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EXHIBIT 4.8
DECLARATION OF TRUST
OF
EL PASO ENERGY CAPITAL TRUST III
THIS DECLARATION OF TRUST is made as of December 10, 1997, (this
"Declaration"), by and among El Paso Natural Gas Company, a Delaware
corporation, as sponsor (the "Sponsor"), H. Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxx
X. Xxxxxx and Xxxxx Manhattan Bank Delaware, not in their individual capacities
but solely as trustees (the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as "El Paso Energy
Capital Trust III" (the "Trust"), in which name the Trustees or the Sponsor, to
the extent provided herein, may conduct the business of the Trust, make and
execute contracts, and xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. Such amount shall constitute the initial trust
estate. It is the intention of the parties hereto that the Trust created hereby
constitutes a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C., ss. 3801, et seq. (the "Business Trust Act"), and that this
document constitutes the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in such form as the Trustees may approve.
3. The Sponsor and the Trustees will enter into an amended and
restated Trust Agreement or Declaration satisfactory to each such party to
provide for the contemplated operation of the Trust created hereby and the
issuance of the Preferred Securities and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Trust
Agreement or Declaration, the Trustees shall not have any duty or obligation
hereunder or with respect of the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise. Notwithstanding the foregoing, the Trustees may take all actions
deemed proper as are necessary to effect the transactions contemplated herein.
4. The Sponsor is hereby authorized, in its sole discretion, (i) to
file with the Securities and Exchange Commission (the "Commission") and to
execute, in the case of the 1933 Act Registration Statement and 1934 Act
Registration Statement (as herein defined), on behalf of the Trust, (a) the
1933 Act Registration Statement, including pre-effective or post-effective
amendments to such Registration Statement, relating to the registration under
the Securities Act of 1993, as amended (the "1993 Act"), of the Preferred
Securities of the Trust, (b) any preliminary prospectus or prospectus or
supplement thereto relating to the Preferred Securities required to be filed
under the 1933 Act, and (c) if required, a Registration Statement on Form 8-A
or other appropriate form (the "1934 Act Registration Statement") (including
all pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under the Securities
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Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange
or any other exchange (collectively, the "Exchange") and execute on behalf of
the Trust a listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on the Exchange; (iii)
to file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process
and other papers and documents as shall be necessary or desirable to register
the Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable; (iv) to execute, deliver and perform on behalf of the Trust, an
underwriting agreement with the Sponsor and the underwriter or underwriters of
the Preferred Securities of the Trust; (v) to execute, deliver and perform a
depository agreement with the initial clearing agency, relating to the
Preferred Securities; and (vi) to apply for and obtain a tax identification
number for the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, PORTAL or state securities or
Blue Sky laws to be executed on behalf of the Trust by the Trustees, the
Trustees, in their capacities as trustees of the Trust, are hereby authorized
and directed to join in any such filing and to execute on behalf of the Trust
any and all of the foregoing, it being understood that H. Xxxxx Xxxxxx, Xxxxx
Xxxxxx, Xxxxxxx X. Xxxxxx and Xxxxx Manhattan Bank Delaware, in their capacity
as trustees of the Trust, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by the rules
and regulations of the Commissions, PORTAL or state securities or Blue Sky
laws. In connection with all of the foregoing, the Sponsor hereby constitutes
and appoints H. Xxxxx Xxxxxx, as its true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution for the Sponsor or in
the Sponsor's name, place and stead, in any and all capacities, to sign any and
all amendments (including all pre-effective and post-effective amendments) to
the 1933 Act Registration Statement and any 1934 Act Registration Statement and
to file the same, with all exhibits thereto, and any other documents in
connection therewith, with the Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith, as fully to
all intents and purposes as the Sponsor might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
respective substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Declaration may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be four (4)
and thereafter the number of trustees of the Trust shall be such number as
shall be fixed from time to time by a written instrument signed by the Sponsor
which may increase or decrease the number of trustees of the Trust; provided,
however, that the number of trustees shall in no event be less than two (2);
provided, further, that to the extent required by the Business Trust Act, one
trustee of the Trust shall either be a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware. Subject to the foregoing,
the Sponsor is entitled to appoint or remove without cause any trustee of the
Trust at any time. Any trustee of the Trust may resign upon thirty (30) days'
prior notice to the Sponsor.
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7. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration to
be duly executed as of the day and year first above written.
By: /s/ H. XXXXX XXXXXX
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H. Xxxxx Xxxxxx
as Administrative Trustee
By: /s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
as Administrative Trustee
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
as Administrative Trustee
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but
solely as a trustee of the Trust
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice-President
EL PASO NATURAL GAS COMPANY, as Sponsor
By: /s/ H. Xxxxx Xxxxxx
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Name: H. Xxxxx Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
