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EXHIBIT 4.05
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ENRON CORP.
AND
XXXXXX TRUST AND SAVINGS BANK,
TRUSTEE
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FOURTH SUPPLEMENTAL INDENTURE
Dated as of August ___, 1999
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SUPPLEMENTAL INDENTURE TO INDENTURE DATED AS OF NOVEMBER 1, 1985
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FOURTH SUPPLEMENTAL INDENTURE dated as of August __, 1999 (this
"Supplemental Indenture"), made and entered into by and between ENRON CORP., a
corporation organized and existing under the laws of the State of Oregon having
its principal office at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000 (the "Company")
and XXXXXX TRUST AND SAVINGS BANK, a corporation duly organized and existing
under the laws of the State of Illinois, as trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company entered into an Indenture dated as of November 1,
1985 with the Trustee (the "Indenture") for the purpose of issuing notes,
debentures or other evidences of indebtedness to be issued in one or more series
(the "Securities"), in such principal amount or amounts as may from time to time
be authorized by or pursuant to the authority granted in one or more resolutions
of the Board of Directors of the Company; and
WHEREAS, the Company and the Trustee have amended the Indenture
pursuant to a First Supplemental Indenture dated as of December 1, 1995 (the
"First Supplemental Indenture"), a Supplemental Indenture dated as of May 8,
1997 and a Third Supplemental Indenture dated as of September 1, 1997; and
WHEREAS, the Company proposes to issue a series of Securities
denominated its "___% Exchangeable Notes due ________ ___, 2002 " representing
up to 11,500,000 of its Exchangeable Notes (such Securities being referred to
herein as the "2002 Exchangeable Notes"), the principal amount at Maturity of
which is mandatorily exchangeable into shares of common stock, par value $.01
per share, of Enron Oil & Gas Company at the Exchange Rate as described herein;
and
WHEREAS, Sections 901(7) and (9) of the Indenture provide that without
the consent of the Holders of outstanding Securities, the Company, when
authorized by or pursuant to the authority granted in a resolution of the Board
of Directors, may enter into one or more indentures supplemental to the
Indenture to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301 thereof, to cure any ambiguity, to correct or
supplement any provision in the Indenture which may be inconsistent with any
other provision of the Indenture, or to make any other provisions with respect
to matters or questions arising under the Indenture, provided such action shall
not adversely affect the interests of the Holders of Securities of any series in
any material respect; and
WHEREAS, the entry into this Supplemental Indenture by the parties
hereto is in all respects authorized by the provisions of the Indenture; and
WHEREAS, all things necessary to make this Supplemental Indenture a
valid agreement of the Company, in accordance with its terms, have been done;
NOW, THEREFORE, in consideration of the premises and purchase of the
Securities by the Holders thereof, and for other valuable consideration, the
receipt whereof is hereby acknowledged, the Company, for itself and its
successors, does hereby covenant and agree to and with the Trustee and its
successors in said trust for the equal and proportionate benefit of all Holders
of the Securities or of series thereof, without preference, priority or
distinction of any Securities over any of the others by reason of difference in
series or priority in time of issuance, negotiation or maturity thereof, or
otherwise except as otherwise provided in the Indenture or this Supplemental
Indenture, as follows:
SECTION 1. Section 401 of the Indenture is hereby amended by adding
the language "and in the case of either clause (a), (b) or (c), the Company has
paid or caused to be paid all other sums then due and payable by it hereunder
with respect to the Securities of such series," immediately after clause (v) and
immediately before the language "and the Trustee, on demand of the Company..."
SECTION 2. The Indenture is hereby amended, solely with respect to a
series of Securities that consists of 2002 Exchangeable Notes, as follows:
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(a) By amending Section 902 of the Indenture by deleting
subparagraph (4) thereof, which was added by the First Supplemental Indenture,
and by adding as new subparagraph (4) the following: "(4) change the terms under
which the 2002 Exchangeable Notes are exchangeable as set forth in Article
Fourteen of this Indenture."
(b) By deleting Article Fourteen and replacing it in its
entirety with the following:
"ARTICLE FOURTEEN.
EXCHANGE INTO EOG COMMON STOCK
Section 1401. Exchange at Maturity.
At Maturity, the principal amount payable with
respect to each 2002 Exchangeable Note shall be automatically
and mandatorily exchanged into a number of shares of common
stock, par value $.01 ("EOG Common Stock"), of Enron Oil & Gas
Company ("EOG") at the Exchange Rate (as defined below). As a
result, Holders of 2002 Exchangeable Notes may not receive a
payment representing the principal amount of such 2002
Exchangeable Notes. The "Exchange Rate" is equal to, subject
to adjustment as a result of certain dilution events relating
to the EOG Common Stock as provided for in Section 1403, (a)
if the Maturity Price (as defined below) is greater than or
equal to $_____ per share of EOG Common Stock (the "Threshold
Appreciation Price"), of a ____ share of EOG Common Stock per
2002 Exchangeable Note, (b) if the Maturity Price is less than
the Threshold Appreciation Price but is greater than $_____
per share of EOG Common Stock (the "Initial Price"), a
fractional share of EOG Common Stock per 2002 Exchangeable
Note so that the value thereof (determined at the Maturity
Price) is equal to the Initial Price (such fractional share
being calculated to the nearer 1/10,000th of a share or, if
there is not a nearer 1/10,000th of a share, to the next lower
1/10,000th of a share) and (c) if the Maturity Price is less
than or equal to the Initial Price, one share of EOG Common
Stock per 2002 Exchangeable Note. No fractional shares of EOG
Common Stock will be issued at Maturity as provided in Section
1402.
The "Maturity Price" is defined as the average
Closing Price per share of EOG Common Stock for the 20 Trading
Days immediately prior to Maturity. The "Closing Price" of any
security on any date of determination means the closing sale
price (or, if no closing price is reported, the last reported
sale price) of such security on the New York Stock Exchange
(the "NYSE") on such date or, if such security is not listed
for trading on the NYSE on any such date, as reported in the
composite transactions for the principal United States
securities exchange on which such security is so listed, or if
such security is not so listed on a United States national or
regional securities exchange, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation
System, or, if such security is not so reported, the last
quoted bid price for such security in the over-the-counter
market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the
market value of such security on such date as determined by a
nationally recognized independent investment banking firm
retained for this purpose by the Company. A "Trading Day" is
defined as a Business Day on which the security the Closing
Price of which is being determined (A) is not suspended from
trading on any national or regional securities exchange or
association or over-the-counter market at the close of
business and (B)
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has traded at least once on the national or regional
securities exchange or association or over- the-counter market
that is the primary market for the trading of such security.
"Business Day" means any day that is not a Saturday, a Sunday
or a day on which the NYSE, banking institutions or trust
companies in The City of New York are authorized or obligated
by law or executive order to close.
Section 1402. No Fractional Shares.
No fractional shares or scrip representing fractional
shares of EOG Common Stock shall be issued or delivered upon
the exchange at Maturity of any 2002 Exchangeable Note. If
more than one 2002 Exchangeable Note shall be surrendered for
exchange at one time by the same Holder, the number of full
shares of EOG Common Stock which shall be delivered upon
exchange, in whole or in part, as the case may be, shall be
computed on the basis of the aggregate number of 2002
Exchangeable Notes so surrendered at Maturity. Instead of any
fractional share of EOG Common Stock which would otherwise be
deliverable upon exchange of any 2002 Exchangeable Note at
Maturity, the Company, through any applicable Paying Agent,
shall make a cash payment in respect of such fractional
interest in an amount equal to the value of such fractional
shares at the Maturity Price. The Company shall, upon exchange
of any 2002 Exchangeable Note, provide cash to any applicable
Paying Agent in an amount equal to the cash payable with
respect to any fractional shares of EOG Common Stock
deliverable upon exchange of such 2002 Exchangeable Note, and
the Company shall retain such fractional shares of EOG Common
Stock.
Section 1403. Adjustment of Exchange Rate.
(a) Adjustment for Distributions, Reclassifications,
etc. The Exchange Rate shall be subject to adjustment from
time to time as follows:
(i) If EOG shall:
(A) pay a dividend or make a
distribution with respect
to the EOG Common Stock in
shares of such stock;
(B) subdivide or split the
outstanding shares of EOG
Common Stock into a greater
number of shares;
(C) combine the outstanding
shares of EOG Common Stock
into a smaller number of
shares; or
(D) issue by reclassification
of shares of EOG Common
Stock any shares of common
stock of EOG;
then, in any such event, the Exchange Rate in effect
immediately prior to such event shall be adjusted so
that the Holder of any 2002 Exchangeable Note shall
thereafter be entitled to receive, upon mandatory
exchange of the principal amount of such 2002
Exchangeable Note at Maturity, as set forth in
Section 1401, the number of shares of EOG Common
Stock which such Holder would have owned or been
entitled to receive immediately following any event
described above had such 2002
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Exchangeable Note been exchanged immediately prior to
such event or any record date with respect thereto.
Each such adjustment shall become effective at the
opening of business on the Business Day next
following the record date for determination of
holders of EOG Common Stock entitled to receive such
dividend or distribution in the case of a dividend or
distribution and shall become effective immediately
after the effective date in the case of a
subdivision, split, combination or reclassification.
Each such adjustment shall be made successively.
(ii) If EOG shall, after the date hereof,
issue rights or warrants to all holders of EOG Common
Stock entitling them to subscribe for or purchase
shares of EOG Common Stock (other than rights to
purchase EOG Common Stock pursuant to a plan for the
reinvestment of dividends or interest) at a price per
share less than the current market price of EOG
Common Stock (determined for purposes of this clause
(ii) as the average Closing Price per share of EOG
Common Stock for the 20 Trading Days immediately
prior to the date such rights or warrants are
issued), then in each case the Exchange Rate shall be
adjusted by multiplying the Exchange Rate in effect
immediately prior to the date of issuance of such
rights or warrants, by a fraction, of which the
numerator shall be the number of shares of EOG Common
Stock outstanding on the date of issuance of such
rights or warrants, immediately prior to such
issuance, plus the number of additional shares of EOG
Common Stock offered for subscription or purchase
pursuant to such rights or warrants, and of which the
denominator shall be the number of shares of EOG
Common Stock outstanding on the date of issuance of
such rights or warrants, immediately prior to such
issuance, plus the number of additional shares of EOG
Common Stock which the aggregate offering price of
the total number of shares of EOG Common Stock so
offered for subscription or purchase pursuant to such
rights or warrants would purchase at such current
market price (calculated as the average Closing Price
per share of EOG Common Stock for the 20 Trading Days
immediately prior to the date such rights or warrants
are issued), which shall be determined by multiplying
such total number of shares by the exercise price of
such rights or warrants and dividing the product so
obtained by such current market price. Such
adjustment shall become effective at the opening of
business on the Business Day next following the
record date for the determination of stockholders
entitled to receive such rights or warrants. To the
extent that shares of EOG Common Stock are not
delivered after the expiration of such rights or
warrants, the Exchange Rate shall be readjusted to
the Exchange Rate which would then be in effect had
such adjustments for the issuance of such rights or
warrants been made upon the basis of delivery of only
the number of shares of EOG Common Stock actually
delivered. Each such adjustment shall be made
successively.
(iii) If EOG shall pay a dividend or make a
distribution to all holders of EOG Common Stock of
evidence of its indebtedness or other assets
(excluding any dividends or distributions referred to
in subparagraph (i) above or any ordinary periodic
cash dividends that do not constitute Extraordinary
Cash Dividends (as defined in clause (vi) below)) or
shall issue to all holders of EOG Common Stock rights
or warrants to subscribe for or purchase any of its
securities (other than those referred to in
subparagraph (ii) above), then in each such case, the
Exchange Rate shall be adjusted by multiplying the
Exchange Rate in effect on the record date
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mentioned below, by a fraction of which the numerator
shall be the current market price per share of the
EOG Common Stock on the record date for the
determination of stockholders entitled to receive
such dividend or distribution (such current market
price being determined for purposes of this clause
(iii) as the average Closing Price per share of EOG
Common Stock for the 20 Trading Days immediately
prior to such record date), and of which the
denominator shall be such current market price per
share of EOG Common Stock less the fair market value
(as determined by the Board of Directors of the
Company, whose determination shall be conclusive, and
described in a resolution adopted with respect
thereto) as of such record date of the portion of the
assets or evidences of indebtedness so distributed or
of such subscription rights or warrants applicable to
one share of EOG Common Stock. Each such adjustment
shall become effective on the opening of business on
the Business Day next following the record date for
the determination of stockholders entitled to receive
such dividend or distribution. Each such adjustment
shall be made successively.
(iv) Any shares of EOG Common Stock issuable
in payment of a dividend shall be deemed to have been
issued immediately prior to the close of business on
the record date for such dividend for purposes of
calculating the number of outstanding shares of EOG
Common Stock under subparagraph (ii) above.
(v) All adjustments to the Exchange Rate
shall be calculated to the nearer 1/10,000th of a
share of EOG Common Stock (or if there is not a
nearer 1/10,000th of a share to the next lower
1/10,000th of a share). No adjustment in the Exchange
Rate shall be required unless such adjustment would
require an increase or decrease of at least one
percent therein; provided, however, that any
adjustments which by reason of this subparagraph are
not required to be made shall be carried forward and
taken into account in any subsequent adjustment. If
an adjustment is made to the Exchange Rate pursuant
to subparagraph (i), (ii) or (iii) of this Section
1403(a), an adjustment shall also be made to the
Maturity Price solely to determine which of
paragraphs (a), (b) or (c) of the definition of
Exchange Rate in Section 1401 will apply at Maturity.
The required adjustment shall be determined by
multiplying the Maturity Price by the number
determined under subparagraph (i), (ii) or (iii) by
which the then existing Exchange Rate was multiplied
to adjust such rate. This subparagraph (v) shall be
so used to adjust the definition of Maturity Price
only as such term is used for the first time in each
of subparagraphs (a), (b) and (c) of the definition
of Exchange Rate.
(vi) For purposes of the foregoing, the term
"Extraordinary Cash Dividend" shall mean, with
respect to any consecutive 365-day period, any cash
dividend with respect to EOG Common Stock the amount
of which, together with the aggregate amount of all
other such cash dividends on the EOG Common Stock
occurring in such 365-day period, exceeds on a per
share basis 10% of the average of the Closing Price
per share of the EOG Common Stock over such 365-day
period, and for purposes of applying the formula set
forth in clause (iii) above, the fair market value of
such dividends being calculated pursuant to such
clause (iii) shall be equal to (x) the aggregate
amount of such cash dividend together with the
amounts of such other cash dividends occurring in
such period minus (y) the aggregate amount of such
other cash dividends occurring in such period for
which a prior adjustment
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in the Exchange Rate was previously made under this
Section 1403(a). In making the determinations
required by the foregoing sentence, the amount of
cash dividends paid on a per share basis shall be
appropriately adjusted to reflect the occurrence
during such period of any event described in Section
1403(a).
(b) Adjustment for Consolidation, Merger or Other
Reorganization Event. In the event of (i) any consolidation or
merger of EOG, or any surviving entity or subsequent surviving
entity of EOG (an "EOG Successor"), with or into another
entity (other than a merger or consolidation in which EOG is
the continuing corporation and in which the EOG Common Stock
outstanding immediately prior to the merger or consolidation
is not exchanged for cash, securities or other property of EOG
or another Person), (ii) any sale, transfer, lease or
conveyance to another Person of the property of EOG or any EOG
Successor as an entirety or substantially as an entirety,
(iii) any statutory exchange of securities of EOG or any EOG
Successor with another Person (other than in connection with a
merger or acquisition) or (iv) any liquidation, dissolution or
winding up of EOG or any EOG Successor (any such event, a
"Reorganization Event"), the Exchange Rate used to determine
the amount payable upon exchange at Maturity for each 2002
Exchangeable Note will be adjusted to provide that each holder
of 2002 Exchangeable Notes will receive at Maturity cash in an
amount equal to (a) if the Transaction Value (as defined
below) is greater than or equal to the Threshold Appreciation
Price, ____ multiplied by the Transaction Value, (b) if the
Transaction Value is less than the Threshold Appreciation
Price but greater than the Initial Price, the Initial Price
and (c) if the Transaction Value is less than or equal to the
Initial Price, the Transaction Value. "Transaction Value"
means (x) for any cash received in any such Reorganization
Event, the amount of cash received per share of EOG Common
Stock, (y) for any property other than cash or securities
received in any such Reorganization Event, an amount equal to
the market value at Maturity of such property received per
share of EOG Common Stock as determined by a nationally
recognized independent investment banking firm retained for
this purpose by the Company and (z) for any securities
received in any such Reorganization Event, an amount equal to
the average Closing Price per share of such securities for the
20 Trading Days immediately prior to Maturity, multiplied by
the number of such securities received for each share of EOG
Common Stock. Notwithstanding the foregoing, in lieu of
delivering cash as provided above, the Company may, at its
option, deliver an equivalent value of securities or other
property received in such Reorganization Event, determined in
accordance with clause (y) or (z) above, as applicable. The
kind and amount of securities into which the 2002 Exchangeable
Notes shall be exchangeable after consummation of such
transaction shall be subject to adjustment as described in
paragraph (a) above following the date of consummation of such
transaction.
Section 1404. Notice of Adjustments and Certain
Other Events.
(a) Whenever the Exchange Rate is adjusted as
herein provided, the Company shall:
(i) forthwith compute the adjusted Exchange
Rate in accordance with Section 1403 and prepare a
certificate signed by an officer of the Company
setting forth the adjusted Exchange Rate, the method
of calculation thereof in reasonable detail, and the
facts requiring such adjustment and upon which such
adjustment is based, which certificate shall be
conclusive, final and binding evidence of the
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correctness of the adjustment, and file such
certificate forthwith with the Trustee for the 2002
Exchangeable Notes; and
(ii) within 10 Business Days following the
occurrence of an event that permits or requires an
adjustment to the Exchange Rate pursuant to Section
1403 (or if the Company is not aware of such
occurrence, as soon as practicable after becoming so
aware), provide written notice to the Trustee for
distribution to the Holders of the Outstanding 2002
Exchangeable Notes of the occurrence of such event
and a statement in reasonable detail setting forth
the method by which the adjustment to the Exchange
Rate was determined and setting forth the revised
Exchange Rate per 2002 Exchangeable Note.
(b) In case at any time while any of the 2002
Exchangeable Notes are outstanding the Company receives notice
that:
(i) EOG shall declare a dividend (or any
other distribution) on or in respect of the EOG
Common Stock to which Section 1403(a)(i) or (ii)
shall apply (other than any cash dividends and
distributions, if any, paid from time to time by EOG
that do not constitute Extraordinary Cash Dividends);
(ii) EOG shall authorize the issuance to all
holders of EOG Common Stock of rights or warrants to
subscribe for or purchase shares of EOG Common Stock
or of any other subscription rights or warrants;
(iii) there shall occur any conversion or
reclassification of EOG Common Stock (other than a
subdivision or combination of outstanding shares of
such EOG Common Stock) or any consolidation, merger
or reorganization to which EOG is a party and for
which approval of any stockholders of EOG is
required, or the sale or transfer of all or
substantially all of the assets of EOG; or
(iv) there shall occur the voluntary or
involuntary dissolution, liquidation or winding up of
EOG;
then, the Company shall promptly cause to be delivered to the
Trustee and any applicable Paying Agent and filed at the
office or agency maintained for the purpose of exchange of
2002 Exchangeable Notes at Maturity in the Borough of
Manhattan, in The City of New York by the Trustee (or any
applicable Paying Agent), and shall promptly cause to be
mailed to the Holders of 2002 Exchangeable Notes at their last
addresses as they shall appear upon the registration books of
the Securities Registrar, at least 10 days before the date
hereinafter specified (or the earlier of the dates hereinafter
specified, in the event that more than one is specified), a
notice stating (x) the date on which a record is to be taken
for the purpose of such dividend, distribution or grant of
rights or warrants, or, if a record is not to be taken, the
date as of which the holders of EOG Common Stock of record to
be entitled to such dividend, distribution or grant of rights
or warrants are to be determined, or (y) the date, if known by
the Company, on which such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up
is expected to become effective.
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Section 1405. Taxes.
(a) The Company will pay any and all documentary,
stamp, transfer or similar taxes that may be payable in
respect of the transfer and delivery of EOG Common Stock
pursuant hereto; provided, however, that the Company shall not
be required to pay any such tax which may be payable in
respect of any transfer involved in the delivery of EOG Common
Stock in a name other than that in which the 2002 Exchangeable
Notes so exchanged were registered, and no such transfer or
delivery shall be made unless and until the Person requesting
such transfer has paid to the Company the amount of any such
tax, or has established, to the satisfaction of the Company,
that such tax has been paid.
(b) The parties hereto hereby agree, and each Holder
of a 2002 Exchangeable Note by its purchase of a 2002
Exchangeable Note hereby agrees:
(i) to treat, for U.S. federal income tax
purposes, each 2002 Exchangeable Note as a forward
purchase contract to purchase, at Maturity, the
EOG Common Stock which the Holder is entitled to
receive at that time;
(ii) to include in income as interest, in
accordance with its method of accounting, all
payments made with respect to the 2002 Exchangeable
Note that are denominated as interest;
(iii) in the case of any initial purchaser,
to allocate the entire purchase price of a 2002
Exchangeable Note to the 2002 Exchangeable Note; and
(iv) to file all U.S. federal, state and
local income and franchise tax returns consistent
with the foregoing characterization (unless required
otherwise by an applicable taxing authority).
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Section 1406. Shares Free and Clear.
The Company hereby warrants that upon exchange of a
2002 Exchangeable Note at Maturity pursuant to this Indenture,
the Holder of a 2002 Exchangeable Note shall receive all
rights held by the Company in the EOG Common Stock for which
such 2002 Exchangeable Note is at such time exchangeable
pursuant to this Indenture, free and clear of any and all
liens, claims, charges and encumbrances other than any liens,
claims, charges and encumbrances which may have been placed on
any EOG Common Stock by the prior owner thereof, prior to the
time such EOG Common Stock was acquired by the Company. Except
as provided in Section 1405(a), the Company will pay all taxes
and charges with respect to the delivery of EOG Common Stock
delivered in exchange for 2002 Exchangeable Notes hereunder.
Section 1407. Cancellation of Security.
Upon receipt by the Trustee of 2002 Exchangeable
Notes delivered to it for exchange under this Article
Fourteen, the Trustee shall cancel and dispose of the same as
provided in Section 309.
Section 1408. Limitations on Trading During
Certain Days.
The Company hereby agrees that it will not, and it
will cause each of its Majority- Owned Subsidiaries (as
defined below) not to, buy or sell shares of EOG Common Stock
for its or their own account during the 20 Trading Days prior
to Stated Maturity of the 2002 Exchangeable Notes. For
purposes hereof, "Majority-Owned Subsidiary" with respect to
the Company means a subsidiary more than 50% of whose
outstanding securities representing the right, other than as
affected by events of default, to vote for the election of
directors, is owned by the Company and/or one or more of the
Company's other Majority-Owned Subsidiaries.
Section 1409. Redemption and Defeasance.
The 2002 Exchangeable Notes are not subject to
redemption, defeasance or any sinking fund prior to their
Stated Maturity."
(c) By amending the table of contents of the Indenture to reflect the
addition described in subsection (a) of this Section 2.
SECTION 3. The form of 2002 Exchangeable Note attached hereto as
Exhibit A is hereby adopted, pursuant to Section 901(7) of the Indenture, as a
form of Securities of a series that consists of 2002 Exchangeable Notes.
SECTION 4. Except as specifically supplemented and amended by this
Supplemental Indenture, the terms and provisions of the Indenture shall remain
in full force and effect. The Indenture, as supplemented and amended by this
Supplemental Indenture and all other indentures supplemental thereto, is in all
respects ratified and confirmed, and the Indenture, this Supplemental Indenture
and all indentures supplemental thereto shall be read, taken and construed as
one and the same instrument.
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SECTION 5. If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Supplemental
Indenture by any of the provisions of the Trust Indenture Act, such required
provision shall control.
SECTION 6. All covenants and agreements in this Supplemental Indenture
by the Company shall bind its successors and assigns, whether so expressed or
not.
SECTION 7. In case any provision in this Supplemental Indenture or in
the Securities of any series shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions (or of the
other series of Securities) shall not in any way be affected or impaired
thereby.
SECTION 8. Nothing in this Supplemental Indenture, expressed or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, and the Holders of each series of Securities any benefit
or any legal or equitable right, remedy or claim under this Supplemental
Indenture.
SECTION 9. This Supplemental Indenture and each Security of any series
shall be deemed to be a contract made under the laws of the State of Texas and
this Supplemental Indenture and each such Security for all purposes shall be
governed by and construed in accordance with the laws of the State of Texas.
SECTION 10. All terms used in this Supplemental Indenture not otherwise
defined herein that are defined in the Indenture shall have the meanings set
forth therein.
SECTION 11. This Supplemental Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 12. The recitals contained herein and in the Securities, except
the certificate of authentication of the Trustee thereon, shall be taken as
statements of the Company, and the Trustee assumes no responsibility for their
accuracy or completeness. The Trustee makes no representations as to the
validity or sufficiency of the Indenture, this Supplemental Indenture or of the
Securities and shall not be accountable for the use or application by the
Company of the Securities or the proceeds thereof.
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IN WITNESS WHEREOF, the parties hereto have cause this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ENRON CORP.
By:
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Name:
Title:
[Seal]
ATTEST:
--------------------------------
XXXXXX TRUST AND SAVINGS BANK
By:
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Name:
Title:
[Seal]
ATTEST:
--------------------------------
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XXX XXXXX XX XXXXX )
)
COUNTY OF XXXXXX )
Before me, the undersigned authority, on this day personally appeared
______________, __________ of Enron Corp., known to me to the person whose name
is subscribed to the foregoing instrument, and acknowledged to me that he
executed the same for the purposes and consideration therein expressed, in the
capacity therein stated, and as the act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of August, 1999.
---------------------------------
Notary Public in and for the
Xxxxx xx Xxxxx
00
00
XXXXX XX XXXXXXXX )
)
COUNTY OF XXXX )
Before me, the undersigned authority, on this day personally appeared
______________, a Vice President of Xxxxxx Trust and Savings Bank, known to me
to the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated, and as the act and deed of
said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of August, 1999.
---------------------------------
Notary Public in and for the
State of Illinois
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EXHIBIT A
Form of Face of 2002 Exchangeable Notes
ENRON CORP.
___% EXCHANGEABLE NOTES DUE ________, 2002
(Subject to Exchange at Maturity into Shares of Common Stock,
Par Value $.01 per Share, of Enron Oil & Gas Company)
2002 Exchangeable Notes in
NO. Denominations of $_____
CUSIP NO. _________
ENRON CORP., a corporation duly organized and existing under the laws
of the State of Oregon (hereinafter called the "Company," which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to [ ], or registered assigns, the
principal sum of [ ] DOLLARS (or $_____ for each 2002 Exchangeable Note
represented by this note) (subject to the mandatory exchange provisions at
Maturity discussed below) on ________, 2002, and to pay interest (computed on
the basis of a 360-day year of twelve 30-day months) thereon from ________,
1999, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for quarterly in arrears on January 31, April 30, July 31
and October 31 in each year, commencing _______, 1999, at the rate per annum
specified in the title of this 2002 Exchangeable Note), until the principal
hereof is paid or made available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in said Indenture, be paid to the Person in whose name this 2002
Exchangeable Note (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
January 15, April 15, July 15, or October 15 (whether or not a Business Day) as
the case may be, next preceding such Interest Payment Date, provided that
interest payable at Maturity shall be payable to the Person to whom the
principal hereof is payable. In any case where such Interest Payment Date shall
not be a Business Day, then (notwithstanding any other provisions of said
Indenture or the 2002 Exchangeable Notes) payment of such interest need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on such date, and, if such payment is so made,
no interest shall accrue for the period from and after such date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holder on such Regular Record Date, and may either be
paid to the Person in whose name this 2002 Exchangeable Note (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee for the 2002 Exchangeable Notes, notice whereof shall be given to
Holders of Notes not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the 2002 Exchangeable Notes may
be listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
ADDITIONAL PROVISIONS OF THIS 2002 EXCHANGEABLE NOTE ARE CONTAINED ON
THE REVERSE HEREOF AND SUCH PROVISIONS SHALL HAVE THE SAME EFFECT AS THOUGH
FULLY SET FORTH IN THIS PLACE.
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Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee for this 2002 Exchangeable Note by manual signature,
this 2002 Exchangeable Note shall not be entitled to any benefit under the
Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, Enron Corp., has caused this instrument to be duly
executed under its corporate seal.
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein and
referred to in the within-mentioned Indenture.
XXXXXX TRUST AND SAVINGS BANK,
as Trustee,
By:
--------------------------------
Authorized Officer
ENRON CORP.
By:
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Chairman of the Board
Attest:
------------------------------
Vice President and Secretary
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Form of Reverse of 2002 Exchangeable Notes
ENRON CORP.
___% Exchangeable Note due ________,2002
(Subject to Exchange at Maturity into Shares of
Common Stock, Par Value $.01 Per Share,
of Enron Oil & Gas Company)
This 2002 Exchangeable Note is one of a duly authorized issue of
debentures, notes or other evidences of indebtedness (hereinafter called the
"Securities") of the Company of the series hereinafter specified, which series
is limited to 2002 Exchangeable Notes, all such Securities issued and to be
issued under an Indenture dated as of November 1, 1985, between the Company and
Xxxxxx Trust and Savings Bank, as Trustee, as supplemented by a First
Supplemental Indenture dated as of December 1, 1995, a Supplemental Indenture
dated as of May 8, 1997, a Third Supplemental Indenture dated as of September 1,
1997, and a Fourth Supplemental Indenture dated as of August ___, 1999, each
between the Company and Xxxxxx Trust and Savings Bank, as Trustee (herein
collectively, the "Indenture"), pursuant to which the Company has designated
Xxxxxx Trust and Savings Bank, as Trustee for the 2002 Exchangeable Notes, to
which Indenture and all other indentures supplemental thereto reference is
hereby made for a statement of the rights and limitation of rights thereunder of
the Holders of the Securities and of the rights, obligations, duties and
immunities of the Trustee for each series of Securities and of the Company, and
the terms upon which the Securities are and are to be authenticated and
delivered. As provided in the Indenture, the Securities may be issued in one or
more series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest, if any, at different
rates, may be subject to different redemption provisions, if any, may be subject
to different sinking, purchase or analogous funds, if any, may be subject to
different covenants and Events of Default and may otherwise vary as in the
Indenture provided or permitted. This 2002 Exchangeable Note is one of a series
of the Securities designated as ___% Exchangeable Notes due ________, 2002.
At Maturity, the principal amount of this 2002 Exchangeable Note will
be mandatorily exchanged into a number of shares of Common Stock, par value $.01
per share ("EOG Common Stock"), of Enron Oil & Gas Company ("EOG") at the
Exchange Rate (as defined below) and, as a result, the Holder of this 2002
Exchangeable Note will not necessarily receive an amount equal to the principal
amount hereof. The "Exchange Rate" is equal to, subject to adjustment as a
result of certain dilution events relating to the EOG Common Stock as provided
for in the Indenture, (a) if the Maturity Price (as defined below) per share of
EOG Common Stock is greater than or equal to $_____ per share of EOG Common
Stock (the "Threshold Appreciation Price"), _____ shares of EOG Common Stock per
Note, (b) if the Maturity Price is less than the Threshold Appreciation Price
but is greater than $____ per share of EOG Common Stock (the "Initial Price"), a
fractional share of EOG Common Stock per 2002 Exchangeable Note so that the
value thereof (determined at the Maturity Price) is equal to the Initial Price
and (c) if the Maturity Price is less than or equal to the Initial Price, one
share of EOG Common Stock per Note. No fractional shares of EOG Common Stock
will be issued at Maturity as provided in the Indenture.
The "Maturity Price" is defined as the average Closing Price per share
of EOG Common Stock for the 20 Trading Days immediately prior to, but not
including, Maturity. The "Closing Price" of any security on any date of
determination means the closing sale price (or, if no closing price is reported,
the last reported sale price) of such security on the New York Stock Exchange
(the "NYSE") on such date or, if such security is not
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listed for trading on the NYSE on any such date, as reported in the composite
transactions for the principal United States securities exchange on which such
security is so listed, or if such security is not so listed on a United States
national or regional securities exchange, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System, or, if such
security is not so reported, the last quoted bid price for such security in the
over-the-counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of such
security on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company. A "Trading
Day" is defined as a day on which the security the Closing Price of which is
being determined (A) is not suspended from trading on any national or regional
securities exchange or association or over-the-counter market at the close of
business and (B) has traded at least once on the national or regional securities
exchange or association or over-the-counter market that is the primary market
for the trading of such security. "Business Day" means any day, other than a
Saturday or Sunday, on which the NYSE, banking institutions and trust companies
in The City of New York are open for business.
Interest on this 2002 Exchangeable Note will be payable, and delivery
of EOG Common Stock in exchange for the principal amount of this 2002
Exchangeable Note at Maturity will be made upon surrender of this 2002
Exchangeable Note, at the office or agency of the Company maintained for that
purpose in The City of New York, New York, and payment of interest on this 2002
Exchangeable Note will be made in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company, payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register at the close of
business on the Regular Record Date.
The 2002 Exchangeable Notes are not subject to redemption, defeasance
or any sinking fund prior to Maturity.
The provisions contained in the Indenture for legal defeasance and
discharge of the entire principal of all the Securities of any series (or of
certain covenants in the Indenture) upon compliance by the Company with certain
conditions set forth therein will not be applicable to the 2002 Exchangeable
Notes.
If an Event of Default with respect to the 2002 Exchangeable Notes, as
defined in the Indenture, shall occur and be continuing, the principal of all
2002 Exchangeable Notes may be declared due and payable and therefore will
result in the mandatory exchange of the principal amount thereof for EOG Common
Stock, all in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time Outstanding
of each series to be affected thereby. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities of any series at the time Outstanding, on behalf of the Holders
of all the Securities of such series, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences with respect to such series. Any such consent
or waiver by the Holder of this 2002 Exchangeable Note shall be conclusive and
binding upon such Holder and upon all future Holders of this 2002 Exchangeable
Note and of any 2002 Exchangeable Notes issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent of
waiver is made upon this 2002 Exchangeable Note.
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No reference herein to the Indenture and no provision of this 2002
Exchangeable Note or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of and
interest on this 2002 Exchangeable Note at the times, place and rate, and in the
manner, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, this 2002 Exchangeable Note is transferable on the Security Register
of the Company, upon surrender of this 2002 Exchangeable Note for registration
of transfer at the office or agency of the Company to be maintained for that
purpose in The City of New York, New York, or at any other office or agency of
the Company maintained for that purpose, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing and thereupon one or more new 2002 Exchangeable Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
No service charge shall be made for any such transfer or exchange, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with the registration of such transfer
or exchange, other than certain exchanges not involving any transfer.
All terms used in this Security which are defined in the Indenture have
the meanings set forth therein.
This Security shall for all purposes be governed by, and construed in
accordance with, the laws of the State of Texas.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee for the 2002 Exchangeable Notes and any agent of the
Company or such Trustee may treat the Person in whose name this 2002
Exchangeable Note is registered as the owner hereof for the purpose of receiving
payment as herein provided and for all other purposes, whether or not this 2002
Exchangeable Note be overdue, and neither the Company, such Trustee nor any such
agent shall be affected by notice to the contrary.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM as tenants in common
TEN ENT as tenants by the entireties
JT TEN as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT
MIN ACT _____________ Custodian _____________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
--------------------
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR TAXPAYER I.D.
OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
------------------------------------------------
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(Please print or typewrite name and address including
postal zip code of assignee)
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the within 2002 Exchangeable Note and all rights thereunder, hereby irrevocably
constituting and appointing
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attorney to transfer said 2002 Exchangeable Note on the books of the Company,
with full power of substitution in the premises.
Dated:
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NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within 2002
Exchangeable Note in every particular,
without alteration or enlargement, or any
change whatever.
