or quoted, such vote,
consent or approval may be given at a meeting of the Holders of Securities. Any
action that may be taken at a meeting of the Holders of Securities may be taken
without a meeting and without prior notice if a consent in writing setting forth
the action so taken is signed by Holders of Securities owning not less than the
minimum aggregate liquidation amount of Securities that would be necessary to
authorize or take such action at a meeting at which all Holders of 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 Securities
entitled to vote who have not consented in writing. The Regular Trustees may
specify that any written ballot submitted to the Holders of Securities for the
purpose of taking any action without a meeting shall be returned to the Trust
within the time specified by the Regular Trustees.
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(ii) Each Holder of a Security may authorize any Person to act for it by proxy
on all matters in which a Holder of a Security 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 the Security executing it. Except as otherwise
provided herein or in the terms of the Securities, all matters relating to the
giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation and the
Holders of the Securities were stockholders of a Delaware corporation.
(iii) Each meeting of the Holders of the Securities shall be conducted by the
Regular Trustees or by such other Person that the Regular Trustees may
designate.
(iv) Unless otherwise provided in the Business Trust Act, this Declaration or
the rules of any stock exchange or automated quotation system on which the
Preferred Securities are then listed, traded or quoted, the Regular Trustees, in
their sole discretion, shall establish all other provisions relating to meetings
of Holders of 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 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 13
Representations of the Property Trustee and the Delaware Trustee
Section 13.01. Representations and Warranties of the Property Trustee.
The Trustee which acts as the 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
the Property Trustee that:
(i) The Property Trustee is a national banking association or a banking
corporation with trust powers, duly organized, validly existing and in good
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standing under the laws of the United States or the laws of the state of its
incorporation, with trust power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, this Declaration.
(ii) The execution, delivery and performance by the Property Trustee of this
Declaration have 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).
(iii) The execution, delivery and performance of this Declaration by the
Property Trustee does not conflict with or constitute a breach of the charter or
by-laws of the Property Trustee.
(iv) No consent, approval or authorization of, or registration with or notice
to, any banking authority which supervises or regulates the Property Trustee is
required for the execution, delivery or performance by the Property Trustee of
this Declaration.
(v) The Property Trustee satisfies the qualifications set forth in Section
5.01(c).
Section 13.02. Representations and Warranties of the Delaware Trustee.
The Trustee which acts as the initial Delaware Trustee represents and warrants
to the Trust and 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 the
Delaware Trustee, that:
(i) The Delaware Trustee is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, with corporate
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration.
(ii) The execution, delivery and performance by the Delaware Trustee of this
Declaration have been duly authorized by all necessary corporate action on the
part of the Delaware Trustee. This Declaration has
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been duly executed and delivered by the Delaware Trustee and 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).
(iii) No consent, approval or authorization of, or registration with or notice
to, any banking authority which supervises or regulates the Delaware Trustee, if
any, is required for the execution, delivery or performance by the Delaware
Trustee of this Declaration.
(iv) The Delaware Trustee is a natural person who is a resident of the State
of Delaware or, if not a natural person, an entity which has its principal place
of business in the State of Delaware and is a Person that satisfies for the
Trust (S) 3807(a) of the Business Trust Act.
ARTICLE 14
Miscellaneous
Section 14.01. 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
first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the Trust's
mailing address set forth below (or such other address as the Regular Trustees
on behalf of the Trust may give notice of to the Holders of the Securities):
HI Trust I
c/o Houston Industries Incorporated
1111 Louisiana
Houston, Texas 77002
Attention: Corporate Secretary
Telecopy: (713)
(b) if given to the Property Trustee, at the mailing address of the Property
Trustee set forth below (or such other address as the Property Trustee may give
notice of to the Holders of the Securities):
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101 Barclay Street
Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Telecopy: (212) 815-5915
(c) if given to the Delaware Trustee, at the mailing address of the Delaware
Trustee set forth below (or such other address as the Delaware Trustee may give
notice of to the Holders of the Securities):
White Clay Center
Route 273
Newark, Delaware 19711
Attention: Corporate Trust Department
(d) if given to the Holder of the Common Securities, at the mailing address of
the Sponsor set forth below (or such other address as the Holder of the Common
Securities may give notice of to the Trust):
Houston Industries Incorporated
1111 Louisiana
Houston, Texas 77002
Attention: Corporate Secretary
Telecopy: (713)
(e) if given to any other Holder, at the address set forth on the books and
records of the Trust.
A copy of any notice to the Property Trustee or the Delaware Trustee shall
also be sent to the Trust. All 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 14.02. Undertaking for Costs.
All parties to this Declaration agree, and each Holder of any Securities by
his or her acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy under this Declaration, or in any suit against the Property Trustee for
any action taken or omitted by it as Property Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its
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discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 1402 shall not apply to any suit instituted by
the Property Trustee, to any suit instituted by any Holder of Preferred
Securities, or group of Holders of Preferred Securities, holding more than 10%
in aggregate liquidation amount of the outstanding Preferred Securities, or to
any suit instituted by any Holder of Preferred Securities for the enforcement of
the payment of the principal of (or premium, if any) or interest on the
Debentures, on or after the respective due dates expressed in such Debentures.
Section 14.03. Governing Law.
This Declaration, the Securities 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 conflict of laws.
Section 14.04. 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 14.05. 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 14.06. Counterparts.
This Declaration may contain more than one counterpart of the signature pages
and this Declaration may be executed by the affixing of the signature of the
Sponsor and each of the Trustees 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 14.07. Intention of the Parties.
It is the intention of the parties hereto that the Trust not be classified for
United States Federal income tax purposes as an association taxable as a
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corporation or partnership but that the Trust be treated as a grantor trust for
United States federal income tax purposes. The provisions of this Declaration
shall be interpreted to further this intention of the parties.
Section 14.08. Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or referred
to, the successors and assigns of such party shall be deemed to be included, and
all covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed.
Section 14.09. No Recourse.
The Trust's obligations hereunder are intended to be the obligations of the
Trust and no recourse for the payment of Distributions, or for any claim upon
the Securities or otherwise in respect thereof, shall be had against any Holder
of Securities or any Affiliate of a Holder of Securities, solely by reason of
such Person's being a Holder of Securities or an Affiliate of a Holder of
Securities, it being understood that the Holder of Securities, solely by reason
of being a Holder of Securities, has limited liability (in accordance with the
provisions of the Business Trust Act) for the liabilities and obligations of the
Trust. Nothing contained in this Section 14.09 shall be construed to limit the
exercise or enforcement, in accordance with the terms of this Declaration, the
Preferred Guarantee and the Indenture, of the rights and remedies against the
Trust or the Sponsor.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be executed
as of the day and year first above written.
HOUSTON INDUSTRIES INCORPORATED,
as Sponsor
By:______________________________
Name:
Title:
_______________________________
Linda Geiger,
as Regular Trustee
________________________________
Paul A. Castanon,
as Regular Trustee
________________________________
William T. Massar,
as Regular Trustee
THE BANK OF NEW YORK,
as Property Trustee
By:______________________________
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:______________________________
Name:
Title:
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EXHIBIT A
CERTIFICATE OF TRUST
OF
HI TRUST I
THIS CERTIFICATE OF TRUST of HI Trust I (the "Trust"), dated as of January
___, 1999, is being duly executed and filed by the undersigned, as trustees,
with the Secretary of State of the State of Delaware to form a business trust
under the Delaware Business Trust Act (12 Del. Code (S) 3801 et seq.).
1. Name. The name of the business trust being formed hereby is HI Trust I.
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware are The Bank
of New York (Delaware), a Delaware banking corporation, White Clay Center, Route
273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective at the time
of its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the Trust at
the time of filing this Certificate of Trust, have executed this Certificate of
Trust as of the date first above written.
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: _____________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Property Trustee
By: _____________________________________
Name:
Title:
WILLIAM T. MASSAR
as Regular Trustee
By: _____________________________________
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EXHIBIT B
TERMS OF
PREFERRED SECURITIES
Pursuant to Section 7.01(b) of the Amended and Restated Declaration of Trust
of HI Trust I dated as of ____________, ____ (as amended from time to time, the
"Declaration"), the designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities are set forth below
(each capitalized term used but not defined herein having the meaning set forth
in the Declaration):
1. DESIGNATION AND NUMBER. _________ (_______) Preferred Securities of the
Trust with an aggregate liquidation amount at any time outstanding with respect
to the assets of the Trust of ___________________________________________
Dollars ($___________) and each with a liquidation amount with respect to the
assets of the Trust of $[1,000][25] per Preferred Security, are hereby
designated as "____% Preferred Trust Securities, Series A". The Preferred
Security Certificates evidencing the Preferred Securities shall be substantially
in the form attached hereto as Annex I, 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 or automated quotation system
on which the Preferred Securities are then listed, traded or quoted. In
connection with the issuance and sale of the Preferred Securities and the Common
Securities, the Trust will purchase as trust assets Debentures of Houston
Industries having an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Securities and the Common Securities so
issued and bearing interest at an annual rate equal to the annual Distribution
rate on the Preferred Securities and the Common Securities and having payment
and redemption provisions which correspond to the payment and redemption
provisions of the Preferred Securities and the Common Securities.
2. DISTRIBUTIONS. (a) Distributions payable on each Preferred Security will
be fixed at a rate per annum of ____% (the "Coupon Rate") of the stated
liquidation amount of $[1,000][25] per Preferred Security, such rate being the
rate of interest payable on the Debentures to be held by the Property Trustee.
Distributions in arrears for more than one calendar quarter will accumulate
additional distributions thereon at the Coupon Rate per annum (to the extent
permitted by applicable law), compounded quarterly. The term "Distributions" as
used herein means such periodic cash distributions and any such additional
distributions payable unless otherwise stated. A Distribution will be made by
the Property Trustee only to the extent that interest payments are made in
respect of the Debentures held by the Property Trustee and to the extent the
Trust has funds
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on hand legally available therefor. 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 for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
per 90-day quarter.
(b) Distributions on the Preferred Securities will accumulate from
___________, _____ and will be payable quarterly in arrears, on ______, ______,
_____ and _____ of each year, commencing on ________________, ____, except as
otherwise described below, but only if and to the extent that interest payments
are made in respect of the Debentures held by the Property Trustee. So long as
Houston Industries shall not be in default in the payment of interest on the
Debentures, Houston Industries has the right under the Indenture for the
Debentures to defer payments of interest on the Debentures by extending the
interest payment period at any time and from time to time on the Debentures for
a period not exceeding 20 consecutive quarterly interest periods (each, an
"Extension Period"), during which Extension Period no interest shall be due and
payable on the Debentures. As a consequence of such deferral, Distributions
shall also be deferred. Despite such deferral, Distributions will continue to
accumulate with additional distributions thereon (to the extent permitted by
applicable law but not at a rate greater than the rate at which interest is then
accruing on the Debentures) at the Coupon Rate compounded quarterly during any
such Extension Period; provided that no Extension Period shall extend beyond the
stated maturity of the Debentures. Prior to the termination of any such
Extension Period, Houston Industries 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 quarterly interest periods.
Upon the termination of any Extension Period and the payment of all amounts then
due, Houston Industries may commence a new Extension Period, subject to the
above requirements. Payments of accumulated Distributions will be payable to
Holders of Preferred Securities as they appear on the books and records of the
Trust on the first record date after the end of the Extension Period.
(c) Distributions on the Preferred Securities will be payable promptly by the
Property Trustee (or other Paying Agent) upon receipt of immediately available
funds to the Holders thereof as they appear on the books and records of the
Trust on the relevant record dates. While the Preferred Securities remain in
book-entry only form, the
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relevant record dates shall be one business day prior to the relevant
Distribution date, and if the Preferred Securities are no longer in book-entry
only form, the relevant record dates will be the fifteenth (15th) day of the
month prior to the relevant Distribution date, which record and payment dates
correspond to the record and interest payment dates on the Debentures.
Distributions payable on any Preferred Securities that are not punctually paid
on any Distribution payment date as a result of Houston Industries' having
failed to make the corresponding interest payment on the Debentures will
forthwith cease to be payable to the person in whose name such Preferred
Security is registered on the relevant record date, and such defaulted
Distribution will instead be payable to the person in whose name such Preferred
Security is registered on the special record date established by the Regular
Trustees, which record date shall correspond to the special record date or other
specified date determined in accordance with the Indenture; provided, however,
that Distributions shall not be considered payable on any Distribution payment
date falling within an Extension Period unless Houston Industries has elected to
make a full or partial payment of interest accrued on the Debentures on such
Distribution payment date. Subject to any applicable laws and regulations and
the provisions of the Declaration, each payment in respect of the Preferred
Securities will be made as described in paragraph 8 hereof. If any date on which
Distributions are payable on the Preferred Securities is not a Business Day,
then payment of the Distribution payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date such payment was originally payable.
(d) All Distributions paid with respect to the Preferred Securities and the
Common Securities will be paid Pro Rata (as defined below) to the Holders
thereof entitled thereto. If an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to Distributions.
(e) In the event that there is any money or other property held by or for the
Trust that is not accounted for under the Declaration, such money or property
shall be distributed Pro Rata among the Holders of the Preferred Securities and
the Common Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION. (a) In the event of any
voluntary or involuntary dissolution of the Trust, the Holders of the Preferred
Securities and the Common Securities will be entitled to receive Pro Rata solely
out of the assets of the Trust legally available for distribution to Holders of
Preferred Securities and Common Securities after satisfaction of liabilities to
the creditors of the Trust, an amount equal to the aggregate of the stated
liquidation amount of $[1,000][25] per Preferred Security and Common Security
plus accumulated and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"), unless, in connection with such
dissolution, and after satisfaction of liabilities to the
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creditors of the Trust, Debentures in an aggregate principal amount equal to the
aggregate stated liquidation amount of such Preferred Securities and the Common
Securities and bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on, such Preferred Securities and the
Common Securities, shall be distributed Pro Rata to the Holders of the Preferred
Securities and the Common Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution can be paid only
in part because the Trust has insufficient assets on hand legally available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Preferred Securities and the Common Securities
shall be paid, subject to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution Pro Rata with Holders of Preferred
Securities, except that if an Event of Default has occurred and is continuing,
the Preferred Securities shall have a priority over the Common Securities with
respect to such Liquidation Distribution.
(b) The Holder of the Common Securities shall have the right to direct the
Property Trustee in writing at any time to dissolve the Trust and to distribute
Debentures to Holders in exchange for Securities (which direction is optional
and wholly within the discretion of the Holder of the Common Securities). Upon
the receipt of any such written direction, the Property Trustee shall promptly
(i) distribute Debentures in an aggregate principal amount equal to the
aggregate stated liquidation amount of the Preferred Securities and the Common
Securities held by each Holder, which Debentures bear accrued and unpaid
interest in an amount equal to the accumulated and unpaid Distributions on the
Preferred Securities and the Common Securities of such Holder, in exchange for
the Preferred Securities and Common Securities of such Holder and (ii) dissolve
the Trust.
(c) On the date fixed for any distribution of Debentures, upon dissolution of
the Trust, (i) the Preferred Securities will no longer be deemed to be
outstanding and may be canceled by the Regular Trustees, and (ii) Certificates
representing Preferred Securities will be deemed to represent beneficial
interests in the Debentures having an aggregate principal amount equal to the
stated liquidation amount of, and bearing accrued and unpaid interest equal to
accumulated and unpaid Distributions on, such Preferred Securities until such
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<PAGE>
Certificates are presented to Houston Industries or its agent for transfer or
reissuance.
(d) If Debentures are distributed to Holders of the Preferred Securities,
Houston Industries, pursuant to the terms of the Indenture, will use its best
efforts to have the Debentures listed on the New York Stock Exchange or on such
other exchange as the Preferred Securities were listed immediately prior to the
distribution of the Debentures.
4. REDEMPTION OF DEBENTURES. The Preferred Securities may be redeemed only
if Debentures having an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Securities and the Common Securities are
repaid or redeemed as set forth below:
(a) Upon the repayment of the Debentures, in whole or in part, whether at
maturity, upon redemption at any time or from time to time on or after
_________, ____, the proceeds of such repayment will be promptly applied to
redeem Pro Rata Preferred Securities and Common Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
repaid or redeemed, upon not less than 30 nor more than 60 days' notice, at a
redemption price of $[1,000][25] per Preferred Security and Common Security plus
an amount equal to accumulated and unpaid Distributions thereon to, but
excluding, the date of redemption, payable in cash (the "Redemption Price").
The date of any such repayment or redemption of Preferred Securities and Common
Securities shall be established to coincide with the repayment or redemption
date of the Debentures.
(b) If fewer than all the outstanding Preferred Securities and Common
Securities are to be so redeemed, the Preferred Securities and the Common
Securities will be redeemed Pro Rata and the Preferred Securities will be
redeemed as described in paragraph 4(f)(ii) below. If a partial redemption would
result in the delisting of the Preferred Securities by any national securities
exchange or other organization on which the Preferred Securities are then listed
or traded, Houston Industries pursuant to the Indenture will redeem Debentures
only in whole and, as a result, the Trust may redeem the Preferred Securities
only in whole.
(c) If, at any time, a Tax Event or an Investment Company Event (each as
hereinafter defined, and each a "Special Event") shall occur and be continuing,
Houston Industries shall have the right at any time, upon not less than 30 nor
more than 60 days' notice, to redeem the Debentures in whole or in part for cash
at the Redemption Price within 90 days following the occurrence of such Special
Event, and promptly following
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<PAGE>
such redemption, Preferred Securities and Common Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
redeemed will be redeemed by the Trust at the Redemption Price on a Pro Rata
basis. The Common Securities will be redeemed Pro Rata with the Preferred
Securities, except that if an Event of Default has occurred and is continuing,
the Preferred Securities will have a priority over the Common Securities with
respect to payment of the Redemption Price.
"Tax Event" means that the Sponsor and the Regular Trustees shall have
obtained an Opinion of Counsel experienced in such matters (a "Dissolution Tax
Opinion") to the effect that on or after ____________, ____ as a result of (a)
any amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, (b) any amendment to, or
change in, an interpretation or application of any such laws or regulations by
any legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any judicial
decision or regulatory determination), (c) any interpretation or pronouncement
that provides for a position with respect to such laws or regulations that
differs from the theretofore generally accepted position or (d) any action taken
by any governmental agency or regulatory authority, which amendment or change is
enacted, promulgated, issued or announced or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after _________, ____, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date thereof, subject to United
States Federal income tax with respect to income accrued or received on the
Debentures, (ii) the Trust is, or will be within 90 days of the date thereof,
subject to more than a de minimis amount of taxes, duties or other governmental
charges or (iii) interest payable by Houston Industries to the Trust on the
Debentures is not, or within 90 days of the date thereof will not be, deductible
by Houston Industries for United States Federal income tax purposes.
"Investment Company Event" means that the Sponsor and the Regular Trustees
shall have received an Opinion of Counsel experienced in practice under the
Investment Company Act that, as a result of the occurrence 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 (a
"Change in 1940 Act Law"), there is more than an insubstantial risk that the
Trust is or will be considered an Investment Company which is required to be
registered under the Investment Company Act, which Change in 1940 Act Law
becomes effective on or after _________, ____.
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(d) The Trust may not redeem fewer than all the outstanding Preferred
Securities unless all accumulated and unpaid Distributions have been paid on all
Preferred Securities for all quarterly Distribution periods terminating on or
prior to the date of redemption.
(e) [Intentionally omitted.]
(f) (i) Notice of any redemption of, or notice of distribution of Debentures
in exchange for, the Preferred Securities and the Common Securities (a
"Redemption/Distribution Notice") will be given by the Regular Trustees on
behalf of the Trust by mail to each Holder of Preferred Securities and Common
Securities to be redeemed or exchanged not less than 30 nor more than 60 days
prior to the date fixed for redemption or exchange thereof. For purposes of the
calculation of the date of redemption or exchange and the dates on which notices
are given pursuant to this paragraph 4(f)(i), a Redemption/Distribution Notice
shall be deemed to be given on the day such notice is first mailed by first-
class mail, postage prepaid, to Holders of Preferred Securities and Common
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Preferred Securities and Common Securities at the address of each
such Holder appearing in the books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of either thereof with respect
to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Preferred Securities are
to be redeemed, the Preferred Securities to be redeemed will be redeemed Pro
Rata from each Holder of Preferred Securities, it being understood that, in
respect of Preferred Securities registered in the name of and held of record by
DTC (or successor Clearing Agency) or any other nominee, the Preferred
Securities will be redeemed from, and the distribution of the proceeds of such
redemption will be made to, DTC (or successor Clearing Agency).
(iii) Subject to paragraph 8 hereof, if the Trust gives a
Redemption/Distribution Notice in respect of a redemption of Preferred
Securities as provided in this paragraph 4 then (A) while the Preferred
Securities are in book-entry only form, with respect to the Preferred
Securities, by 12:00 noon, New York City time, on the redemption date, provided
that Houston Industries has paid the Property Trustee, in immediately available
funds, a sufficient amount of cash in connection with the related redemption or
maturity of the Debentures, the Property Trustee will deposit
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irrevocably with DTC (or successor Clearing Agency) funds sufficient to pay the
applicable Redemption Price with respect to the Preferred Securities and will
give DTC (or successor Clearing Agency) irrevocable instructions and authority
to pay the Redemption Price to the Holders of the Preferred Securities and (B)
if the Preferred Securities are issued in definitive form, with respect to the
Preferred Securities and provided that Houston Industries has paid the Property
Trustee, in immediately available funds, a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures, the
Property Trustee will pay the relevant Redemption Price to the Holders of such
Preferred Securities by check mailed to the address of the relevant Holder
appearing on the books and records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds deposited as
required, if applicable, then immediately prior to the close of business on the
redemption date, Distributions will cease to accumulate on the Preferred
Securities called for redemption, such Preferred Securities will no longer be
deemed to be outstanding and all rights of Holders of such Preferred Securities
so called for redemption will cease, except the right of the Holders of such
Preferred Securities to receive the Redemption Price, but without interest on
such Redemption Price. Neither the Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Preferred Securities
which have been so called for redemption. If any date fixed for redemption of
Preferred Securities is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay)
except that, if such Business Day falls in the next calendar year, such payment
will be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for redemption. If payment
of the Redemption Price in respect of Preferred Securities is improperly
withheld or refused and not paid either by the Property Trustee or by Houston
Industries pursuant to the Preferred Guarantee, Distributions on such Preferred
Securities will continue to accumulate, from the original redemption date to the
date of payment, in which case the actual payment date will be considered the
date fixed for redemption for purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the Regular Trustees on
behalf of the Trust to DTC or its nominee (or any successor Clearing Agency or
its nominee) if the Global
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Certificates have been issued or, if Definitive Preferred Security Certificates
have been issued, to the Holders of the Preferred Securities.
(v) Subject to the foregoing and applicable law (including, without
limitation, United States Federal securities laws), Houston Industries or any of
its Affiliates may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
5. VOTING RIGHTS. (a) Except as provided under paragraph 5(b) below and as
otherwise required by law and the Declaration, the Holders of the Preferred
Securities will have no voting rights.
(b) If any proposed amendment to the Declaration provides for, or the Regular
Trustees otherwise propose to effect, (i) any action that would adversely affect
the powers, preferences or special rights of the Securities, whether by way of
amendment to the Declaration, other than as described in Section 12.01(b) of the
Declaration, or otherwise, or (ii) the dissolution, winding-up or termination of
the Trust, other than as described in Section 8.01 of the Declaration, then the
Holders of outstanding Securities will be entitled to vote on such amendment or
proposal as a single class and such amendment or proposal shall not be effective
except with the approval of the Holders of Securities of at least a Majority in
liquidation amount of the Securities, voting together as a single class;
provided, however, that (A) if any amendment or proposal referred to in clause
(i) above would adversely affect only the Preferred Securities or the Common
Securities, then only the affected class of Securities will be entitled to vote
on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of at least a Majority in liquidation amount
of such class of Securities and (B) amendments to the Declaration shall be
subject to such further requirements as are set forth in Sections 12.01 and
12.02 of the Declaration.
In the event the consent of the Property Trustee, as the holder of the
Debentures, is required under the Indenture with respect to any amendment,
modification or termination of the Indenture or the Debentures, the Property
Trustee shall request the written direction of the Holders of the Securities
with respect to such amendment, modification or termination. The Property
Trustee shall vote with respect to such amendment, modification or termination
as directed by a Majority in liquidation amount of the Securities voting
together as a single class; provided, however, that where such amendment,
modification or termination of the Indenture requires the consent or vote of (1)
holders of
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Debentures representing a specified percentage greater than a majority in
principal amount of the Debentures or (2) each holder of Debentures, the
Property Trustee may only vote with respect to that amendment, modification or
termination as directed by, in the case of clause (1) above, the vote of Holders
of Securities representing such specified percentage of the aggregate
liquidation amount of the Securities, or, in the case of clause (2) above, each
Holder of Securities; and provided, further, that the Property Trustee shall be
under no obligation to take any action in accordance with the directions of the
Holders of Securities unless the Property Trustee shall have received, at the
expense of the Sponsor, an Opinion of Counsel experienced in such matters to the
effect that the Trust will not be classified for United States Federal income
tax purposes as other than a grantor trust on account of such action.
So long as any Debentures are held by the Property Trustee, the Trustees shall
not (i) direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee of the Indenture (the "Debenture Trustee"), or
exercising any trust or power conferred on such Debenture Trustee with respect
to the Debentures, (ii) waive any past default that is waivable under Section
6.06 of the Indenture or (iii) exercise any right to rescind or annul a
declaration of acceleration of the maturity of the principal of the Debentures,
without, in each case, obtaining the prior approval of the Holders of a Majority
in liquidation amount of all outstanding Preferred Securities and Common
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities except by
subsequent vote of such Holders. The Property Trustee shall notify each Holder
of Preferred Securities of any notice of default with respect to the Debentures.
In addition to obtaining the foregoing approvals of such Holders of the
Preferred Securities and Common Securities, prior to taking any of the foregoing
actions, the Trustees shall obtain an Opinion of Counsel experienced in such
matters to the effect that for United States Federal income tax purposes the
Trust will not be classified as other than a grantor trust on account of such
action.
If an Event of Default has occurred and is continuing, then the Holders of a
Majority in liquidation amount of the Preferred Securities will have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee or to direct the exercise of any trust or
power conferred upon the Property Trustee under the Declaration, including the
right to direct the Property Trustee to exercise the remedies available to it as
a holder of the Debentures. If the Property Trustee fails to enforce its rights
under the Debentures, a Holder of Preferred Securities, to the extent permitted
by applicable law, may, after a period of 30 days has elapsed since such
Holder's written request to the Property Trustee to enforce such rights,
institute a legal proceeding directly against the Sponsor to enforce the
Property Trustee's rights under the Debentures without first instituting any
legal proceeding against the Property
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Trustee or any other Person; provided further, that, if an Event of Default has
occurred and is continuing and such event is attributed to the failure of the
Sponsor to pay interest or principal on the Debentures on the date such interest
or principal is otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder of the principal of or
interest on the Debentures having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such Holder (a "Holder Direct
Action") on or after the respective due date specified in the Debentures. In
connection with such Holder Direct Action, the Sponsor will be subrogated to the
rights of such Holder of Preferred Securities to the extent of any payment made
by the Sponsor to such Holders of Preferred Securities in such Holder Direct
Action. Except as provided in the preceding sentences, the Holders of Preferred
Securities will not be able to exercise directly any other remedy available to
the Holders of the Debentures.
A waiver of an Indenture Event of Default by the Property Trustee at the
direction of the Holders of the Preferred Securities will constitute a waiver of
the corresponding Event of Default under the Declaration in respect of the
Securities.
Any required approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Securities or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting at which
Holders of Preferred Securities are entitled to vote to be mailed to each Holder
of record of Preferred Securities. Each such notice will include a statement
setting forth (i) the date of such meeting, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
and (iii) instructions for the delivery of proxies.
No vote or consent of the Holders of Preferred Securities will be required for
the Trust to redeem and cancel Preferred Securities or to distribute the
Debentures in accordance with the Declaration.
Notwithstanding that Holders of Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the Preferred
Securities at such time that are owned by Houston Industries or by any Affiliate
of Houston Industries shall not be entitled to vote or consent and shall, for
purposes of such vote or consent, be treated as if they were not outstanding.
Except as provided in this paragraph 5, Holders of the Preferred Securities
will have no rights to increase or decrease the number of Trustees or to
appoint, remove or replace a Trustee, which voting rights are vested exclusively
in the Holders of the Common Securities.
B-11
<PAGE>
6. PRO RATA TREATMENT. A reference in these terms of the Preferred
Securities to any payment, Distribution or treatment as being "Pro Rata" shall
mean pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all Securities outstanding unless, in
relation to a payment, an Event of Default has occurred and is continuing, in
which case any funds available to make such payment shall be paid first to each
Holder of the Preferred Securities pro rata according to the aggregate
liquidation amount of Preferred Securities held by the relevant Holder relative
to the aggregate liquidation amount of all Preferred Securities outstanding, and
only after satisfaction of all amounts owed to the Holders of the Preferred
Securities, to each Holder of Common Securities pro rata according to the
aggregate liquidation amount of Common Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Common Securities
outstanding.
7. RANKING. The Preferred Securities rank pari passu and payment thereon
will be made Pro Rata with the Common Securities, except that when an Event of
Default occurs and is continuing, the rights of Holders of Preferred Securities
to payment in respect of Distributions and payments upon liquidation, redemption
or otherwise rank in priority to the rights of Holders of the Common Securities.
8. TRANSFER, EXCHANGE, METHOD OF PAYMENTS. Payment of Distributions and
payments on redemption of the Preferred Securities will be payable, the transfer
of the Preferred Securities will be registrable, and Preferred Securities will
be exchangeable for Preferred Securities of other denominations of a like
aggregate liquidation amount, at the corporate trust office of the Property
Trustee in The City of New York; provided that payment of Distributions may be
made at the option of the Regular Trustees on behalf of the Trust by check
mailed to the address of the persons entitled thereto and that the payment on
redemption of any Preferred Security will be made only upon surrender of such
Preferred Security to the Property Trustee.
9. ACCEPTANCE OF INDENTURE AND PREFERRED GUARANTEE. Each Holder of
Preferred Securities, by the acceptance thereof, agrees to the provisions of (i)
the Preferred Guarantee, including the subordination provisions therein, and
(ii) the Indenture and the Debentures, including the subordination provisions of
the Indenture.
10. NO PREEMPTIVE RIGHTS. The Holders of Preferred Securities shall have no
preemptive or similar rights to subscribe to any additional Preferred Securities
or Common Securities.
B-12
<PAGE>
11. MISCELLANEOUS. These terms shall constitute a part of the Declaration.
The Trust will provide a copy of the Declaration and the Indenture to a Holder
of Preferred Securities without charge on written request to the Trust at its
principal place of business.
B-13
<PAGE>
Annex I
FORM OF PREFERRED SECURITY CERTIFICATE
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT - THIS
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 ("DTC") OR A NOMINEE OF DTC. THIS PREFERRED SECURITY IS EXCHANGEABLE
FOR PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR
ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND
NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED
SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR
ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO HI TRUST I
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
PREFERRED 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.]
Certificate Number Number of Preferred Securities: ____________
__________________ Aggregate Liquidation Amount: $____________
CUSIP NO. ____________
Certificate Evidencing Preferred Securities
of
HI Trust I
____% Preferred Trust Securities, Series A
(liquidation amount $[1,000][25] per Preferred Security)
B-14
<PAGE>
HI Trust I, a statutory business trust created under the laws of the State of
Delaware (the "Trust"), hereby certifies that _________ (the "Holder") is the
registered owner of _____ (______) preferred securities of the Trust
representing preferred undivided beneficial interests in the assets of the Trust
and designated the ____% Preferred Trust Securities, Series A (liquidation
amount $[1,000][25] per Preferred Security) (the "Preferred Securities"). The
Preferred Securities are 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 designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth in, and this Certificate and the Preferred Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Declaration of Trust of the Trust
dated as of ___________, ____, as the same may be amended from time to time (the
"Declaration") including the designation of the terms of Preferred Securities as
set forth in Exhibit B thereto. The Preferred Securities and the Common
Securities issued by the Trust pursuant to the Declaration represent undivided
beneficial interests in the assets of the Trust, including the Debentures (as
defined in the Declaration) issued by Houston Industries Incorporated, a Texas
corporation ("Houston Industries"), to the Trust pursuant to the Indenture
referred to in the Declaration. The Holder is entitled to the benefits of the
Guarantee Agreement of Houston Industries dated as of __________, ____, as the
same may be amended from time to time (the "Guarantee") to the extent provided
therein. The Trust will furnish a copy of the Declaration, the Guarantee and
the Indenture to the Holder without charge upon written request to the Trust at
its principal place of business or registered office.
The Holder of this Certificate, by accepting this Certificate, is deemed to
have (i) agreed to the terms of the Indenture and the Debentures, including that
the Debentures are subordinate and junior in right of payment to all Senior Debt
(as defined in the Indenture) as and to the extent provided in the Indenture,
and (ii) agreed to the terms of the Guarantee, including that the Guarantee is
subordinate and junior in right of payment to all other liabilities of Houston
Industries, including the Debentures, except those made pari passu or
subordinate by their terms, and senior to all capital stock (other than the most
senior preferred stock issued, from time to time, if any, by Houston Industries,
which preferred stock will rank pari passu with the Guarantee) now or hereafter
issued by Houston Industries and to any guarantee now or hereafter entered into
by Houston Industries in respect of any of its capital stock (other than the
most senior preferred stock issued, from time to time, if any, by Houston
Industries).
Upon receipt of this Certificate, the Holder is bound by the Declaration and
is entitled to the benefits thereunder.
B-15
<PAGE>
IN WITNESS WHEREOF, Trustees of the Trust have executed this Certificate.
HI TRUST I
By:_________________________, as Regular Trustee
Name:
Title: Regular Trustee
By:_________________________, as Regular Trustee
Name:
Title: Regular Trustee
Dated:
Countersigned and Registered:
Transfer Agent and Registrar
By:___________________________
Authorized Signatory
B-16
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at a rate per
annum of ___ % (the "Coupon Rate") of the stated liquidation amount of
$[1,000][25] per Preferred Security, such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears for more than one quarter will accumulate additional distributions
thereon at the Coupon Rate per annum (to the extent permitted by applicable
law), compounded quarterly. The term "Distributions" as used herein means such
periodic cash distributions and any such additional distributions payable unless
otherwise stated. A Distribution is payable only to the extent that payments
are made in respect of the Debentures held by the Property Trustee and to the
extent the Trust has funds on hand legally available therefor. 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 for which
Distributions are computed, Distributions will be computed on the basis of the
actual number of days elapsed per 90-day quarter.
Distributions on the Preferred Securities will accumulate from _________,
____, and will be payable quarterly in arrears, on ______, ______, ______ and
______ of each year, commencing on ________, ____, but only if and to the extent
that interest payments are made in respect of the Debentures held by the
Property Trustee. So long as Houston Industries shall not be in default in the
payment of interest on the Debentures, Houston Industries has the right under
the Indenture for the Debentures to defer payments of interest on the Debentures
by extending the interest payment period at any time and from time to time on
the Debentures for a period not exceeding 20 consecutive quarterly interest
periods (each an "Extension Period"), during which Extension Period no interest
shall be due and payable on the Debentures. As a consequence of such deferral,
Distributions shall also be deferred. Despite such deferral, Distributions will
continue to accumulate with additional distributions thereon (to the extent
permitted by applicable law but not at a rate greater than the rate at which
interest is then accruing on the Debentures) at the Coupon Rate compounded
quarterly during any such Extension Period; provided that no Extension Period
shall extend beyond the stated maturity of the Debentures. Prior to the
termination of any such Extension Period, Houston Industries 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
quarterly interest periods. Upon the termination of any Extension Period and the
payment of all amounts then due, Houston Industries may commence a new Extension
Period, subject to the above requirements. Payments of accumulated
Distributions will be payable to Holders of Preferred Securities as they appear
on the books and records of the Trust on the first record date after the end of
the Extension Period.
B-17
<PAGE>
The Preferred Securities shall be redeemable as provided in the Declaration.
B-18
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this 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 Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
B-19
<PAGE>
Date: ______________________________________
Signature: _________________________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S)
AS WRITTEN UPON THE FACE OF THIS PREFERRED SECURITY CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
B-20
<PAGE>
EXHIBIT C
TERMS OF
COMMON SECURITIES
Pursuant to Section 7.01(b) of the Amended and Restated Declaration of Trust
of HI Trust I dated as of ____________, ____ (as amended from time to time, the
"Declaration"), the designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities are set forth below
(each capitalized term used but not defined herein having the meaning set forth
in the Declaration):
1. DESIGNATION AND NUMBER. _________ (_______) Common Securities of the
Trust with an aggregate liquidation amount at any time outstanding with respect
to the assets of the Trust of ___________________________________________
Dollars ($___________), and each with a liquidation amount with respect to the
assets of the Trust of $[1,000][25] per Common Security, are hereby designated
as "____% Common Trust Securities, Series A". The Common Security Certificates
evidencing the Common Securities shall be substantially in the form attached
hereto as Annex I, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice. The Common
Securities are to be issued and sold to Houston Industries in consideration of
$_____________ in cash. In connection with the issuance and sale of the
Preferred Securities and the Common Securities, the Trust will purchase as trust
assets Debentures of Houston Industries having an aggregate principal amount
equal to the aggregate liquidation amount of the Preferred Securities and the
Common Securities so issued, and bearing interest at an annual rate equal to the
annual Distribution rate on the Preferred Securities and the Common Securities
and having payment and redemption provisions which correspond to the payment and
redemption provisions of the Preferred Securities and the Common Securities.
2. DISTRIBUTIONS. (a) Distributions payable on each Common Security will be
fixed at a rate per annum of ____% (the "Coupon Rate") of the stated liquidation
amount of $[1,000][25] per Common Security, such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears for more than one calendar quarter will accumulate additional
distributions thereon at the Coupon Rate per annum (to the extent permitted by
applicable law), compounded quarterly. The term "Distributions" as used herein
means such periodic cash distributions and any such additional distributions
payable unless otherwise stated. A Distribution will be made by the Property
Trustee only to the extent that interest payments are made in respect of
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<PAGE>
the Debentures held by the Property Trustee and to the extent the Trust has
funds on hand legally available therefor. 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 for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
per 90-day quarter.
(b) Distributions on the Common Securities will accumulate from ___________,
____ and will be payable quarterly in arrears, on ______, ______, _____ and
_____ of each year commencing on ________________, ____, except as otherwise
described below, but only if and to the extent that interest payments are made
in respect of the Debentures held by the Property Trustee. So long as Houston
Industries shall not be in default in the payment of interest on the Debentures,
Houston Industries has the right under the Indenture for the Debentures to defer
payments of interest on the Debentures by extending the interest payment period
at any time and from time to time on the Debentures for a period not exceeding
20 consecutive quarterly interest periods (each, an "Extension Period"), during
which Extension Period no interest shall be due and payable on the Debentures.
As a consequence of such deferral, Distributions shall also be deferred.
Despite such deferral, Distributions will continue to accumulate with additional
distributions thereon (to the extent permitted by applicable law but not at a
rate greater than the rate at which interest is then accruing on the Debentures)
at the Coupon Rate compounded quarterly during any such Extension Period;
provided that no Extension Period shall extend beyond the stated maturity of the
Debentures. Prior to the termination of any such Extension Period, Houston
Industries 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 quarterly interest periods. Upon the termination
of any Extension Period and the payment of all amounts then due, Houston
Industries may commence a new Extension Period, subject to the above
requirements. Payments of accumulated Distributions will be payable to Holders
of Common Securities as they appear on the books and records of the Trust on the
first record date after the end of the Extension Period.
(c) Distributions on the Common Securities will be payable promptly by the
Property Trustee (or other Paying Agent) upon receipt of immediately available
funds to the Holders thereof as they appear on the books and records of the
Trust on the relevant record dates. While the Preferred Securities remain in
book-entry only form, the relevant record dates for the Common Securities shall
be one business day prior to the
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<PAGE>
relevant Distribution date, and if the Preferred Securities are no longer in
book-entry only form, the relevant record dates for the Common Securities will
be the fifteenth (15th) day of the month prior to the relevant Distribution
date, which record and payment dates correspond to the record and interest
payment dates on the Debentures. Distributions payable on any Common Securities
that are not punctually paid on any Distribution payment date as a result of
Houston Industries' having failed to make the corresponding interest payment on
the Debentures will forthwith cease to be payable to the person in whose name
such Common Security is registered on the relevant record date, and such
defaulted Distribution will instead be payable to the person in whose name such
Common Security is registered on the special record date established by the
Regular Trustees, which record date shall correspond to the special record date
or other specified date determined in accordance with the Indenture; provided,
however, that Distributions shall not be considered payable on any Distribution
payment date falling within an Extension Period unless Houston Industries has
elected to make a full or partial payment of interest accrued on the Debentures
on such Distribution payment date. Subject to any applicable laws and
regulations and the provisions of the Declaration, each payment in respect of
the Common Securities will be made as described in paragraph 8 hereof. If any
date on which Distributions are payable on the Common Securities is not a
Business Day, then payment of the Distribution payable on such date will be made
on the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on the date such payment was originally payable.
(d) All Distributions paid with respect to the Common Securities and the
Preferred Securities will be paid Pro Rata (as defined below) to the Holders
thereof entitled thereto. If an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to Distributions.
(e) In the event that there is any money or other property held by or for the
Trust that is not accounted for under the Declaration, such money or property
shall be distributed Pro Rata among the Holders of the Preferred Securities and
the Common Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION. (a) In the event of any
voluntary or involuntary dissolution of the Trust, the Holders of the Preferred
Securities and the Common Securities will be entitled to receive Pro Rata solely
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<PAGE>
out of the assets of the Trust legally available for distribution to Holders of
Preferred Securities and Common Securities after satisfaction of liabilities to
the creditors of the Trust, an amount equal to the aggregate of the stated
liquidation amount of $[1,000][25] per Preferred Security and Common Security
plus accumulated and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"), unless, in connection with such
dissolution, and after satisfaction of liabilities to the creditors of the
Trust, Debentures in an aggregate principal amount equal to the aggregate stated
liquidation amount of such Preferred Securities and the Common Securities and
bearing accrued and unpaid interest in an amount equal to the accumulated and
unpaid Distributions on, such Preferred Securities and the Common Securities,
shall be distributed Pro Rata to the Holders of the Preferred Securities and the
Common Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution can be paid only
in part because the Trust has insufficient assets on hand legally available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Preferred Securities and the Common Securities
shall be paid, subject to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution Pro Rata with Holders of Preferred
Securities, except that if an Event of Default has occurred and is continuing,
the Preferred Securities shall have a priority over the Common Securities with
respect to such Liquidation Distribution.
(b) The Holder of the Common Securities shall have the right to direct
the Property Trustee in writing at any time to dissolve the Trust and to
distribute Debentures to Holders in exchange for Securities (which direction is
optional and wholly within the discretion of the Holder of the Common
Securities). Upon the receipt of any such written direction, the Property
Trustee shall promptly (i) distribute Debentures in an aggregate principal
amount equal to the aggregate stated liquidation amount of the Preferred
Securities and the Common Securities held by each Holder, which Debentures bear
accrued and unpaid interest in an amount equal to the accumulated and unpaid
Distributions on the Preferred Securities and the Common Securities of such
Holder, in exchange for the Preferred Securities and Common Securities of such
Holder and (ii) dissolve the Trust.
(c) On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Common Securities will no longer be deemed to
be outstanding and may be canceled by the Regular Trustees, and (ii)
Certificates representing Common Securities will be deemed to represent
beneficial interests in the Debentures having an aggregate principal amount
equal to the stated
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<PAGE>
liquidation amount of, and bearing accrued and unpaid interest equal to
accumulated and unpaid Distributions on, such Common Securities until such
Certificates are presented to Houston Industries or its agent for transfer or
reissuance.
4. REDEMPTION OF DEBENTURES. The Common Securities may be redeemed only if
Debentures having an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Securities and the Common Securities are
repaid or redeemed as set forth below:
(a) Upon the repayment of the Debentures, in whole or in part, whether at
maturity, upon redemption at any time or from time to time on or after
_________, ____, the proceeds of such repayment will be promptly applied to
redeem Pro Rata Preferred Securities and Common Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
repaid or redeemed, upon not less than 30 nor more than 60 days' notice, at a
redemption price of $[1,000][25] per Preferred Security and Common Security plus
an amount equal to accumulated and unpaid Distributions thereon to, but
excluding, the date of redemption, payable in cash (the "Redemption Price").
The date of any such repayment or redemption of Preferred Securities and Common
Securities shall be established to coincide with the repayment or redemption
date of the Debentures.
(b) If fewer than all the outstanding Preferred Securities and Common
Securities are to be so redeemed, the Preferred Securities and the Common
Securities will be redeemed Pro Rata and the Common Securities will be redeemed
as described in paragraph 4(e)(ii) below. If a partial redemption would result
in the delisting of the Preferred Securities by any national securities exchange
or other organization on which the Preferred Securities are then listed or
traded, Houston Industries pursuant to the Indenture will redeem Debentures only
in whole and, as a result, the Trust may redeem the Common Securities only in
whole.
(c) If, at any time, a Tax Event or an Investment Company Event (each as
hereinafter defined, and each, a "Special Event") shall occur and be continuing,
Houston Industries shall have the right at any time, upon not less than 30 nor
more than 60 days' notice, to redeem the Debentures in whole or in part for cash
at the Redemption Price within 90 days following the occurrence of such Special
Event, and promptly following such redemption, Preferred Securities and Common
Securities with an aggregate liquidation amount equal to the aggregate principal
amount of the Debentures so redeemed will be redeemed by the Trust at the
Redemption Price on a Pro Rata basis. The Common Securities will be
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<PAGE>
redeemed Pro Rata with the Preferred Securities, except that if an Event of
Default has occurred and is continuing, the Preferred Securities will have a
priority over the Common Securities with respect to payment of the Redemption
Price.
"Tax Event" means that the Sponsor and the Regular Trustees shall have
obtained an Opinion of Counsel experienced in such matters (a "Dissolution Tax
Opinion") to the effect that on or after ____________, ____ as a result of (a)
any amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, (b) any amendment to, or
change in, an interpretation or application of any such laws or regulations by
any legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any judicial
decision or regulatory determination), (c) any interpretation or pronouncement
that provides for a position with respect to such laws or regulations that
differs from the theretofore generally accepted position or (d) any action taken
by any governmental agency or regulatory authority, which amendment or change is
enacted, promulgated, issued or announced or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after _________, ____, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date thereof, subject to United
States Federal income tax with respect to income accrued or received on the
Debentures, (ii) the Trust is, or will be within 90 days of the date thereof,
subject to more than a de minimis amount of taxes, duties or other governmental
charges or (iii) interest payable by Houston Industries to the Trust on the
Debentures is not, or within 90 days of the date thereof will not be, deductible
by Houston Industries for United States Federal income tax purposes.
"Investment Company Event" means that the Sponsor and the Regular Trustees
shall have received an Opinion of Counsel experienced in practice under the
Investment Company Act that, as a result of the occurrence 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 (a
"Change in 1940 Act Law"), there is more than an insubstantial risk that the
Trust is or will be considered an Investment Company which is required to be
registered under the Investment Company Act, which Change in 1940 Act Law
becomes effective on or after _________, ____.
(d) The Trust may not redeem fewer than all the outstanding Common Securities
unless all accumulated and unpaid Distributions have been paid on all Common
Securities for all quarterly Distribution periods terminating on or prior to the
date of redemption.
C-6
<PAGE>
(e) (i) Notice of any redemption of, or notice of distribution of Debentures
in exchange for, the Preferred Securities and the Common Securities (a
"Redemption/Distribution Notice") will be given by the Regular Trustees on
behalf of the Trust by mail to each Holder of Preferred Securities and Common
Securities to be redeemed or exchanged not less than 30 nor more than 60 days
prior to the date fixed for redemption or exchange thereof. For purposes of the
calculation of the date of redemption or exchange and the dates on which notices
are given pursuant to this paragraph 4(e)(i), a Redemption/Distribution Notice
shall be deemed to be given on the day such notice is first mailed by first-
class mail, postage prepaid, to Holders of Preferred Securities and Common
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Preferred Securities and Common Securities at the address of each
such Holder appearing in the books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of either thereof with respect
to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Common Securities are to
be redeemed, the Common Securities to be redeemed will be redeemed Pro Rata from
each Holder of Common Securities (subject to adjustment to eliminate fractional
Common Securities).
(iii) If the Trust gives a Redemption/Distribution Notice in respect of a
redemption of Common Securities as provided in this paragraph 4 (which notice
will be irrevocable), then immediately prior to the close of business on the
redemption date, provided that Houston Industries has paid to the Property
Trustee in immediately available funds a sufficient amount of cash in connection
with the related redemption or maturity of the Debentures, Distributions will
cease to accumulate on the Common Securities called for redemption, such Common
Securities will no longer be deemed to be outstanding and all rights of Holders
of such Common Securities so called for redemption will cease, except the right
of the Holders of such Common Securities to receive the Redemption Price, but
without interest on such Redemption Price. Neither the Trustees nor the Trust
shall be required to register or cause to be registered the transfer of any
Common Securities which have been so called for redemption. If any date fixed
for redemption of Common Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such
C-7
<PAGE>
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date fixed for redemption. If payment of the Redemption Price
in respect of Common Securities is improperly withheld or refused and not paid
by the Property Trustee, Distributions on such Common Securities will continue
to accumulate, from the original redemption date to the date of payment, in
which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the Regular Trustees on
behalf of the Trust to Holders of the Common Securities.
5. VOTING RIGHTS. (a) Except as provided under paragraph 5(b) below and as
otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) Holders of Common Securities have the sole right under the Declaration to
increase or decrease the number of Trustees, and to appoint, remove or replace a
Trustee, any such increase, decrease, appointment, removal or replacement to be
approved by Holders of Common Securities representing a Majority in liquidation
amount of the Common Securities.
If any proposed amendment to the Declaration provides for, or the Regular
Trustees otherwise propose to effect, (i) any action that would adversely affect
the powers, preferences or special rights of the Securities, whether by way of
amendment to the Declaration, other than as described in Section 12.01(b) of the
Declaration, or otherwise, or (ii) the dissolution, winding-up or termination of
the Trust, other than as described in Section 8.01 of the Declaration or Section
3 of this Exhibit C or Section 3 of Exhibit B, then the Holders of outstanding
Securities will be entitled to vote on such amendment or proposal as a single
class and such amendment or proposal shall not be effective except with the
approval of the Holders of Securities of at least a Majority in liquidation
amount of the Securities, voting together as a single class; provided, however,
that (A) if any amendment or proposal referred to in clause (i) above would
adversely affect only the Preferred Securities or the Common Securities, then
only the affected class of Securities will be entitled to vote on such amendment
or proposal and such amendment or proposal shall not be effective except with
the approval of at least a Majority in liquidation amount of such class of
Securities, (B) the rights of Holders of Common Securities under Section 5.02 of
the Declaration to increase or decrease the number of, and to appoint, replace
or remove, Trustees shall not be amended without the consent of each Holder of
Common Securities, and (C)
C-8
<PAGE>
amendments to the Declaration shall be subject to such further requirements as
are set forth in Sections 12.01 and 12.02 of the Declaration.
In the event the consent of the Property Trustee, as the holder of the
Debentures, is required under the Indenture with respect to any amendment,
modification or termination of the Indenture or the Debentures, the Property
Trustee shall request the written direction of the Holders of the Securities
with respect to such amendment, modification or termination. The Property
Trustee shall vote with respect to such amendment, modification or termination
as directed by a Majority in liquidation amount of the Securities voting
together as a single class; provided, however, that where such amendment,
modification or termination of the Indenture requires the consent or vote of (1)
holders of Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures or (2) each holder of Debentures,
the Property Trustee may only vote with respect to that amendment, modification
or termination as directed by, in the case of clause (1) above, the vote of
Holders of Securities representing such specified percentage of the aggregate
liquidation amount of the Securities, or, in the case of clause (2) above, each
Holder of Securities; and provided, further, that the Property Trustee shall be
under no obligation to take any action in accordance with the directions of the
Holders of Securities unless the Property Trustee shall have received, at the
expense of the Sponsor, an Opinion of Counsel experienced in such matters to the
effect that the Trust will not be classified for United States Federal income
tax purposes as other than a grantor trust on account of such action.
So long as any Debentures are held by the Property Trustee, the Trustees shall
not (i) direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee of the Indenture (the "Debenture Trustee"), or
exercising any trust or power conferred on such Debenture Trustee with respect
to the Debentures, (ii) waive any past default that is waivable under Section
6.06 of the Indenture or (iii) exercise any right to rescind or annul a
declaration of acceleration of the maturity of the principal of the Debentures,
without, in each case, obtaining the prior approval of the Holders of a Majority
in liquidation amount of all outstanding Common Securities and Preferred
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of the Common Securities except by subsequent
vote of such Holders. The Property Trustee shall notify each Holder of Common
Securities of any notice of default with respect to the Debentures. In addition
to obtaining the foregoing approvals of such Holders of the Common Securities
and Preferred Securities, prior to taking any of the foregoing actions, the
Trustees shall obtain an Opinion of Counsel experienced in such matters to the
effect that for United States Federal income tax purposes the Trust will not be
classified as other than a grantor trust on account of such action.
C-9
<PAGE>
Notwithstanding any other provision of these terms, each Holder of Common
Securities will be deemed to have waived any Event of Default with respect to
the Common Securities and its consequences until all Events of Default with
respect to the Preferred Securities have been cured, waived by the Holders of
Preferred Securities as provided in the Declaration or otherwise eliminated, and
until all Events of Default with respect to the Preferred Securities have been
so cured, waived by the Holders of Preferred Securities or otherwise eliminated,
the Property Trustee will be deemed to be acting solely on behalf of the Holders
of Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Declaration or of the Securities. In the event that any Event of Default
with respect to the Preferred Securities is waived by the Holders of Preferred
Securities as provided in the Declaration, the Holders of Common Securities
agree that such waiver shall also constitute the waiver of such Event of Default
with respect to the Common Securities for all purposes under the Declaration
without any further act, vote or consent of the Holders of the Common
Securities.
A waiver of an Indenture Event of Default by the Property Trustee at the
direction of the Holders of the Preferred Securities will constitute a waiver of
the corresponding Event of Default under the Declaration in respect of the
Securities.
Any required approval or direction of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting at which
Holders of Common Securities are entitled to vote to be mailed to each Holder of
record of Common Securities. Each such notice will include a statement setting
forth (i) the date of such meeting, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
and (iii) instructions for the delivery of proxies.
No vote or consent of the Holders of Common Securities will be required for
the Trust to redeem and cancel Common Securities or to distribute the Debentures
in accordance with the Declaration.
6. PRO RATA TREATMENT. A reference in these terms of the Common Securities
to any payment, Distribution or treatment as being "Pro Rata" shall mean pro
rata to each Holder of Securities according to the aggregate liquidation amount
of the Securities held by the relevant Holder in relation to the aggregate
liquidation amount of all Securities outstanding unless, in relation to a
payment, an Event of Default has occurred and is continuing, in which case any
funds available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount
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<PAGE>
of all Preferred Securities outstanding, and only after satisfaction of all
amounts owed to the Holders of the Preferred Securities, to each Holder of
Common Securities pro rata according to the aggregate liquidation amount of
Common Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Common Securities outstanding.
7. RANKING. The Common Securities rank pari passu and payment thereon will
be made Pro Rata with the Preferred Securities, except that when an Event of
Default occurs and is continuing, the rights of Holders of Common Securities to
payment in respect of Distributions and payments upon liquidation, redemption or
otherwise are subordinate to the rights of Holders of the Preferred Securities.
8. TRANSFER, EXCHANGE, METHOD OF PAYMENTS. Payment of Distributions and
payments on redemption of the Common Securities will be payable, the transfer of
the Common Securities will be registrable, and Common Securities will be
exchangeable for Common Securities of other denominations of a like aggregate
liquidation amount, at the principal corporate trust office of the Property
Trustee in The City of New York; provided that payment of Distributions may be
made at the option of the Regular Trustees on behalf of the Trust by check
mailed to the address of the persons entitled thereto and that the payment on
redemption of any Common Security will be made only upon surrender of such
Common Security to the Property Trustee. Notwithstanding the foregoing,
transfers of Common Securities are subject to conditions set forth in Section
9.01(c) of the Declaration.
9. ACCEPTANCE OF INDENTURE. Each Holder of Common Securities, by the
acceptance thereof, agrees to the provisions of Indenture and the Debentures,
including the subordination provisions of the Indenture.
10. NO PREEMPTIVE RIGHTS. The Holders of Common Securities shall have no
preemptive or similar rights to subscribe to any additional Common Securities or
Preferred Securities.
11. MISCELLANEOUS. These terms shall constitute a part of the Declaration.
The Trust will provide a copy of the Declaration and the Indenture to a Holder
of Common Securities without charge on written request to the Trust at its
principal place of business.
C-11
<PAGE>
Annex I
FORM OF COMMON SECURITY CERTIFICATE
TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS
SET FORTH IN THE DECLARATION
REFERRED TO BELOW
Certificate Number Number of Common Securities
__________________ _______________
Certificate Evidencing Common Securities
of
HI Trust I
____% Common Trust Securities, Series A
(liquidation amount $[1,000][25] per Common Security)
HI Trust I, a statutory business trust created under the laws of the State of
Delaware (the "Trust"), hereby certifies that ______________ (the "Holder") is
the registered owner of ____________________________ (_________) common
securities of the Trust representing common undivided beneficial interests in
the assets of the Trust and designated the "____% Common Trust Securities,
Series A" (liquidation amount $[1,000][25] per Common Security) (the "Common
Securities"). The Common Securities are 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 and satisfaction of
the other conditions set forth in the Declaration (as defined below) including,
without limitation, Section 9.01(c) thereof. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this Certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Declaration of Trust of
the Trust dated as of __________, ____, as the same may be amended from time to
time (the "Declaration") including the designation of the terms of Common
Securities as set forth in Exhibit C thereto. The Common Securities and the
Preferred Securities issued by the Trust
C-12
<PAGE>
pursuant to the Declaration represent undivided beneficial interests in the
assets of the Trust, including the Debentures (as defined in the Declaration)
issued by Houston Industries Incorporated, a Texas corporation ("Houston
Industries"), to the Trust pursuant to the Indenture referred to in the
Declaration. The Trust will furnish a copy of the Declaration and the Indenture
to the Holder without charge upon written request to the Trust at its principal
place of business or registered office.
The Holder of this Certificate, by accepting this Certificate, is deemed to
have agreed to the terms of the Indenture and the Debentures, including that the
Debentures are subordinate and junior in right of payment to all Senior Debt (as
defined in the Supplemental Indenture) as and to the extent provided in the
Indenture.
Upon receipt of this Certificate, the Holder is bound by the Declaration and
is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustees of the Trust have executed this Certificate
this ___ day of _____________, ____.
HI TRUST I
By________________________, as Regular Trustee
Name:
Title: Regular Trustee
By_________________________, as Regular Trustee
Name:
Title: Regular Trustee
C-13
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a rate per
annum of ___ % (the "Coupon Rate") of the stated liquidation amount of
$[1,000][25] per Common Security, such rate being the rate of interest payable
on the Debentures to be held by the Property Trustee. Distributions in arrears
for more than one quarter will accumulate additional distributions thereon at
the Coupon Rate per annum (to the extent permitted by applicable law) compounded
quarterly. The term "Distributions" as used herein means such periodic cash
distributions and any such additional distributions payable unless otherwise
stated. A Distribution is payable only to the extent that payments are made in
respect of the Debentures held by the Property Trustee and to the extent the
Trust has funds on hand legally available therefor. 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 for which Distributions
are computed, Distributions will be computed on the basis of the actual number
of days elapsed per 90-day quarter.
Distributions on the Common Securities will accumulate from _________, ____
and will be payable quarterly in arrears, on _____________, ____________,
_____________ and _____________ of each year, commencing on ________, ____, but
only if and to the extent that interest payments are made in respect of the
Debentures held by the Property Trustee. So long as Houston Industries shall
not be in default in the payment of interest on the Debentures, Houston
Industries has the right under the Indenture for the Debentures to defer
payments of interest on the Debentures by extending the interest payment period
at any time and from time to time on the Debentures for a period not exceeding
20 consecutive quarterly interest periods (each an "Extension Period"), during
which Extension Period no interest shall be due and payable on the Debentures.
As a consequence of such deferral, Distributions shall also be deferred.
Despite such deferral, Distributions will continue to accumulate with additional
distributions thereon (to the extent permitted by applicable law but not at a
rate greater than the rate at which interest is then accruing on the Debentures)
at the Coupon Rate compounded quarterly during any such Extension Period;
provided that no Extension Period shall extend beyond the stated maturity of the
Debentures. Prior to the termination of any such Extension Period, Houston
Industries 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 quarterly interest periods. Upon the termination
of any Extension Period and the payment of all amounts then due, Houston
Industries may commence a new Extension Period, subject to the above
requirements. Payments of accumulated Distributions will be payable to Holders
of Common Securities as they appear on
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<PAGE>
the books and records of the Trust on the first record date after the end of the
Extension Period.
The Common Securities shall be redeemable as provided in the Declaration.
C-15
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to:
____________________________________________________________
____________________________________________________________
____________________________________________________________
(Insert assignee's social security or tax identification number)
____________________________________________________________
____________________________________________________________
____________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
____________________________________________________________
____________________________________________________________
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<PAGE>
_____________________________________________________ agent to transfer
this 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 Common
Security Certificate)
C-17
<PAGE>
EXHIBIT 4.4.1
CERTIFICATE OF TRUST
OF
HI TRUST I
THIS CERTIFICATE OF TRUST of HI Trust I (the "Trust"), dated as of January
8, 1999, is being duly executed and filed by the undersigned, as trustees, with
the Secretary of State of the State of Delaware to form a business trust under
the Delaware Business Trust Act (12 Del. Code (S) 3801 et seq.).
1. Name. The name of the business trust being formed hereby is
"HI Trust I."
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware are The Bank
of New York (Delaware), a Delaware banking corporation, White Clay Center, Route
273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective at the
time of its filing with the Secretary of State of the State of Delaware.
<PAGE>
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the Trust
at the time of filing this Certificate of Trust, have executed this Certificate
of Trust as of the date first above written.
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Walter N. Gitlin
--------------------------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Remo J. Reale
-------------------------------------------
Name: Remo J. Reale
Title: Assistant Vice President
WILLIAM T. MASSAR,
as Regular Trustee
/s/ William T. Massar
---------------------------------------------
2
<PAGE>
EXHIBIT 4.4.2
CERTIFICATE OF TRUST
OF
HI TRUST II
THIS CERTIFICATE OF TRUST of HI Trust II (the "Trust"), dated as of January
8, 1999, is being duly executed and filed by the undersigned, as trustees, with
the Secretary of State of the State of Delaware to form a business trust under
the Delaware Business Trust Act (12 Del. Code (S) 3801 et seq.).
1. Name. The name of the business trust being formed hereby is
"HI Trust II."
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware are The Bank
of New York (Delaware), a Delaware banking corporation, White Clay Center, Route
273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective at the
time of its filing with the Secretary of State of the State of Delaware.
<PAGE>
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the Trust
at the time of filing this Certificate of Trust, have executed this Certificate
of Trust as of the date first above written.
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Walter N. Gitlin
----------------------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Remo J. Reale
------------------
Name: Remo J. Reale
Title: Assistant Vice President
WILLIAM T. MASSAR,
as Regular Trustee
/s/ William T. Massar
----------------------
2
<PAGE>
EXHIBIT 4.8
================================================================================
HOUSTON INDUSTRIES INCORPORATED
GUARANTEE AGREEMENT
HI TRUST I
--------------------
Dated as of __________, 1999
--------------------
================================================================================
<PAGE>
TABLE OF CONTENTS
-------------------
Page
----
ARTICLE 1
Definitions
Section 1.01. Definitions............................................. 1
ARTICLE 2
Trust Indenture Act
Section 2.01. Trust Indenture Act; Application........................ 5
Section 2.02. Lists of Holders of Preferred Securities................ 5
Section 2.03. Reports by the Guarantee Trustee........................ 6
Section 2.04. Periodic Reports to the Guarantee Trustee............... 6
Section 2.05. Evidence of Compliance with Conditions Precedent........ 6
Section 2.06. Events of Default; Waiver............................... 7
Section 2.07. Disclosure of Information............................... 7
Section 2.08. Conflicting Interest.................................... 7
ARTICLE 3
Powers, Duties and Rights of The Guarantee Trustee
Section 3.01. Powers and Duties of the Guarantee Trustee.............. 7
Section 3.02. Certain Rights and Duties of the Guarantee Trustee...... 8
Section 3.03. Not Responsible for Recitals or Issuance of Guarantee... 11
Section 3.04. Guarantee Trustee May Own Preferred Securities.......... 11
Section 3.05. Moneys Received by Guarantee Trustee to Be Held In Trust
Without Interest....................................... 11
Section 3.06. Guarantee Trustee Entitled to Compensation,
Reimbursement and Indemnity............................ 11
Section 3.07. Right of Guarantee Trustee to Rely on Certificate of
Officers of Guarantor Where No Other Evidence
Specifically Prescribed................................ 12
ARTICLE 4
Guarantee Trustee
Section 4.01. Qualifications.......................................... 11
Section 4.02. Appointment, Removal and Resignation of the
Guarantee Trustee....................................... 11
ARTICLE 5
Guarantee
Section 5.01. Guarantee............................................... 12
Section 5.02. Waiver of Notice........................................ 12
Section 5.03. Obligations Not Affected................................ 13
Section 5.04. Enforcement of Guarantee................................ 14
Section 5.05. Guarantee of Payment.................................... 14
Section 5.06. Subrogation............................................. 14
Section 5.07. Independent Obligations................................. 15
i
<PAGE>
Page
----
ARTICLE 6
Limitation of Transactions; Subordination
Section 6.01. Limitation of Transactions.............................. 15
Section 6.02. Subordination........................................... 16
ARTICLE 7
Termination
Section 7.01. Termination............................................. 16
ARTICLE 8
Limitation of Liability; Indemnification
Section 8.01. Exculpation............................................. 17
Section 8.02. Indemnification......................................... 17
Section 8.03. Survive Termination..................................... 17
ARTICLE 9
Miscellaneous
Section 9.01. Successors and Assigns.................................. 18
Section 9.02. Amendments.............................................. 18
Section 9.03. Notices................................................. 18
Section 9.04. Genders................................................. 19
Section 9.05. Benefit................................................. 19
Section 9.06. Governing Law........................................... 19
Section 9.07. Counterparts............................................ 19
Section 9.08. Limited Liability....................................... 19
ii
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of __________, 1999, is executed and
delivered by HOUSTON INDUSTRIES INCORPORATED, a Texas corporation (the
"Guarantor"), and The Bank of New York, a New York banking corporation, as the
initial Guarantee Trustee (as defined herein) for the benefit of the Holders (as
defined herein) from time to time of the Preferred Securities (as defined
herein) of HI Trust I, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of ______________, 1999 among the trustees of the
Issuer named therein, HOUSTON INDUSTRIES INCORPORATED, as Sponsor, and the
Holders from time to time of preferred undivided beneficial interests in the
assets of the Issuer, the Issuer may issue up to $_________ aggregate
liquidation amount of its _____% Preferred Trust Securities, Series __ (the
"Preferred Securities") representing preferred undivided beneficial interests in
the assets of the Issuer and having the terms set forth in Exhibit B to the
Declaration, of which $__________ aggregate liquidation amount of Preferred
Securities is being issued as of the date hereof; and
WHEREAS, as incentive for the Holders to purchase Preferred Securities, the
Guarantor desires to irrevocably and unconditionally agree, to the extent set
forth herein, to pay to the Holders the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein;
and
NOW, THEREFORE, in consideration of the purchase by the initial purchasers
thereof of Preferred Securities, which purchase the Guarantor hereby agrees
shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time.
ARTICLE 1
Definitions
Section 1.0. Definitions. (a) Capitalized terms used in this Guarantee
Agreement but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.01;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
<PAGE>
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Commission" means the Securities and Exchange Commission.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer, having the terms set forth in
Exhibit C to the Declaration.
"Debentures" means the series of unsecured junior subordinated debentures
issued by the Guarantor under the Indenture to the Property Trustee and entitled
the "_____% Junior Subordinated Debentures due ____."
"Declaration" has the meaning set forth in the first WHEREAS clause above.
"Distributions" means the periodic distributions and other payments payable
to Holders in accordance with the terms of the Preferred Securities set forth in
Exhibit B to the Declaration.
"Event of Default" means a default by the Guarantor on any of its payment or
other obligations under this Guarantee Agreement; provided, however, that,
except with respect to a default in payment of any Guarantee Payment, any such
default shall constitute an Event of Default only if the Guarantor shall have
2
<PAGE>
received notice of such default and shall not have cured such default within 60
days after receipt of such notice.
"Guarantee Payments" shall mean the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by or on behalf of the Issuer: (i) any accumulated and unpaid
Distributions and the Redemption Price, including all accumulated and unpaid
Distributions to, but excluding, the date of redemption, with respect to the
Preferred Securities called for redemption by the Issuer but only if and to the
extent that in each case the Guarantor has made a payment to the Property
Trustee of interest or principal or premium, if any, on the Debentures and (ii)
upon a voluntary or involuntary dissolution, winding-up or termination of the
Issuer (other than in connection with the distribution of Debentures to Holders
in exchange for Preferred Securities or the redemption of all the Preferred
Securities upon the maturity or redemption of the Debentures as provided in the
Declaration), the lesser of (a) the aggregate of the liquidation amount and all
accumulated and unpaid Distributions on the Preferred Securities to the date of
payment, to the extent the Issuer has funds on hand legally available therefor,
and (b) the amount of assets of the Issuer remaining available for distribution
to Holders in liquidation of the Issuer as required by applicable law (in either
case, the "Liquidation Distribution").
"Guarantee Trustee" means The Bank of New York, a New York banking
corporation, until a Successor Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Guarantee Agreement, and
thereafter means each such Successor Guarantee Trustee.
"Holder" shall mean any holder, as registered on the books and records of
the Issuer, of any Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Guarantee Trustee, any Affiliate of the
Guarantee Trustee, and any officers, directors, shareholders, members, partners,
employees, representatives or agents of the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as of ______ __,
1999 between the Guarantor and The Bank of New York, as trustee, as supplemented
by the ________ Supplemental Indenture thereto dated as of ___________, 1999
(the "Supplemental Indenture"), pursuant to which the Debentures are to be
issued to the Property Trustee.
"Liquidation Distribution" has the meaning specified in the definition of
Guarantee Payments.
3
<PAGE>
"Majority in liquidation amount of the Preferred Securities" means, except
as otherwise required by the Trust Indenture Act, Holder(s) of outstanding
Preferred Securities voting together as a single class, who are the record
owners of Preferred Securities whose liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) represents more than 50% of the liquidation amount
of all outstanding Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chairman of the Board, the Chief Executive Officer, the President
or a Vice President, and by the Treasurer, an Associate Treasurer, an Assistant
Treasurer, the Comptroller, the Secretary or an Assistant Secretary, of such
Person, and delivered to the Guarantee Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 2.04 shall be the principal
executive, financial or accounting officer of the Guarantor. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Guarantee Agreement shall include:
(i) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(ii) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(iii) a statement that each 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
(iv) 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.
"Preferred Securities" has the meaning set forth in the first WHEREAS clause
above.
"Property Trustee" means the Person acting as Property Trustee under the
Declaration.
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"Redemption Price" means the amount payable on redemption of the Preferred
Securities in accordance with the terms of the Preferred Securities.
"Responsible Officer" means, when used with respect to the Guarantee
Trustee, any officer within the corporate trust department of the Guarantee
Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the
Guarantee Trustee who customarily performs functions similar to those performed
by the Persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of such Person's knowledge of and
familiarity with the particular subject and who shall have direct responsibility
for the administration of this Guarantee Agreement.
"Successor Guarantee Trustee" means a successor Guarantee Trustee possessing
the qualifications to act as a Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE 2
Trust Indenture Act
Section 2.01. Trust Indenture Act; Application. (a) This Guarantee
Agreement is subject to the provisions of the Trust Indenture Act that are
required to be part of this Guarantee Agreement and shall, to the extent
applicable, be governed by such provisions;
(b) if and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by (S)(S) 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control; and
(c) the application of the Trust Indenture Act to this Guarantee Agreement
shall not affect the nature of the Preferred Securities as equity securities
representing preferred undivided beneficial interests in the assets of the
Issuer.
Section 2.02. Lists of Holders of Preferred Securities. (a) The Guarantor
shall provide the Guarantee Trustee (unless the Guarantee Trustee is otherwise
the registrar of the Preferred Securities) (i) within 14 days after each record
date for payment of Distributions, a list, in such form as the Guarantee Trustee
may reasonably require, of the names and addresses of the Holders ("List of
Holders") as of such date, and (ii) at any other time within 30 days of receipt
by the Guarantor of a written request for a List of Holders as of a date no more
than 14 days before such List of Holders is given to the Guarantee Trustee;
provided,
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that the Guarantor shall not be obligated to provide such List of Holders at any
time that the List of Holders does not differ from the most recent List of
Holders given to the Guarantee Trustee by the Guarantor. The Guarantee Trustee
shall preserve, in as current a form as is reasonably practicable, all
information contained in the List of Holders given to it; provided, that the
Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) the Guarantee Trustee shall comply with its obligations under (S)(S)
310(b), 311 and 312(b) of the Trust Indenture Act.
Section 2.03. Reports by the Guarantee Trustee. Within 60 days after
January 15 of each year, commencing January 15, 2000, the Guarantee Trustee
shall provide to the Holders such reports as are required by (S) 313 of the
Trust Indenture Act, if any, in the form, in the manner and at the times
provided by (S) 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the other requirements of (S) 313 of the Trust Indenture Act.
A copy of each such report shall, at the time of such transmission to the
Holders, be filed by the Guarantee Trustee with the Company, with each stock
exchange upon which any Preferred Securities are listed (if so listed) and also
with the Commission. The Company agrees to notify the Guarantee Trustee when
any Preferred Securities become listed on any stock exchange and any delisting
thereof.
Section 2.04. Periodic Reports to the Guarantee Trustee. The Guarantor
shall provide to the Guarantee Trustee, the Commission and the Holders, as
applicable, such documents, reports and information as required by (S)
314(a)(1)-(3) (if any) of the Trust Indenture Act and the compliance
certificates required by (S) 314(a)(4) and (c) of the Trust Indenture Act, any
such certificates to be provided in the form, in the manner and at the times
required by (S) 314(a)(4) and (c) of the Trust Indenture Act (provided that any
certificate to be provided pursuant to (S) 314(a)(4) of the Trust Indenture Act
shall be provided within 120 days of the end of each fiscal year of the Issuer).
Delivery of such reports, information and documents to the Guarantee Trustee is
for informational purposes only and the Guarantee Trustee's receipt of such
shall not constitute constructive notice of any information contained therein,
including the Company's compliance with any of its covenants hereunder (as to
which the Guarantee Trustee is entitled to rely exclusively on Officers'
Certificates).
Section 2.05. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Guarantee Agreement
which relate to any of the matters set forth in (S) 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to (S) 314(c) may be given in the form of an Officers' Certificate.
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Section 2.06. Events of Default; Waiver. (a) The Holders of a Majority in
liquidation amount of the Preferred Securities may, by vote, on behalf of the
Holders, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default, or impair any right consequent thereon.
(b) The right of any Holder to receive payment of the Guarantee Payments
in accordance with this Guarantee Agreement, or to institute suit for the
enforcement of any such payment, shall not be impaired without the consent of
each such Holder.
Section 2.07. Disclosure of Information. The disclosure of information as
to the names and addresses of the Holders in accordance with (S) 312 of the
Trust Indenture Act, regardless of the source from which such information was
derived, shall not be deemed to be a violation of any existing law, or any law
hereafter enacted which does not specifically refer to (S) 312 of the Trust
Indenture Act, nor shall the Guarantee Trustee be held accountable by reason of
mailing any material pursuant to a request made under (S) 312(b) of the Trust
Indenture Act.
Section 2.08. Conflicting Interest. The Declaration shall be deemed to be
specifically described in this Guarantee Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE 3
Powers, Duties and Rights of The Guarantee Trustee
Section 3.01. Powers and Duties of the Guarantee Trustee. (a) This
Guarantee Agreement shall be held by the Guarantee Trustee in trust for the
benefit of the Holders. The Guarantee Trustee shall not transfer its right,
title and interest in this Guarantee Agreement to any Person except a Successor
Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its
appointment to act as Guarantee Trustee or to a Holder exercising his or her
rights pursuant to Section 5.04(iv). The right, title and interest of the
Guarantee Trustee to this Guarantee Agreement shall vest automatically in each
Person who may hereafter be appointed as Guarantee Trustee in accordance with
Article 4. Such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
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(c) This Guarantee Agreement and all moneys received by the Property
Trustee in respect of the Guarantee Payments will not be subject to any right,
charge, security interest, lien or claim of any kind in favor of, or for the
benefit of, the Guarantee Trustee or its agents or their creditors.
(d) The Guarantee Trustee shall, within 90 days after the occurrence of an
Event of Default known to a Responsible Officer of the Guarantee Trustee,
transmit by mail, first class postage prepaid, to the Holders, as their names
and addresses appear upon the List of Holders, notice of all such Events of
Default, unless such defaults shall have been cured before the giving of such
notice; provided, that, the Guarantee Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee,
or a trust committee of directors and/or Responsible Officers, of the Guarantee
Trustee in good faith determine that the withholding of such notice is in the
interests of the Holders. The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default except any Event of Default as to which the
Guarantee Trustee shall have received written notice or a Responsible Officer
charged with the administration of this Guarantee Agreement shall have obtained
written notice of such Event of Default.
(e) The Guarantee Trustee shall continue to serve as a trustee until a
Successor Guarantee Trustee has been appointed and accepted that appointment in
accordance with Article 4.
Section 3.02. Certain Rights and Duties of the Guarantee Trustee. (a) The
Guarantee Trustee, before the occurrence of an Event of Default and after the
curing or waiving of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants shall be read into this Guarantee
Agreement against the Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.06), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, 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.
(b) No provision of this Guarantee Agreement shall be construed to relieve
the 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 an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
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(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Guarantee Agreement, and no implied covenants or
obligations shall be read into this Guarantee Agreement against the
Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the 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 Guarantee
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that
by any provision hereof or the Trust Indenture Act are specifically
required to be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Guarantee Agreement or
the Trust Indenture Act, as the case may be;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
(iii) the 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
Preferred Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee Trustee under
this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
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 it shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Guarantee Agreement or
adequate indemnity against such risk or liability is not reasonably assured
to it.
(c) Subject to the provisions of Section 3.02(a) and (b):
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(i) whenever in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Guarantee
Trustee (unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an Officers'
Certificate, which, upon receipt of such request, shall be promptly delivered by
the Guarantor;
(ii) the Guarantee Trustee (A) may consult with counsel (which may be
counsel to the Guarantor or any of its Affiliates and may include any of its
employees) selected by it in good faith and with due care and the written 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 reliance thereon and in
accordance with such advice and opinion and (B) shall have the right at any time
to seek instructions concerning the administration of this Guarantee Agreement
from any court of competent jurisdiction;
(iii) the Guarantee 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 Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed by it in
good faith and with due care;
(iv) the Guarantee Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Guarantee Agreement at the request or
direction of any Holder, unless such Holder shall have offered to the Guarantee
Trustee security and indemnity satisfactory to the Guarantee Trustee against the
costs, expenses (including its attorneys' fees and expenses) and liabilities
that might be incurred by it in complying with such request or direction;
provided that nothing contained in this clause (iv) shall relieve the Guarantee
Trustee of the obligation, upon the occurrence of an Event of Default (which has
not been cured or waived) to exercise such of the rights and powers vested in it
by this Guarantee Agreement, and to use the same degree of care and skill in
this exercise as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs; and
(v) any action taken by the Guarantee Trustee or its agents hereunder
shall bind the Holders and the signature of the Guarantee 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 Guarantee Trustee
to so act, or as to its compliance with
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any of the terms and provisions of this Guarantee Agreement, both of which shall
be conclusively evidenced by the Guarantee Trustee's or its agent's taking such
action.
Section 3.03. Not Responsible for Recitals or Issuance of Guarantee. The
recitals contained in this Guarantee Agreement shall be taken as the statements
of the Guarantor and the Guarantee Trustee does not assume any responsibility
for their correctness. The Guarantee Trustee makes no representations as to the
validity or sufficiency of this Guarantee Agreement.
Section 3.04. Guarantee Trustee May Own Preferred Securities. The Guarantee
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Preferred Securities and may otherwise deal with the Guarantor with
the same rights it would have if it were not Guarantee Trustee.
Section 3.05. Moneys Received by Guarantee Trustee to Be Held In Trust
Without Interest. All moneys received by the Guarantee Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the
extent required by law. The Guarantee Trustee shall be under no liability for
interest on any moneys received by it hereunder except such as it may agree in
writing to pay thereon.
Section 3.06. Guarantee Trustee Entitled to Compensation, Reimbursement and
Indemnity. (a) The Guarantor covenants and agrees to pay to the Guarantee
Trustee from time to time, and the Guarantee Trustee shall be entitled to, such
compensation as the Guarantor and the Guarantee Trustee shall from time to time
agree in writing (which shall not be limited by any provision of law in regard
to the compensation of a Guarantee Trustee of an express trust) for all services
rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the Guarantee
Trustee, and the Guarantor will pay or reimburse the Guarantee Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Guarantee Trustee in accordance with any of the provisions of this
Guarantee Agreement (including the reasonable compensation and the reasonable
expenses and disbursements of its counsel and of 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 covenants to indemnify each of
the Guarantee Trustee or any predecessor Guarantee Trustee and their officers,
agents, directors and employees for, and to hold them harmless against, any and
all loss, liability, damage, claim or expense including taxes (other than taxes
based upon, measured by or determined by the income of the Guarantee Trustee)
incurred without negligence or bad faith on the part of the Guarantee Trustee
and arising out of or in connection with the acceptance or administration of
this trust, including the reasonable costs and expenses of defending itself
against any claim (whether asserted by the Guarantor, any Holder or any other
Person) of liability in the premises. The provisions of this Section 3.06 shall
survive the termination of this Guarantee Agreement and resignation or removal
of the Guarantee Trustee.
(b) The obligations of the Guarantor under this Section 3.06 to compensate and
indemnify the Guarantee Trustee and to pay or reimburse the Guarantee
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 Preferred Securities upon all
property and funds held or collected by the Guarantee Trustee as such,
except funds held in trust for the benefit of the holders of particular
Preferred Securities.
Section 3.07 Right of Guarantee Trustee to Rely on Certificate of Officers
of Guarantor Where No Other Evidence Specifically Prescribed. Except as
otherwise provided in Section 3.02, whenever in the administration of the
provisions of this Guarantee Agreement the Guarantee Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Guarantee Trustee, be
deemed to be conclusively proved and established by an Officers' Certificate
delivered to the Guarantee Trustee and such certificate, in the absence of
negligence or bad faith on the part of the Guarantee Trustee, shall be full
warrant to the Guarantee Trustee for any action taken, suffered or omitted to be
taken by it under the provisions of this Guarantee Agreement upon the faith
thereof.
ARTICLE 4
Guarantee Trustee
Section 4.01. Qualifications. There shall at all times be a Guarantee
Trustee that shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a national banking association or 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 $50,000,000, 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 clause (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.
If at any time the Guarantee Trustee shall cease to satisfy the
requirements of clauses (i) and (ii) above, the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.02. If
the Guarantee Trustee has or shall acquire any "conflicting interest" within the
meaning of (S) 310(b) of the Trust Indenture Act, the Guarantee Trustee and the
Guarantor shall in all respects comply with the provisions of (S) 310(b) of the
Trust Indenture Act.
Section 4.02. Appointment, Removal and Resignation of the Guarantee
Trustee. (a) Subject to Section 4.02(b), the Guarantee Trustee may be appointed
or removed without cause by the Guarantor upon 60 days' prior written notice.
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(b) The Guarantee Trustee shall not be removed in accordance with Section
4.02(a) until a Successor Guarantee Trustee possessing the qualifications to act
as Guarantee Trustee under Section 4.01 has been appointed and has accepted such
appointment by written instrument executed by such Successor Guarantee Trustee
and delivered to the Guarantor and the Guarantee Trustee being removed.
(c) The Guarantee Trustee appointed to office shall hold office until its
successor shall have been appointed or until its removal or resignation.
(d) The Guarantee Trustee may resign from office (without need for prior
or subsequent accounting) by an instrument (a "Resignation Request") in writing
signed by the Guarantee Trustee and delivered to the Guarantor, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that no such resignation of the Guarantee
Trustee shall be effective until a Successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.01 has been appointed
and has accepted such appointment by instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(e) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 60 days after
delivery to the Guarantor of a notice of removal or a Resignation Request, the
Guarantee Trustee being removed or resigning as the case may be may petition any
court of competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a Successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.01.
ARTICLE 5
Guarantee
Section 5.01. 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), as and when due, regardless of any
defense, right of set-off or counterclaim which the Issuer may have or assert.
The Guarantor's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders or by
causing the Issuer to pay such amounts to the Holders.
Section 5.02. Waiver of Notice. The Guarantor hereby waives notice of
acceptance of this Guarantee Agreement and of any liability to which it applies
or
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may apply, presentment, demand for payment, any right to require a proceeding
first against the Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands. Notwithstanding anything to the
contrary herein, the Guarantor retains all of its rights under the Indenture to
extend the interest payment period on the Debentures and the Guarantor shall not
be obligated hereunder to make any Guarantee Payment during any Extended
Interest Payment Period (as defined in the Supplemental Indenture) with respect
to the Distributions on the Preferred Securities.
Section 5.03. Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee Agreement shall in
no way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the 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 (other than an extension of time for payment of
Distributions that result from any Extended Interest Payment Period), Redemption
Price, Liquidation Distribution (as defined in the Declaration) or any other
sums payable under the terms of the Preferred Securities or the extension of
time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions that result from any Extended Interest Payment Period);
(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 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 Preferred
Securities;
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(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.03 that the obligations of the Guarantor with respect to the
Guarantee Payments shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
Section 5.04. Enforcement of Guarantee. The Guarantor and the Guarantee
Trustee expressly acknowledge that (i) this Guarantee Agreement will be
deposited with the Guarantee Trustee to be held for the benefit of the Holders;
(ii) the Guarantee Trustee has the right to enforce this Guarantee Agreement on
behalf of the Holders; (iii) Holders representing not less than a Majority in
liquidation amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Guarantee Agreement or exercising any
trust or other power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) if the Guarantee Trustee fails to enforce this Guarantee
Agreement as provided in clauses (ii) and (iii) above, any Holder may institute
a legal proceeding directly against the Guarantor to enforce its rights under
this Guarantee Agreement, without first instituting a legal proceeding against
the Issuer, the Guarantee Trustee or any other Person. Notwithstanding the
foregoing, if the Guarantor has failed to make a Guarantee Payment, a Holder may
directly institute a proceeding against the Guarantor for enforcement of this
Guarantee Agreement for such payment without first instituting a legal
proceeding against the Issuer, the Guarantee Trustee or any other Person.
Section 5.05. Guarantee of Payment. This Guarantee Agreement creates a
guarantee of payment and not merely of collection. This Guarantee Agreement
will not be discharged except by payment of the Guarantee Payments in full
(without duplication of amounts theretofore paid by the Issuer) or upon the
distribution of the Debentures to the Holders as provided in the Declaration.
Section 5.06. Subrogation. The Guarantor shall be subrogated to all (if
any) rights of the Holders against the Issuer in respect of any amounts paid to
the Holders by the Guarantor under this Guarantee Agreement; provided, however,
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights which it may
acquire by way of subrogation or any indemnity, reimbursement or other
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agreement, in all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
Section 5.07. Independent Obligations. The Guarantor acknowledges that its
obligations hereunder are independent of the obligations of the Issuer with
respect to the 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 Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.03 hereof.
ARTICLE 6
Limitation of Transactions; Subordination
Section 6.01. Limitation of Transactions. So long as any Preferred
Securities remain outstanding, the Guarantor agrees that it will not declare or
pay dividends on, or redeem, purchase, acquire or make a distribution or
liquidation payment with respect to, any of its common stock or preferred stock
(other than (a) dividends or distributions in shares of, or options, warrants,
rights to subscribe for or purchase shares of, common stock of the Guarantor,
(b) any declaration of a dividend in connection with the implementation of a
shareholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (c)
as a result of a reclassification of the Guarantor's capital stock or the
exchange or the conversion of one class or series of the Guarantor's capital
stock for another class or series of the Guarantor's capital stock, (d) the
payment of accrued dividends and the purchase of fractional interests in shares
of the Guarantor's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
or (e) purchases of the Guarantor's common stock related to the issuance of the
Guarantor's common stock or rights under any of the Guarantor's benefit plans
for its directors, officers or employees, any of the Guarantor's dividend
reinvestment plans or stock purchase plans, or any of the benefit plans of any
of the Guarantor's Affiliates, for such Affiliate's directors, officers or
employees) or make any guarantee payment with respect thereto, if at such time
(i) the Guarantor shall be in default with respect to its Guarantee Payments or
other payment obligations hereunder, (ii) there shall have occurred any event of
default under the Declaration or (iii) the Guarantor shall have given notice of
its election of an Extended Interest Payment Period and such period, or any
extension thereof, is continuing. In addition, so long as any Preferred
Securities remain outstanding, the Guarantor agrees that it (i) will remain the
sole direct or indirect owner of all
15
<PAGE>
of the outstanding Common Securities and shall not cause or permit the Common
Securities to be transferred except to the extent such transfer is permitted
under Section 9.01 of the Declaration; provided that any permitted successor of
the Guarantor under the Indenture may succeed to the Guarantor's ownership of
the Common Securities and (ii) will use reasonable efforts to cause the Issuer
to continue to be treated as a grantor trust for United States federal income
tax purposes except in connection with a distribution of Debentures as provided
in the Declaration.
Section 6.02. Subordination. This Guarantee Agreement will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
in right of payment to all other liabilities of the Guarantor, including the
Debentures, except those made pari passu or subordinate by their terms, and (ii)
senior to all capital stock (other than the most senior preferred stock issued,
from time to time, if any, by the Guarantor, which preferred stock will rank
pari passu with this Guarantee Agreement) now or hereafter issued by the
Guarantor and to any guarantee now or hereafter entered into by the Guarantor in
respect of any of its capital stock (other than the most senior preferred stock
issued, from time to time, if any, by the Guarantor). The Guarantor's
obligations under this Guarantee Agreement will rank pari passu with respect to
obligations under other guarantee agreements which it may enter into from time
to time to the extent that (i) such agreements shall be entered into in
substantially the form hereof and provide for comparable guarantees by the
Guarantor of payment on preferred securities issued by other trusts,
partnerships or other entities affiliated with the Guarantor that are financing
vehicles of the Guarantor and (ii) the debentures or other evidences of
indebtedness of the Guarantor relating to such preferred securities are junior
subordinated, unsecured indebtedness of the Guarantor.
ARTICLE 7
Termination
Section 7.01. Termination. This Guarantee Agreement shall terminate and be
of no further force and effect (i) upon full payment of the Redemption Price of
all Preferred Securities, (ii) upon the distribution of Debentures to Holders
and holders of Common Securities in exchange for all of the Preferred Securities
and Common Securities or (iii) upon full payment of the amounts payable in
accordance with the Declaration upon liquidation of the Issuer. Notwithstanding
the foregoing, this Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid with respect to the Preferred Securities or under this
Guarantee Agreement.
16
<PAGE>
ARTICLE 8
Limitation of Liability; Indemnification
Section 8.01. Exculpation. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Guarantor or any
Holder 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 Guarantee Agreement and in a manner such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Guarantee Agreement 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 negligence or willful misconduct with respect to such acts
or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
Section 8.02. Indemnification. To the fullest extent permitted by
applicable law, the Guarantor shall indemnify and hold harmless each Indemnified
Person from and against any loss, liability, expense, damage or claim incurred
by such Indemnified Person by reason of any act or omission performed or omitted
by such Indemnified Person in good faith in accordance with this Guarantee
Agreement and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Guarantee Agreement, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, liability, expense, damage or claim incurred
by such Indemnified Person by reason of negligence or willful misconduct with
respect to such acts or omissions.
Section 8.03. Survive Termination. The provisions of Sections 8.01 and 8.02
shall survive the termination of this Guarantee Agreement or the resignation or
removal of the Guarantee Trustee.
17
<PAGE>
ARTICLE 9
Miscellaneous
Section 9.01. Successors and Assigns. All guarantees and agreements
contained in this Guarantee Agreement shall bind the successors, assignees,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is permitted under
Article Ten of the Indenture, the Guarantor shall not assign its obligations
hereunder.
Section 9.02. Amendments. Except with respect to any changes which do not
adversely affect the rights of Holders in any material respect (in which case no
consent of Holders will be required), this Guarantee Agreement may only be
amended with the prior approval of the Guarantor and the Holders of not less
than a Majority in liquidation amount of the Preferred Securities. The
provisions of Section 12.02 of the Declaration concerning meetings of Holders
shall apply to the giving of such approval.
Section 9.03. Notices. Any notice, request or other communication required
or permitted to be given hereunder shall be in writing, duly signed by the party
giving such notice, and delivered, telecopied or mailed by first class mail as
follows:
(a) if given to the Guarantor, to the address set forth below or such
other address as the Guarantor may give notice of to the Holders:
Houston Industries Incorporated
1111 Louisiana
Houston, Texas 77002
Attention: Corporate Secretary
Telecopy: (713)
(b) if given to the Guarantee Trustee, to the address set forth below or
such other address as the Guarantee Trustee may give notice of to the Holders:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Telecopy: (212) 815-5915
18
<PAGE>
(c) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
Section 9.04. Genders. The masculine, feminine and neuter genders used
herein shall include the masculine, feminine and neuter genders.
Section 9.05. Benefit. This Guarantee Agreement is solely for the benefit
of the Holders and subject to Section 3.01(a) is not separately transferable
from the Preferred Securities.
Section 9.06. Governing Law. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS).
Section 9.07. Counterparts. This Guarantee Agreement may be executed in
counterparts, each of which shall be an original; but such counterparts shall
together constitute one and the same instrument.
Section 9.08. Limited Liability. The Holders, in their capacities as such,
shall not be personally liable for any liabilities or obligations of the
Guarantor arising out of this Guarantee Agreement, and the parties hereby agree
that the Holders, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to the stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
19
<PAGE>
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
HOUSTON INDUSTRIES INCORPORATED
By:
_______________________________________
Name:
Title:
THE BANK OF NEW YORK
As Guarantee Trustee
By:
_______________________________________
Name:
Title:
20
<PAGE>
[BAKER & BOTTS LETTERHEAD APPEARS HERE]
January 15, 1999
Houston Industries Incorporated
Houston Industries Plaza
1111 Louisiana Street
Houston, Texas 77002
Ladies and Gentlemen:
We have acted as counsel for Houston Industries Incorporated, a Texas
corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-3 (the "Registration Statement"), filed by HI
Trust I and HI Trust II, each a statutory business trust created under the laws
of the State of Delaware (the "Trusts"), and the Company with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), on January 15, 1999, relating to the proposed
issuance and sale from time to time of up to (i) $500,000,000 aggregate
principal amount of the Company's Junior Subordinated Debt Securities (the
"Debt Securities"), each series of which will be issued pursuant to a Junior
Subordinated Indenture (the "Indenture") to be entered into between the Company
and The Bank of New York, as Trustee, as such Indenture will be supplemented, in
connection with the issuance of each such series, by a supplemental indenture
creating such series (each, a "Supplemental Indenture"), (ii) $500,000,000
aggregate liquidation amount of preferred securities of the Trusts (the
"Preferred Securities") and (iii) the Company's guarantees with respect to the
Preferred Securities (each, a "Guarantee" and, collectively, the "Guarantees"),
each of which Guarantees will be issued pursuant to a guarantee agreement
between the Company and The Bank of New York as Trustee thereunder (each, a
"Guarantee Agreement" and, collectively, the "Guarantee Agreements").
Capitalized terms used but not otherwise defined herein shall have the meanings
assigned to them in the Registration Statement.
In our capacity as your counsel in the connection referred to above,
we have examined the Restated Articles of Incorporation and Bylaws of the
Company, as amended to date, forms (filed as exhibits to the Registration
Statement) of the Indenture and the Guarantee Agreements, and have examined the
originals, or copies certified or otherwise identified, of corporate records of
the Company, including minute books of the Company as furnished to us by the
Company, certificates of public officials and of representatives of the Company,
statutes and other instruments or documents, as a basis for the opinions
hereinafter expressed. In giving such opinions, we have relied upon
certificates of officers of the Company with respect to the accuracy of the
material factual matters contained in such certificates. In making our
examination, we have assumed that all signatures on documents examined by us are
genuine, that all documents submitted to us as originals are authentic and that
all documents submitted to us as certified or photostatic copies conform with
the original copies of such documents.
<PAGE>
Houston Industries Incorporated -2- January 15, 1999
On the basis of the foregoing, and subject to the assumptions,
limitations and qualifications set forth herein, we are of the opinion that:
1. With respect to a series of Debt Securities, when (i) the
Indenture and the Supplemental Indenture relating to such series of Debt
Securities have been duly authorized and validly executed and delivered by each
of the parties thereto; (ii) the Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended; (iii) the Board of Directors of the
Company (the "Board") has taken all necessary corporate action to approve and
establish the terms of such series of Debt Securities, to approve the issuance
thereof and the terms of the offering thereof and related matters; and (iv) such
Debt Securities have been duly executed, authenticated, issued and delivered in
accordance with the provisions of the Indenture and the Supplemental Indenture
relating to such series of Debt Securities and the provisions of the applicable
definitive purchase, underwriting or similar agreement approved by the Board
upon payment of the consideration therefor provided for therein, such Debt
Securities will constitute legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as the
enforceability thereof is subject to the effect of (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other laws relating to or
affecting creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
2. With respect to a Guarantee to be issued pursuant to the
applicable Guarantee Agreement, when (i) such Guarantee Agreement has been duly
authorized, validly executed and delivered by each of the parties thereto and
(ii) such Guarantee Agreement has been duly qualified under the Trust Indenture
Act of 1939, as amended, such Guarantee will constitute a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as the enforceability thereof is subject to the effect of
(i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other laws relating to or affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
The opinions set forth above are limited in all respects to matters of
Texas law and the contract law of the State of New York as in effect on the date
hereof. At your request, this opinion is being furnished to you for filing as
Exhibit 5 to the Registration Statement. Additionally, we hereby consent to the
reference to our Firm under the caption "Legal Matters" in the Registration
Statement. In giving such consent, we do not thereby concede that we are within
the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Commission promulgated
thereunder.
Very truly yours,
<PAGE>
[Letterhead of Richards, Layton & Finger, P.A.]
January 15, 1999
HI Trust I
c/o Houston Industries Incorporated
Houston Industries Plaza
1111 Louisiana
Houston, Texas 77002
Re: HI Trust I
----------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Houston Industries
Incorporated, a Texas corporation (the "Company"), and HI Trust I, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of January 8, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on January 11, 1999;
(b) The Declaration of Trust of the Trust, dated as of January 8,
1999, among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Declaration of Trust of the Trust
(including Exhibits A, B and C thereto) (the "Declaration"), to be entered into
among the Company, as sponsor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) The Registration Statement on Form S-3 (the "Registration
<PAGE>
HI Trust I
January 15, 1999
Page 2
Statement"), including a prospectus ("Prospectus"), relating to the Preferred
Securities of the Trust representing undivided beneficial interests in the
assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the Company, the Trust and
others with the Securities and Exchange Commission on or about January 15, 1999;
and
(e) A Certificate of Good Standing for the Trust, dated January 15,
1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Declaration
and the Certificate are in full force and effect and have not been amended, (ii)
except to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a Preferred Security Certificate for such Preferred
Security and the payment for the Preferred Security acquired by it, in
accordance with the Declaration and the Registration Statement,
<PAGE>
HI Trust I
January 15, 1999
Page 3
and (vii) that the Preferred Securities are issued and sold to the Preferred
Security Holders in accordance with the Declaration and the Registration
Statement. We have not participated in the preparation of the Registration
Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Legal Matters" in
the Prospectus. In giving the foregoing consents, we do not thereby admit that
we come within the category of Persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
<PAGE>
[Letterhead of Richards, Layton & Finger, P.A.]
January 15, 1999
HI Trust II
c/o Houston Industries Incorporated
Houston Industries Plaza
1111 Louisiana
Houston, Texas 77002
Re: HI Trust II
-----------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Houston Industries
Incorporated, a Texas corporation (the "Company"), and HI Trust II, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of January 8, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on January 11, 1999;
(b) The Declaration of Trust of the Trust, dated as of January 8,
1999, among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Declaration of Trust of the Trust
(including Exhibits A, B and C thereto) (the "Declaration"), to be entered into
among the Company, as sponsor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) The Registration Statement on Form S-3 (the "Registration
<PAGE>
HI Trust II
January 15, 1999
Page 2
Statement"), including a prospectus ("Prospectus"), relating to the Preferred
Securities of the Trust representing undivided beneficial interests in the
assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the Company, the Trust and
others with the Securities and Exchange Commission on or about January 15, 1999;
and
(e) A Certificate of Good Standing for the Trust, dated January 15,
1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Declaration
and the Certificate are in full force and effect and have not been amended, (ii)
except to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a Preferred Security Certificate for such Preferred
Security and the payment for the Preferred Security acquired by it, in
accordance with the Declaration and the Registration Statement,
<PAGE>
HI Trust II
January 15, 1999
Page 3
and (vii) that the Preferred Securities are issued and sold to the Preferred
Security Holders in accordance with the Declaration and the Registration
Statement. We have not participated in the preparation of the Registration
Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Legal Matters" in
the Prospectus. In giving the foregoing consents, we do not thereby admit that
we come within the category of Persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Houston Industries Incorporated (the "Company") on Form S-3 of our report dated
February 20, 1998 appearing in the Annual Report on Form 10-K of the Company for
the year ended December 31, 1997 and to the reference to us under the heading
"Experts" in the Prospectus, which is a part of this Registration Statement.
DELOITTE & TOUCHE LLP
Houston, Texas
January 14, 1999
<PAGE>
================================================================================
EXHIBIT 25.1
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
HOUSTON INDUSTRIES INCORPORATED
(Exact name of obligor as specified in its charter)
Texas 74-0694415
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1111 Louisiana
Houston, Texas 77002
(Address of principal executive offices) (Zip code)
______________________
Junior Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
- -------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7A-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 12th day of January, 1999.
THE BANK OF NEW YORK
By: /s/ THOMAS C. KNIGHT
-----------------------------------------
Name: THOMAS C. KNIGHT
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business June 30, 1996, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin........... $ 7,301,241
Interest-bearing balances.................................... 1,385,944
Securities:
Held-to-maturity securities.................................. 1,000,737
Available-for-sale securities................................ 4,240,655
Federal funds sold and Securities purchased under agreements
to resell.................................................... 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned income...........38,788,269
LESS: Allowance for loan and lease losses.............632,875
LESS: Allocated transfer risk reserve.......................0
Loans and leases, net of unearned income, allowance, and
reserve.................................................... 38,155,394
Assets held in trading accounts................................ 1,307,562
Premises and fixed assets (including capitalized leases)....... 670,445
Other real estate owned........................................ 13,598
Investments in unconsolidated subsidiaries and associated
companies.................................................... 215,024
Customers' liability to this bank on acceptances outstanding... 974,237
Intangible assets.............................................. 1,102,625
Other assets................................................... 1,944,777
-----------
Total assets................................................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices.......................................... $25,930,258
Noninterest-bearing................................11,579,390
Interest-bearing...................................15,350,868
In foreign offices, Edge and Agreement subsidiaries,
and IBFs................................................... 16,117,854
Noninterest-bearing...................................187,464
Interest-bearing...................................15,930,390
Federal funds purchased and Securities sold under agreements
to repurchase................................................ 2,170,238
Demand notes issued to the U.S. Treasury....................... 300,000
Trading liabilities............................................ 1,310,867
Other borrowed money:
With remaining maturity of one year or less.................. 2,549,479
With remaining maturity of more than one year through three
years...................................................... 0
With remaining maturity of more than three years............. 46,654
Bank's liability on acceptances executed and outstanding....... 983,398
Subordinated notes and debentures.............................. 1,314,000
Other liabilities.............................................. 2,295,520
-----------
Total liabilities.............................................. 54,018,268
-----------
EQUITY CAPITAL
Common stock................................................... 1,135,284
Surplus........................................................ 731,319
Undivided profits and capital reserves......................... 3,385,227
Net unrealized holding gains (losses) on available-for-sale
securities................................................... 51,233
Cumulative foreign currency translation adjustments............ (37,639)
-----------
Total equity capital........................................... 5,265,424
-----------
Total liabilities and equity capital........................... $59,283,692
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
------------------------------
<PAGE>
================================================================================
EXHIBIT 25.2
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
HI TRUST I
(Exact name of obligor as specified in its charter)
Delaware ___ - ________
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1111 Louisiana
Houston, Texas 77002
(Address of principal executive offices) (Zip code)
______________________
Trust Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
- -------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7A-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 12th day of January, 1999.
THE BANK OF NEW YORK
By: /s/ THOMAS C. KNIGHT
---------------------------------
Name: THOMAS C. KNIGHT
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business June 30, 1996, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin........... $ 7,301,241
Interest-bearing balances.................................... 1,385,944
Securities:
Held-to-maturity securities.................................. 1,000,737
Available-for-sale securities................................ 4,240,655
Federal funds sold and Securities purchased under agreements
to resell.................................................... 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned income...........38,788,269
LESS: Allowance for loan and lease losses.............632,875
LESS: Allocated transfer risk reserve.......................0
Loans and leases, net of unearned income, allowance, and
reserve.................................................... 38,155,394
Assets held in trading accounts................................ 1,307,562
Premises and fixed assets (including capitalized leases)....... 670,445
Other real estate owned........................................ 13,598
Investments in unconsolidated subsidiaries and associated
companies.................................................... 215,024
Customers' liability to this bank on acceptances outstanding... 974,237
Intangible assets.............................................. 1,102,625
Other assets................................................... 1,944,777
-----------
Total assets................................................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices.......................................... $25,930,258
Noninterest-bearing................................11,579,390
Interest-bearing...................................15,350,868
In foreign offices, Edge and Agreement subsidiaries,
and IBFs................................................... 16,117,854
Noninterest-bearing...................................187,464
Interest-bearing...................................15,930,390
Federal funds purchased and Securities sold under agreements
to repurchase................................................ 2,170,238
Demand notes issued to the U.S. Treasury....................... 300,000
Trading liabilities............................................ 1,310,867
Other borrowed money:
With remaining maturity of one year or less.................. 2,549,479
With remaining maturity of more than one year through three
years...................................................... 0
With remaining maturity of more than three years............. 46,654
Bank's liability on acceptances executed and outstanding....... 983,398
Subordinated notes and debentures.............................. 1,314,000
Other liabilities.............................................. 2,295,520
-----------
Total liabilities.............................................. 54,018,268
-----------
EQUITY CAPITAL
Common stock................................................... 1,135,284
Surplus........................................................ 731,319
Undivided profits and capital reserves......................... 3,385,227
Net unrealized holding gains (losses) on available-for-sale
securities................................................... 51,233
Cumulative foreign currency translation adjustments............ (37,639)
-----------
Total equity capital........................................... 5,265,424
-----------
Total liabilities and equity capital........................... $59,283,692
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
------------------------------
<PAGE>
================================================================================
EXHIBIT 25.3
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
HI TRUST II
(Exact name of obligor as specified in its charter)
Delaware ___ - ________
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1111 Louisiana
Houston, Texas 77002
(Address of principal executive offices) (Zip code)
______________________
Trust Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
- ------------------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7A-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 12th day of January, 1999.
THE BANK OF NEW YORK
By: /s/THOMAS C. KNIGHT
-----------------------------------
Name: THOMAS C. KNIGHT
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business June 30, 1996, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin........... $ 7,301,241
Interest-bearing balances.................................... 1,385,944
Securities:
Held-to-maturity securities.................................. 1,000,737
Available-for-sale securities................................ 4,240,655
Federal funds sold and Securities purchased under agreements
to resell.................................................... 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned income...........38,788,269
LESS: Allowance for loan and lease losses.............632,875
LESS: Allocated transfer risk reserve.......................0
Loans and leases, net of unearned income, allowance, and
reserve.................................................... 38,155,394
Assets held in trading accounts................................ 1,307,562
Premises and fixed assets (including capitalized leases)....... 670,445
Other real estate owned........................................ 13,598
Investments in unconsolidated subsidiaries and associated
companies.................................................... 215,024
Customers' liability to this bank on acceptances outstanding... 974,237
Intangible assets.............................................. 1,102,625
Other assets................................................... 1,944,777
-----------
Total assets................................................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices.......................................... $25,930,258
Noninterest-bearing................................11,579,390
Interest-bearing...................................15,350,868
In foreign offices, Edge and Agreement subsidiaries,
and IBFs................................................... 16,117,854
Noninterest-bearing...................................187,464
Interest-bearing...................................15,930,390
Federal funds purchased and Securities sold under agreements
to repurchase................................................ 2,170,238
Demand notes issued to the U.S. Treasury....................... 300,000
Trading liabilities............................................ 1,310,867
Other borrowed money:
With remaining maturity of one year or less.................. 2,549,479
With remaining maturity of more than one year through three
years...................................................... 0
With remaining maturity of more than three years............. 46,654
Bank's liability on acceptances executed and outstanding....... 983,398
Subordinated notes and debentures.............................. 1,314,000
Other liabilities.............................................. 2,295,520
-----------
Total liabilities.............................................. 54,018,268
-----------
EQUITY CAPITAL
Common stock................................................... 1,135,284
Surplus........................................................ 731,319
Undivided profits and capital reserves......................... 3,385,227
Net unrealized holding gains (losses) on available-for-sale
securities................................................... 51,233
Cumulative foreign currency translation adjustments............ (37,639)
-----------
Total equity capital........................................... 5,265,424
-----------
Total liabilities and equity capital........................... $59,283,692
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
------------------------------
<PAGE>
================================================================================
EXHIBIT 25.4
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
HOUSTON INDUSTRIES INCORPORATED
(Exact name of obligor as specified in its charter)
Texas 74-0694415
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1111 Louisiana
Houston, Texas 77002
(Address of principal executive offices) (Zip code)
______________________
Guarantee of Trust Preferred Securities of HI Trust I
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
- ------------------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7A-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 12th day of January, 1999.
THE BANK OF NEW YORK
By: /s/ THOMAS C. KNIGHT
--------------------------------
Name: THOMAS C. KNIGHT
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business June 30, 1996, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin........... $ 7,301,241
Interest-bearing balances.................................... 1,385,944
Securities:
Held-to-maturity securities.................................. 1,000,737
Available-for-sale securities................................ 4,240,655
Federal funds sold and Securities purchased under agreements
to resell.................................................... 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned income...........38,788,269
LESS: Allowance for loan and lease losses.............632,875
LESS: Allocated transfer risk reserve.......................0
Loans and leases, net of unearned income, allowance, and
reserve.................................................... 38,155,394
Assets held in trading accounts................................ 1,307,562
Premises and fixed assets (including capitalized leases)....... 670,445
Other real estate owned........................................ 13,598
Investments in unconsolidated subsidiaries and associated
companies.................................................... 215,024
Customers' liability to this bank on acceptances outstanding... 974,237
Intangible assets.............................................. 1,102,625
Other assets................................................... 1,944,777
-----------
Total assets................................................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices.......................................... $25,930,258
Noninterest-bearing................................11,579,390
Interest-bearing...................................15,350,868
In foreign offices, Edge and Agreement subsidiaries,
and IBFs................................................... 16,117,854
Noninterest-bearing...................................187,464
Interest-bearing...................................15,930,390
Federal funds purchased and Securities sold under agreements
to repurchase................................................ 2,170,238
Demand notes issued to the U.S. Treasury....................... 300,000
Trading liabilities............................................ 1,310,867
Other borrowed money:
With remaining maturity of one year or less.................. 2,549,479
With remaining maturity of more than one year through three
years...................................................... 0
With remaining maturity of more than three years............. 46,654
Bank's liability on acceptances executed and outstanding....... 983,398
Subordinated notes and debentures.............................. 1,314,000
Other liabilities.............................................. 2,295,520
-----------
Total liabilities.............................................. 54,018,268
-----------
EQUITY CAPITAL
Common stock................................................... 1,135,284
Surplus........................................................ 731,319
Undivided profits and capital reserves......................... 3,385,227
Net unrealized holding gains (losses) on available-for-sale
securities................................................... 51,233
Cumulative foreign currency translation adjustments............ (37,639)
-----------
Total equity capital........................................... 5,265,424
-----------
Total liabilities and equity capital........................... $59,283,692
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
------------------------------
<PAGE>
================================================================================
EXHIBIT 25.5
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
HOUSTON INDUSTRIES INCORPORATED
(Exact name of obligor as specified in its charter)
Texas 74-0694415
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1111 Louisiana
Houston, Texas 77002
(Address of principal executive offices) (Zip code)
______________________
Guarantee of Trust Preferred Securities of HI Trust II
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
- ------------------------------------------------------------------------------
Name Address
- ------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7A-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 12th day of January, 1999.
THE BANK OF NEW YORK
By: /s/ THOMAS C. KNIGHT
-----------------------------------
Name: THOMAS C. KNIGHT
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business June 30, 1996, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin........... $ 7,301,241
Interest-bearing balances.................................... 1,385,944
Securities:
Held-to-maturity securities.................................. 1,000,737
Available-for-sale securities................................ 4,240,655
Federal funds sold and Securities purchased under agreements
to resell.................................................... 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned income...........38,788,269
LESS: Allowance for loan and lease losses.............632,875
LESS: Allocated transfer risk reserve.......................0
Loans and leases, net of unearned income, allowance, and
reserve.................................................... 38,155,394
Assets held in trading accounts................................ 1,307,562
Premises and fixed assets (including capitalized leases)....... 670,445
Other real estate owned........................................ 13,598
Investments in unconsolidated subsidiaries and associated
companies.................................................... 215,024
Customers' liability to this bank on acceptances outstanding... 974,237
Intangible assets.............................................. 1,102,625
Other assets................................................... 1,944,777
-----------
Total assets................................................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices.......................................... $25,930,258
Noninterest-bearing................................11,579,390
Interest-bearing...................................15,350,868
In foreign offices, Edge and Agreement subsidiaries,
and IBFs................................................... 16,117,854
Noninterest-bearing...................................187,464
Interest-bearing...................................15,930,390
Federal funds purchased and Securities sold under agreements
to repurchase................................................ 2,170,238
Demand notes issued to the U.S. Treasury....................... 300,000
Trading liabilities............................................ 1,310,867
Other borrowed money:
With remaining maturity of one year or less.................. 2,549,479
With remaining maturity of more than one year through three
years...................................................... 0
With remaining maturity of more than three years............. 46,654
Bank's liability on acceptances executed and outstanding....... 983,398
Subordinated notes and debentures.............................. 1,314,000
Other liabilities.............................................. 2,295,520
-----------
Total liabilities.............................................. 54,018,268
-----------
EQUITY CAPITAL
Common stock................................................... 1,135,284
Surplus........................................................ 731,319
Undivided profits and capital reserves......................... 3,385,227
Net unrealized holding gains (losses) on available-for-sale
securities................................................... 51,233
Cumulative foreign currency translation adjustments............ (37,639)
-----------
Total equity capital........................................... 5,265,424
-----------
Total liabilities and equity capital........................... $59,283,692
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
------------------------------
