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Enron Corp.
and
Xxxxxx Trust and Savings Bank,
Trustee
______________
Third Supplemental Indenture
Dated as of September 1, 1997
______________
SUPPLEMENTAL INDENTURE TO INDENTURE DATED AS OF NOVEMBER 1, 1985
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THIRD SUPPLEMENTAL INDENTURE, dated as of September 1, 1997, between
ENRON CORP., a corporation duly organized and existing under the laws of the
State of Oregon (herein called the "Company"), having its principal office at
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000, and XXXXXX TRUST and SAVINGS BANK, a
corporation duly organized and existing under the laws of the State of Illinois
(herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the
Trustee its Indenture, dated as of November 1, 1985 (herein called the
"Original Indenture"), to provide for the issuance of its unsecured debentures,
notes or other evidences of indebtedness ("Securities"); and
WHEREAS, the Original Indenture has been supplemented and amended as
of December 1, 1995 to authorize a series of Securities denominated the
Company's "6 1/4% Exchangeable Notes due December 13, 1998" and as of May 8,
1997 to evidence the succession of the Company to Enron Corp., a Delaware
corporation ("Enron Delaware"), and the assumption by the Company of the
obligations of Enron Delaware for the due and punctual payment of the principle
of, premium, if any, and interest on the Securities and the performance and
observance of all covenants and conditions of the Original Indenture on the
part of Enron Delaware to be performed or observed by Enron Delaware (the
Original Indenture, as so supplemented and amended, is herein called the
"Indenture"); and
WHEREAS, Section 901 of the Indenture provides that, subject to
certain limitations, without the consent of any holders of the Securities, the
Company, when authorized by a resolution of its Board of Directors, and the
Trustee may at any time and from time to time enter into an indenture or
indentures supplemental to the Indenture; and
WHEREAS, the Company's Board of Directors has duly authorized the
substance of the modifications of the Indenture hereinafter set forth (the
"Third Supplemental Indenture") and the execution and delivery of this Third
Supplemental Indenture; and
WHEREAS, the Company and the Trustee desire to execute this Third
Supplemental Indenture; and
WHEREAS, all things necessary to make this Third Supplemental
Indenture a valid agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:
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For and in consideration of the premises, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
1. The Indenture shall be modified as follows. Brackets indicate
matters to be deleted and italics indicate matters to be added.
a. Article I. Definitions and Other Provisions of
General Application. shall be amended to include the following:
SECTION 114. Interest Limitation.
It is the intention of the Company to conform
strictly to all applicable usury laws and any subsequent
revisions, repeals or judicial interpretations thereof.
Accordingly, if the transactions contemplated hereby would be
usurious under any applicable law then, in that event,
notwithstanding anything to the contrary in the Securities or
this Indenture, it is agreed as follows: (i) the aggregate of
all consideration which constitutes interest under applicable
law with respect to a Security shall under no circumstances
exceed the maximum amount allowed by applicable law, and any
excess shall be credited to the principal amount of such
Security (or, if the principal amount of such Security shall
have been paid in full, refunded to the Company), to the
extent permitted by applicable law; and (ii) in the event that
the maturity of any Security is accelerated or in the event of
any redemption of such Security, then such consideration that
constitutes interest under applicable law may never include
more than the maximum amount allowed by applicable law, and
any excess shall be credited to the principal amount of such
Security (or, if the principal amount of such Security shall
be paid in full, refunded to the Company), to the extent
permitted by applicable law. All calculations made to compute
the rate of interest with respect to a Security for the
purpose of determining whether such rate exceeds the maximum
amount allowed by applicable law shall be made, to the extent
permitted by such applicable law, by allocating and spreading
during the period of the full stated term of such Security all
interest any time contracted for, taken, reserved, charged or
received by such Holder or by the Trustee on behalf of any
such Holder in connection therewith so that the amount or rate
of interest charged for any and all periods of time during the
term of the Security does not exceed the maximum amount or
rate of interest allowed to be charged by law during the
relevant period of time. Notwithstanding any of the
foregoing, if at any time applicable laws shall be changed so
as to permit a higher rate or amount of interest to be charged
than that permitted
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prior to such change, then unless prohibited by law,
references in this Indenture or any Security to "applicable
law" when used in the context of determining the maximum
interest or rate of interest that can be charged shall be
deemed to refer to such applicable law as so amended to allow
the greater amount or rate of interest.
The right to accelerate maturity of any Security does
not include the right to accelerate any interest which has not
otherwise accrued to the date of such acceleration, provided,
however, that the foregoing shall not prohibit the continuing
accrual after acceleration of interest in accordance with the
terms of the Indenture and such Security.
b. Section 203. Form of Reverse of Security. shall be
amended by deleting the eleventh unnumbered paragraph thereof and
substituting therefor the following:
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall, without the
consent of the Holder, alter or impair the right of the
Holder, which is absolute and unconditional, to receive
payment of principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed, except for Section 114 of the
Indenture (which limits interest to the maximum amount
permissible by law), the provisions of which are incorporated
herein by reference.
c. The text (but not the caption) of Section 301.
Amount Unlimited; Issuable in Series. shall be amended by deleting
such text in its entirety and substituting therefor the following:
The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is
unlimited.
The Securities may be issued in one or more series.
There shall be established in or pursuant to a Board
Resolution and set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series,
(1) the title of the Securities of the
series (which shall distinguish the Securities of the
series from Securities of any other series);
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(2) any limit upon the aggregate principal
amount of the Securities of the series which may be
authenticated and delivered under this indenture
(except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of the series
pursuant to Section 304, 305, 306, 906 or 1107 and
except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a
Security of the series shall be payable, if other
than the Person in whose name that Security (or one
or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such
interest;
(4) the date or dates on which the
principal of and any premium on the Securities of the
series is payable;
(5) the rate or rates (which may be
fixed or variable), or the method by which such rate
or rates shall be determined, at which the Securities
of the series shall bear interest, if any, the date
or dates from which such interest shall accrue, or
the method by which such date or dates shall be
determined, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record
Date for any interest payable on any Interest Payment
Date;
(6) the place or places where the
principal of and any premium and interest on
Securities of the series shall be payable;
(7) the period or periods within which,
the price or prices at which and the terms and
conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the
Company, if the Company is to have that option;
(8) the obligation, if any, and the
option, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any
sinking fund or analogous provisions or at the option
of a Holder thereof and the period or periods within
which, the price or prices at which and the terms and
conditions upon which Securities of the series shall
be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation or option;
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(9) if other than denominations of
$1,000 and any integral multiple thereof, the
denominations in which Securities of the series shall
be issuable;
(10) the currency, currencies or currency
units in which payment of the principal of and any
premium and interest on any Securities of the series
shall be payable if other than the currency of the
United States of America and the manner of
determining the equivalent thereof in the currency of
the United States of America for purposes of the
definition of "Outstanding" in Section 101;
(11) if the amount of payments of
principal of or any premium or interest on any
Securities of the series may be determined with
reference to an index, including, but not limited to
an index based on a currency or currencies other than
that in which the Securities of that series are
payable, or any other type of index, the manner in
which such amounts shall be determined;
(12) if the principal of or any premium
or interest on any Securities of the series is to be
payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units
other than that or those in which the Securities are
stated to be payable, the currency, currencies or
currency units in which payment of the principal of
and any premium and interest on Securities of such
series as to which such election is made shall be
payable, and the periods within which and the terms
and conditions upon which such election is to be
made;
(13) if other than the principal amount
thereof, the portion of the principal amount of
Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof
pursuant to Section 502 or provable in bankruptcy
pursuant to Section 504 or the method by which such
portion shall be determined;
(14) any trustees, paying agents,
transfer agents or registrars with respect to
Securities of such series;
(15) whether the Securities of the series
shall be issued upon original issuance in whole or in
part in the form of one or more
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Global Securities and, in such case, (a) the
Depository with respect to such Global Security or
Securities, which Depository at the time of
designation and at all times while it serves as
Depository shall be a clearing agency registered
under the Securities Exchange Act of 1934, as
amended; and (b) the circumstances under which any
such Global Security may be exchanged for Securities
registered in the name of, and any transfer of such
Global Security may be registered to, a Person other
than such Depository or its nominee, if other than as
set forth in Section 305;
(16) the obligation, if any, of the
Company to permit the conversion or exchange of
Securities of such series into other securities
(whether or not issued by, or the obligation of, the
Company), and the terms and conditions upon which
such conversion or exchange shall be effected
(including without limitation, the initial conversion
or exchange price or rate, the conversion or exchange
period and any other provisions in addition to or in
lieu of those set forth in this Indenture relative to
such obligation); and
(17) any other terms of the series (which
terms shall not be inconsistent with the provisions
of this Indenture, except as permitted by Section
901(5)).
All Securities of any one series shall be
substantially identical except as to denomination and except
as may otherwise be provided in or pursuant to the Board
Resolution referred to above and set forth, or determined in
the manner provided, in the Officers' Certificate referred to
above or in any such 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.
d. Section 303. Execution, Authentication, Delivery and
Dating, shall be amended by adding the following paragraph after the
fourth unnumbered paragraph:
Notwithstanding the provisions of Section 301 and of
the preceding paragraph, if all Securities of a series are not
to be originally issued at one
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time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the
Company Order otherwise required pursuant to such preceding
paragraph at or prior to the time of authentication of each
Security of such series if such documents are delivered at or
prior to the authentication upon original issuance of the
first Security of such series to be issued.
e. Section 303. Execution, Authentication, Delivery and
Dating. shall be further amended by deleting the last paragraph
thereof and substituting therefor the following:
No Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of
authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the
benefits of the Indenture. Notwithstanding the foregoing, if
any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309, together with a
written statement (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company,
for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this
Indenture.
2. Capitalized terms used herein but not defined herein shall
have the meanings given to them in the Indenture.
3. Except as specifically supplemented and amended by this Third
Supplemental Indenture, the terms and provisions of the Indenture shall remain
in full force and effect.
4. The Recitals of the Company preceding Section 1 of this Third
Supplemental Indenture are statements of the Company and the Trustee has no
responsibility for the accuracy or completeness thereof.
5. This Third Supplemental Indenture shall be governed by, and
construed in accordance with, the law of the State of Texas.
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6. This Third Supplemental Indenture may be executed in
one or more counterparts, all of which, taken together, shall
constitute one and the same Third Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
ENRON CORP.
By
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Name:
Title:
XXXXXX TRUST AND SAVINGS BANK,
as Trustee
By
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Name:
Title:
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