EXHIBIT 4.7
FIRST SUPPLEMENTAL INDENTURE
BETWEEN
CONSOLIDATED NATURAL GAS COMPANY
AND
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
DATED AS OF OCTOBER ___, 2001
___% JUNIOR SUBORDINATED DEBENTURES,
DUE __________, 2041
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.......................................................... 2
1.1 Definition of Terms..................................................... 2
ARTICLE II GENERAL TERMS AND CONDITIONS OF THE JUNIOR SUBORDINATED DEBENTURES.. 4
2.1 Designation and Principal Amount........................................ 4
2.2 Stated Maturity......................................................... 4
2.3 Form and Payment; Minimum Transfer Restriction.......................... 4
2.4 Exchange and Registration of Transfer of Junior
Subordinated Debentures; Restrictions on
Transfers; Depositary................................................... 5
2.5 Interest................................................................ 7
2.6 Direct Action........................................................... 7
ARTICLE III REDEMPTION OF THE JUNIOR SUBORDINATED DEBENTURES................... 8
3.1 Tax Event or Investment Company Event Redemption........................ 8
3.2 Optional Redemption by Company.......................................... 8
3.3 Notice of Redemption.................................................... 8
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD................................ 8
4.1 Extension of Interest Payment Period.................................... 8
4.2 Notice of Extension..................................................... 9
ARTICLE V EXPENSES............................................................. 10
5.1 Payment of Expenses..................................................... 10
5.2 Payment Upon Resignation or Removal..................................... 11
ARTICLE VI FORM OF JUNIOR SUBORDINATED DEBENTURE............................... 11
6.1 Form of Junior Subordinated Debenture................................... 11
ARTICLE VII ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBENTURES................... 11
7.1 Original Issue of Junior Subordinated Debentures........................ 11
ARTICLE VIII MISCELLANEOUS..................................................... 11
8.1 Ratification of Indenture; First Supplemental
Indenture Controls...................................................... 11
8.2 Trustee Not Responsible for Recitals.................................... 12
8.3 Governing Law........................................................... 12
8.4 Separability............................................................ 12
8.5 Counterparts............................................................ 12
EXHIBIT A...................................................................... 1
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of October __, 2001 (the "First
Supplemental Indenture"), is between CONSOLIDATED NATURAL GAS COMPANY, a
Delaware corporation (the "Company"), and BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION, as trustee (the "Trustee") under the Indenture, dated as of October
1, 2001, between the Company and the Trustee (the "Base Indenture" and, together
with this First Supplemental Indenture, the "Indenture").
WHEREAS, the Company executed and delivered the Base Indenture to the
Trustee to provide for the issuance of the Company's unsecured junior
subordinated debentures (the "Debentures") to be issued from time to time in one
or more series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Company desires
to provide for the establishment of a series of its Debentures, to be known as
its ___% Junior Subordinated Debentures due _______, 2041 (the "Junior
Subordinated Debentures"), the form and substance of such Junior Subordinated
Debentures and the terms, provisions and conditions thereof to be set forth as
provided in the Base Indenture and this First Supplemental Indenture;
WHEREAS, the Company desires that this series of Junior Subordinated
Debentures be originally issued on October ___, 2001 pursuant to the Indenture
and sold pursuant to the Underwriting Agreement (as defined below);
WHEREAS, DOMINION CNG CAPITAL TRUST I, a Delaware statutory business trust
(the "Trust"), has offered to the purchasers (the "Underwriters") named in
Schedule I to the Underwriting Agreement, dated October __, 2001 (the
"Underwriting Agreement"), among the Underwriters, the Trust and the Company
$____,000,000 aggregate liquidation amount of its ___% Trust Preferred
Securities (the "Trust Preferred Securities"), representing undivided beneficial
interests in the assets of the Trust and proposes to invest the proceeds from
the sale of the Trust Preferred Securities, together with the proceeds of the
sale by the Trust to the Company of $__________ aggregate liquidation amount of
its Common Securities, in $____________ aggregate principal amount of the Junior
Subordinated Debentures; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture and all requirements necessary to make this
First Supplemental Indenture a valid instrument in accordance with its terms,
and to make the Junior Subordinated Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects;
NOW, THEREFORE, in consideration of the purchase and acceptance of the
Junior Subordinated Debentures by the Trust, and for the purpose of setting
forth, as provided in the Base Indenture, the form and substance of the Junior
Subordinated Debentures and the terms, provisions and conditions thereof, the
Company covenants and agrees with the Trustee as follows:
ARTICLE I
DEFINITIONS
1.1 Definition of Terms. For all purposes of this First Supplemental
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms not otherwise defined herein which are defined in the
Base Indenture have the same meanings when used in this First Supplemental
Indenture;
(b) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(c) all other terms used herein which are defined in the Trust
Indenture Act of 1939, as amended, whether directly or by reference
therein, have the meanings assigned to them therein;
(d) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted in the United States
of America at the date of such computation; provided, that when two or more
principles are so generally accepted, it shall mean that set of principles
consistent with those in use by the Company;
(e) a reference to a Section or Article is to a Section or Article of
this First Supplemental Indenture unless otherwise stated;
(f) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this First Supplemental Indenture as a whole and
not to any particular Article, Section or other subdivision;
(g) headings are for convenience of reference only and do not affect
interpretation;
(h) the term "Trust Preferred Securities" as used herein means
"Preferred Securities" as such term is used in the Base Indenture; and
(i) the following terms have the meanings given to them in the Trust
Agreement: (i) Administrative Trustee, (ii) Business Day, (iii) Closing
Date, (iv) Delaware Trustee, (v) Distributions, (vi) Property Trustee, and
(vii) Common Security.
"Additional Interest" has the meaning specified in Section 2.5.
"Coupon Rate" has the meaning specified in Section 2.5(a).
"Debentures" has the meaning specified in the first recital to this
First Supplemental Indenture.
"Definitive Debenture Certificates" means Debentures issued in
definitive, fully registered form.
"Extension Period" has the meaning specified in Section 4.1.
"Global Debenture" has the meaning specified in Section 2.4(a).
"Interest Payment Date" has the meaning specified in Section 2.5.
"Investment Company Event" means the receipt by the Trust of an
opinion of a nationally recognized independent counsel (an "Investment Company
Act Opinion"), to the effect that, as a result of the occurrence of a change in
law or regulation or a written 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" that is required
to be registered under the 1940 Act, which Change in 1940 Act Law becomes
effective on or after the initial Closing Date.
"Junior Subordinated Debentures" has the meaning specified in the
second recital to this First Supplemental Indenture.
"Liquidation Amount" means the stated amount of $25 per Trust
Preferred Security.
"Optional Redemption Price" has the meaning specified in Section 3.2.
"Record Date" has the meaning specified in Section 2.5(a).
"Special Event Redemption Price" has the meaning specified in Section
3.1.
"Tax Event" means the receipt by the Trust of an opinion of
independent tax counsel experienced in such matters ("Tax Event Opinion"), to
the effect that, as a result of (a) any amendment to, change in or announced
prospective change in the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, or
(b) any official administrative written decision, pronouncement or action, or
judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or which proposed change, pronouncement,
decision or action is announced on or after the Closing Date, there is more than
an insubstantial risk that (i) the Trust is, or will be within 90 days of the
date of such opinion, subject to the United States federal income tax with
respect to income received or accrued on the Junior Subordinated Debentures,
(ii) interest payable to the Trust by the Company on the Junior Subordinated
Debentures is not, or within 90 days of the date of such opinion will not be,
deductible, in whole or in part, by the Company for United States federal income
tax purposes, or (iii) the Trust is, or will be within 90 days of the date of
such opinion, subject to a material amount of other taxes, duties or other
governmental charges.
"Trust" has the meaning specified in the fourth recital to this First
Supplemental Indenture.
"Trust Agreement" means the Amended and Restated Trust Agreement of
DOMINION CNG CAPITAL TRUST I dated as of October 1, 2001 among the Company, as
Sponsor, Bank One Trust Company, National Association, as Property Trustee, Bank
One Delaware, Inc., as Delaware Trustee, the Administrative Trustees named
therein and the holders, from time to time, of undivided beneficial interests in
the assets of the Trust.
"Trust Preferred Securities" has the meaning specified in the fourth
recital to this First Supplemental Indenture.
"Trust Securities" means the Common Securities and the Trust Preferred
Securities.
"Underwriters" has the meaning specified in the fourth recital to this
First Supplemental Indenture.
"Underwriting Agreement" has the meaning specified in the fourth
recital to this First Supplemental Indenture.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE JUNIOR SUBORDINATED DEBENTURES
2.1 Designation and Principal Amount. There is hereby authorized one
series of Debentures, to be designated the "___% Junior Subordinated Debentures
due _________, 2041," in the initial aggregate principal amount of $___________,
which amount shall be as set forth in any written orders of the Company for the
authentication and delivery of Junior Subordinated Debentures pursuant to
Section 2.1 of the Base Indenture and Section 7.1 hereof. Additional Junior
Subordinated Debentures without limitation as to amount, and without the consent
of the holders of the then Outstanding Junior Subordinated Debentures, may also
be authenticated and delivered in the manner provided in Section 2.1 of the Base
Indenture. Any such additional Junior Subordinated Debentures will have the same
Stated Maturity and other terms as those initially issued.
2.2 Stated Maturity. The Stated Maturity of the Junior Subordinated
Debentures is _____________, which may not be shortened or extended.
2.3 Form and Payment; Minimum Transfer Restriction.
(a) The Junior Subordinated Debentures shall be issued to the
Property Trustee in fully registered definitive form without coupons in
minimum denominations of $25 and integral multiples of $25 in excess thereof.
Principal and interest on the Junior Subordinated Debentures issued in
definitive form will be payable, the transfer of such Junior Subordinated
Debentures will be registrable and such Junior Subordinated Debentures will be
exchangeable for Junior Subordinated Debentures bearing identical terms and
provisions at the principal office of the Trustee; provided, however, that
payment of interest may be made at the option of the Company by check mailed to
the registered holder at such address as shall appear in the Register.
Notwithstanding the foregoing, so long as the registered holder of any Junior
Subordinated Debentures is the Property Trustee, the payment of the principal of
and interest (including Additional Interest and Additional Tax Sums, if any) on
such Junior Subordinated Debentures held by the Property Trustee will be made at
such place, or by wire transfer of immediately available funds to such account,
as may be designated by the Property Trustee. The Register for the Junior
Subordinated Debentures shall be kept at the principal office of the Trustee and
the Trustee is hereby appointed registrar for the Junior Subordinated
Debentures.
(b) The Junior Subordinated Debentures may be transferred or exchanged
only in minimum denominations of $25 and integral multiples of $25 in excess
thereof, and any attempted transfer, sale or other disposition of Junior
Subordinated Debentures in a denomination of less than $25 shall be deemed to be
void and of no legal effect whatsoever. Any such transferee shall be deemed not
to be the holder of such Junior Subordinated Debentures for any purpose,
including but not limited to the receipt of payments in respect of such Junior
Subordinated Debentures and such transferee shall be deemed to have no interest
whatsoever in such Junior Subordinated Debentures.
2.4 Exchange and Registration of Transfer of Junior Subordinated
Debentures; Restrictions on Transfers; Depositary. If distributed to holders of
Trust Preferred Securities pursuant to Section 8.2 of the Trust Agreement, the
Junior Subordinated Debentures will be issued to such holders in the same form
as the Trust Preferred Securities that such Junior Subordinated Debentures
replace in accordance with the following procedures:
(a) So long as Junior Subordinated Debentures are eligible for book-
entry settlement with the Depositary, or unless required by law, all Junior
Subordinated Debentures that are so eligible will be represented by one or more
Junior Subordinated Debentures in global form (a "Global Debenture") registered
in the name of the Depositary or the nominee of the Depositary. Except as
provided in Section 2.4(d) below, beneficial owners of a Global Debenture shall
not be entitled to have Definitive Debenture Certificates registered in their
names, will not receive or be entitled to receive physical delivery of
Definitive Debenture Certificates and will not be registered holders of such
Global Debentures.
(b) The transfer and exchange of beneficial interests in Global
Debentures shall be effected through the Depositary in accordance with the
Indenture and the procedures and standing instructions of the Depositary and the
Trustee shall make appropriate endorsements to reflect increases or decreases in
principal amounts of such Global Debentures.
(c) If the Junior Subordinated Debentures are distributed to holders
of the Trust Preferred Securities pursuant to the terms of the Trust Agreement,
the Company will use its reasonable best efforts to list the Junior Subordinated
Debentures on the New York Stock Exchange or such other stock exchange or other
organization, if any, on which the Trust Securities are then listed.
(d) Notwithstanding any other provisions of the Indenture (other than
the provisions set forth in this Section 2.4(d)), a Global Debenture may not be
exchanged in whole or in part for Junior Subordinated Debentures registered, and
no transfer of a Global Debenture may be registered, in the name of any person
other than the Depositary or a nominee thereof unless (i) such Depositary (A)
has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Debenture or (B) has ceased to be a clearing agency
registered as such under the Exchange Act and no successor Depositary has been
appointed by the Company within 90 days after its receipt of such notice or its
becoming aware of such ineligibility, (ii) there shall have occurred and be
continuing an Event of Default, or any event which after notice or lapse of time
or both would be an Event of Default under the Indenture, with respect to such
Debenture, or (iii) the Company, in its sole discretion, instructs the Trustee
to exchange such Global Debenture for a Junior Subordinated Debenture that is
not a Global Debenture (in which case such exchange shall be effected by the
Trustee).
The Depositary shall be a clearing agency registered under the
Exchange Act. The Company initially appoints The Depository Trust Company to
act as Depositary with respect to the Global Debentures. Initially, any Global
Debentures shall be registered in the name of Cede & Co., as the nominee of the
Depositary, and deposited with the Trustee as custodian for Cede & Co.
Definitive Junior Subordinated Debentures issued in exchange for all
or a part of a Global Debenture pursuant to this Section 2.4(d) 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. Upon execution and authentication, the Trustee
shall deliver such definitive Junior Subordinated Debentures to the person in
whose names such definitive Junior Subordinated Debentures are so registered.
So long as Junior Subordinated Debentures are represented by one or
more Global Debentures, (i) the registrar for the Junior Subordinated Debentures
and the Trustee shall be entitled to deal with the clearing agency for all
purposes of the Indenture relating to such Global Debentures as the sole holder
of the Junior Subordinated Debentures evidenced by such Global Debentures and
shall have no obligations to the holders of beneficial interests in such Global
Debentures; and (ii) the rights of the holders of beneficial interests in such
Global Debentures shall be exercised only through the clearing agency and shall
be limited to those established by law and agreements between such holders and
the clearing agency and/or the participants in the clearing agency.
At such time as all interests in a Global Debenture have been paid,
redeemed, exchanged, repurchased or canceled, such Global Debenture shall be,
upon receipt thereof, canceled by the Trustee in accordance with standing
procedures and instructions of the Depositary. At any time prior to such
cancellation, if any interest in a Global Debenture is exchanged for definitive
Junior Subordinated Debentures, redeemed by the Company pursuant to Article 3 or
canceled, or transferred for part of a Global Debenture, the principal amount of
such Global Debenture shall, in accordance with the standing procedures and
instructions of the Depositary be reduced or increased, as the case may be, and
an endorsement shall be made on such Global Debenture by, or at the direction
of, the Trustee to reflect such reduction or increase.
2.5 Interest.
(a) Each Junior Subordinated Debenture will bear interest at the rate
of ___% per annum (the "Coupon Rate") from October ___, 2001 until the principal
thereof becomes due and payable, and will bear interest on any overdue principal
at the Coupon Rate and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
Coupon Rate ("Additional Interest"), compounded quarterly, payable (subject to
the provisions of Article 4) quarterly in arrears on the 30th day of
_____________, ____________, ______________ and ____________ of each year (each,
an "Interest Payment Date"), commencing on ___________, 2002 to the Person in
whose name such Junior Subordinated Debenture is registered, subject to certain
exceptions, at the close of business on the Record Date next preceding such
Interest Payment Date. The "Record Date" for payment of interest will be the
Business Day next preceding the Interest Payment Date, unless such Junior
Subordinated Debenture is registered to a holder other than the Property Trustee
or a nominee of the Depositary, in which case the Record Date for payment of
interest will be the fifteenth calendar day preceding the applicable Interest
Payment Date, whether or not a Business Day. Until liquidation, if any, of the
Trust, each Junior Subordinated Debenture will be held in the name of the
Property Trustee in trust for the benefit of the holders of the Trust
Securities.
(b) The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. In the event that any date
on which interest is payable on the Junior Subordinated Debentures is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the next
preceding day which is a Business Day, in each case with the same force and
effect as if made on the date such payment was originally payable.
(c) The Company will also pay any Additional Tax Sums as additional
distributions on the Junior Subordinated Debentures if the Trust is required to
pay any additional taxes, duties or other governmental charges as a result of a
Tax Event.
2.6 Direct Action. In addition to any right of Direct Action granted under
Section 6.5 of the Trust Agreement to the holders of Trust Preferred Securities,
if the Property Trustee fails to enforce its rights under the Trust Agreement or
the Indenture to the fullest extent permitted by law and subject to the terms of
the Trust Agreement and the Indenture, then a holder of Trust Preferred
Securities may directly institute a proceeding against the Company to enforce
the Property Trustee's rights under the Trust Agreement or the Indenture without
first instituting a legal proceeding against the Property Trustee or any other
person.
ARTICLE III
REDEMPTION OF THE JUNIOR SUBORDINATED DEBENTURES
3.1 Tax Event or Investment Company Event Redemption. If a Tax Event or
Investment Company Event (either a "Special Event") shall occur and be
continuing, the Company may redeem the Junior Subordinated Debentures at any
time within 90 days after the occurrence of that Special Event, in whole but not
in part, at a redemption price (the "Special Event Redemption Price") equal to
100% of the principal amount of the Junior Subordinated Debentures plus accrued
and unpaid interest thereon to but excluding the redemption date. The Special
Event Redemption Price shall be paid prior to 2:00 p.m., New York City time, on
the date of such redemption, provided that the Company shall deposit with the
Trustee an amount sufficient to pay the Special Event Redemption Price by 11:00
a.m., New York City time, on the date such Special Event Redemption Price is to
be paid.
3.2 Optional Redemption by Company. The Company shall have the option to
redeem the Junior Subordinated Debentures at any time on or after _____________
2006, in whole or in part, at a redemption price (the "Optional Redemption
Price") equal to 100% of the principal amount of the Junior Subordinated
Debentures plus accrued and unpaid interest thereon to but excluding the
redemption date; provided, however, that if a redemption in part would result in
the delisting of the Trust Preferred Securities, the Company may redeem the
Junior Subordinated Debentures only in whole. The Optional Redemption Price
shall be paid prior to 2:00 p.m., New York City time, on the date of such
redemption, provided that the Company shall deposit with the Trustee an amount
sufficient to pay the Optional Redemption Price by 11:00 a.m., New York City
time, on the date such Optional Redemption Price is to be paid.
3.3 Notice of Redemption. Subject to Article Three of the Base Indenture,
notice of any redemption pursuant to this Article Three will be mailed at least
20 days but not more than 60 days before the redemption date to each holder of
Junior Subordinated Debentures to be redeemed at such holder's registered
address. Unless the Company defaults in payment of the applicable redemption
price, on and after the redemption date interest shall cease to accrue on such
Junior Subordinated Debentures called for redemption.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
4.1 Extension of Interest Payment Period. So long as no Event of Default
under Section 6.1 of the Base Indenture has occurred and is continuing, the
Company shall have the right, subject to the provisions of Section 2.10 of the
Base Indenture, at any time during the term of the Junior Subordinated
Debentures, from time to time to defer the payment of interest by extending the
interest payment period of such Junior Subordinated Debentures for a period not
exceeding 20 consecutive quarters (an "Extension Period"), during which
Extension Period the Company shall not have the right to make partial payments
of interest. No Extension Period shall end on a date other than an Interest
Payment Date or extend beyond the Stated Maturity of the Junior Subordinated
Debentures. To the extent permitted by applicable law, interest, the payment of
which has been deferred because of an Extension Period imposed pursuant to this
Section 4.1, will bear Additional Interest compounded quarterly. At the end of
the Extension Period, the Company shall pay all interest then accrued and unpaid
on the Junior Subordinated Debentures, including any Additional Interest and
Additional Tax Sums, if applicable, to the holders of the Junior Subordinated
Debentures in whose names the Junior Subordinated Debentures are registered in
the Register on the first Record Date preceding the end of the Extension Period.
Before the termination of any Extension Period, the Company may further extend
such Extension Period, provided that such period together with all such further
extensions thereof shall not exceed 20 consecutive quarters, or extend beyond
the Stated Maturity. At any time following the termination of any Extension
Period and upon the payment of any accrued and unpaid Additional Interest and
Additional Tax Sums, if applicable, then due, the Company may elect to begin a
new Extension Period, subject to the foregoing requirements. No interest shall
be due and payable during an Extension Period, except at the end thereof.
During any such Extension Period, the Company shall not (i) declare or
pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's Capital Stock or (ii)
make any payment of principal of or interest on or repay, repurchase or redeem
any debt securities of the Company that rank on a parity with or junior to this
Debenture or make any guarantee payments with respect to any CNG Guarantee or
other guarantee by the Company of the debt securities of any Subsidiary of the
Company that by its terms ranks on a parity with or junior to this Debenture
(other than (a) dividends or distributions in Common Stock, (b) any declaration
of a dividend in connection with the implementation of a Rights Plan, the
issuance of any Capital Stock or any class or series of preferred stock of the
Company under any Rights Plan or the redemption or repurchase of any rights
distributed pursuant to a Rights Plan, (c) payments under any CNG Guarantee
relating to the Trust Preferred Securities issued by the CNG Trust holding the
Junior Subordinated Debentures, and (d) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Company's benefit plans for
its directors, officers, employees, consultants or advisors).
4.2 Notice of Extension.
(a) If the Property Trustee is the only registered holder of the
Junior Subordinated Debentures at the time the Company elects to begin or extend
an Extension Period, the Company shall give written notice to the Property
Trustee, the Administrative Trustees and the Trustee of its election to begin or
extend any Extension Period at least five Business Days prior to the earlier of
(i) the next succeeding date on which Distributions on the Trust Preferred
Securities issued by the Trust would have been payable but for the election to
begin or extend such Extension Period or (ii) subject to applicable principles
of federal securities law, the date the Administrative Trustees are required to
give notice to any securities exchange or other applicable self-regulatory
organization or to holders of such Trust Preferred Securities of the record date
or the date such Distributions are payable, but in any event not less than five
Business Days prior to such record date. An Administrative Trustee shall give
notice of the Company's election to begin or extend an Extension Period to the
holders of such Trust Preferred Securities.
(b) If the Property Trustee is not the only holder of the Junior
Subordinated Debentures at the time the Company elects to begin or extend an
Extension Period, the Company shall give the holders of the Junior Subordinated
Debentures, the Administrative Trustees and the Trustee written notice of its
election to begin or extend such Extension Period at least 10 Business Days
prior to the earlier of (i) the next succeeding Interest Payment Date or (ii)
subject to applicable principles of federal securities law, the date the Company
is required to give notice of the record or payment date of such interest
payment to any applicable self-regulatory organization or to holders of the
Junior Subordinated Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the 20 consecutive
quarters permitted in the maximum Extension Period permitted under Section 4.1.
ARTICLE V
EXPENSES
5.1 Payment of Expenses. In connection with the offering, sale and
issuance of the Junior Subordinated Debentures to the Property Trustee and in
connection with the offering, sale and issuance of the Trust Securities by the
Trust, the Company, in its capacity as borrower with respect to the Junior
Subordinated Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Junior Subordinated Debentures and the Trust Securities,
including commissions to the Underwriters payable pursuant to the Underwriting
Agreement and compensation of the Trustee under the Indenture in accordance with
the provisions of Section 7.6 of the Base Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
fees and expenses of the Property Trustee and the Delaware Trustee, 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 acquisition, financing, and
disposition of Trust assets);
(c) pay all costs and expenses related to the enforcement by the
Property Trustee of the rights of the registered holders of the Trust Preferred
Securities;
(d) be primarily liable for any indemnification obligations arising
with respect to the Trust Agreement and the Underwriting Agreement; and
(e) pay any and all taxes and all liabilities, costs and expenses with
respect to such taxes of the Trust (but not including withholding taxes imposed
on holders of Trust Preferred Securities or Common Securities of the Trust).
5.2 Payment Upon Resignation or Removal. Upon termination of this First
Supplemental Indenture or the Base Indenture or the removal or resignation of
the Trustee pursuant to Section 7.10 of the Base Indenture, the Company shall
pay to the Trustee all amounts owed to it under Section 7.6 of the Base
Indenture accrued to the date of such termination, removal or resignation. Upon
termination of the Trust Agreement or the removal or resignation of the Delaware
Trustee or the Property Trustee, as the case may be, pursuant to Section 6.6 of
the Trust Agreement, the Company shall pay to the Delaware Trustee or the
Property Trustee, as the case may be, and their respective counsel, all amounts
owed to them under Section 4.2 of the Trust Agreement accrued to the date of
such termination, removal or resignation.
ARTICLE VI
FORM OF JUNIOR SUBORDINATED DEBENTURE
6.1 Form of Junior Subordinated Debenture. The Junior Subordinated
Debentures and the Trustee's Certificate of Authentication to be endorsed
thereon are to be substantially in the form attached hereto as Exhibit A.
ARTICLE VII
ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBENTURES
7.1 Original Issue of Junior Subordinated Debentures. Junior Subordinated
Debentures in the initial aggregate principal amount of up to $____________ may
be executed by the Company and delivered to the Trustee for authentication by
it, and the Trustee shall thereupon authenticate and deliver said Junior
Subordinated Debentures to or upon the written order of the Company, signed by
any two of the Chairman of the Board, the President, any Vice President, the
Treasurer, the Controller or the Corporate Secretary of the Company or by any of
the Chairman of the Board, the President, any Vice President, the Treasurer, the
Controller or the Corporate Secretary of the Company and either an Assistant
Treasurer or an Assistant Corporate Secretary, without any further corporate
action by the Company. Additional Junior Subordinated Debentures without
limitation as to amount, and without the consent of the holders the then
Outstanding Junior Subordinated Debentures, may also be authenticated and
delivered in the manner provided in Section 2.1 of the Base Indenture. Any such
additional Junior Subordinated Debentures will have the same Stated Maturity and
other terms as those initially issued.
ARTICLE VIII
MISCELLANEOUS
8.1 Ratification of Indenture; First Supplemental Indenture Controls. The
Indenture, as supplemented by this First Supplemental Indenture, is in all
respects ratified and confirmed, and this First Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent herein and therein
provided. The provisions of this First Supplemental Indenture shall supersede
the provisions of the Indenture to the extent the Indenture is inconsistent
herewith.
8.2 Trustee Not Responsible for Recitals. The recitals herein contained
are made by the Company and not by the Trustee, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no representation
as to the validity or sufficiency of this First Supplemental Indenture.
8.3 Governing Law. This First Supplemental Indenture and each Junior
Subordinated Debenture shall be deemed to be a contract made under the internal
laws of the State of New York, and for all purposes shall be governed by and
construed in accordance with the laws of said State, without regard to the
conflicts of law principles thereof.
8.4 Separability. In case any one or more of the provisions contained in
this First Supplemental Indenture or in the Junior Subordinated Debentures 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 First Supplemental Indenture or of the Junior Subordinated
Debentures, but this First Supplemental Indenture and the Junior Subordinated
Debentures shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
8.5 Counterparts. This First Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first above written.
CONSOLIDATED NATURAL GAS COMPANY
By: ___________________________________
Name:
Title:
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By: ___________________________________
Name:
Title:
EXHIBIT A
(FORM OF FACE OF JUNIOR SUBORDINATED DEBENTURE)
[THIS DEBENTURE IS A GLOBAL DEBENTURE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY. THIS DEBENTURE IS EXCHANGEABLE FOR JUNIOR
SUBORDINATED DEBENTURES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS DEBENTURE (OTHER THAN A TRANSFER OF THIS
DEBENTURE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]
[UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
DEBENTURE 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.]*
THE DEBENTURES EVIDENCED HEREBY WILL BE ISSUED, AND MAY BE
TRANSFERRED, ONLY IN BLOCKS HAVING A PRINCIPAL AMOUNT OF NOT LESS THAN $25. ANY
TRANSFER, SALE OR OTHER DISPOSITION OF SUCH DEBENTURES IN A BLOCK HAVING A
PRINCIPAL AMOUNT OF LESS THAN $25 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL
EFFECT WHATSOEVER. ANY SUCH TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF
SUCH DEBENTURES FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF
PAYMENTS IN RESPECT OF SUCH DEBENTURES, AND SUCH TRANSFEREE SHALL BE DEEMED TO
HAVE NO INTEREST WHATSOEVER IN SUCH DEBENTURES.
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Insert in Global Debentures.
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CONSOLIDATED NATURAL GAS COMPANY
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[Up to]* $___________
___% JUNIOR SUBORDINATED
DEBENTURE DUE ________________, 2041
Dated: October __, 2001
NUMBER ____ [CUSIP NO: ___________________]
Registered Holder:
CONSOLIDATED NATURAL GAS COMPANY, a corporation duly organized and
existing under the laws of the State of Delaware (herein referred to as the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to the
Registered Holder named above, the principal sum [of __________________________
Dollars]**[specified in the Schedule annexed hereto]*** on ________________,
2041 (the "Stated Maturity"), in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debt. The Company further promises to pay to the registered Holder
hereof as hereinafter provided (a) interest on said principal sum (subject to
deferral as set forth herein) at the rate per annum specified in the title of
this debenture (the "Debenture"), in like coin or currency, quarterly in arrears
on the 30th day of _________________, _____________, _______________ and
_________ (each an "Interest Payment Date") commencing _________, 2002 from the
Interest Payment Date next preceding the date hereof to which interest has been
paid or duly provided for (unless (i) no interest has yet been paid or duly
provided for on this Debenture, in which case from _________, 2001, or (ii) the
date hereof is before an Interest Payment Date but after the related Record Date
(as defined below), in which case from such following Interest Payment Date;
provided, however, that if the Company shall default in payment of the interest
due on such following Interest Payment Date, then from the next preceding
Interest Payment Date to which interest has been paid or duly provided for),
until the principal hereof is paid or duly provided for, plus (b) Additional
Interest, as defined in the Indenture, to the extent permitted by applicable
law, on any interest payment that is not made on the applicable Interest Payment
Date, which shall accrue at the rate per annum specified in the title of this
Debenture, compounded quarterly.
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* Insert in Global Debentures and Debentures issued to the Property Trustee.
** Insert in Debentures other than Global Debentures and Debentures issued to
the Property Trustee.
*** Insert in Global Debentures and Debentures issued to the Property Trustee.
The interest so payable will, subject to certain exceptions provided
in the Indenture hereinafter referred to, be paid to the person in whose name
this Debenture is registered at the close of business on the Record Date next
preceding such Interest Payment Date. The Record Date shall be the Business Day
next preceding the Interest Payment Date, unless this Debenture is registered to
a holder other than the Property Trustee or a nominee of The Depository Trust
Company, in which case the Record Date will be the fifteenth calendar day
preceding such Interest Payment Date whether or not a Business Day. This
Debenture may be presented for payment of principal and interest at the
principal corporate trust office of Bank One Trust Company, National
Association, as paying agent for the Company, maintained for that purpose in the
Borough of Manhattan, The City of New York; provided, however, that payment of
interest may be made at the option of the Company (i) by check mailed to such
address of the person entitled thereto as the address shall appear on the
Register of the Debentures or (ii) by transfer to an account maintained by the
Person entitled thereto as specified in the Register, provided that proper
transfer instructions have been received by the Record Date. Interest on the
Debenture will be computed on the basis of a 360-day year of twelve 30-day
months.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time during the term of this Debenture,
from time to time to defer the payment of interest by extending the interest
payment period of this Debenture for a period not exceeding 20 consecutive
quarters (an "Extension Period"), during which Extension Period the Company
shall not have the right to make partial payments of interest. No Extension
Period shall end on a date other than an Interest Payment Date or extend beyond
the Stated Maturity of this Debenture. To the extent permitted by applicable
law, interest, the payment of which has been deferred because of an Extension
Period, will bear Additional Interest compounded quarterly. At the end of the
Extension Period, the Company shall pay all interest then accrued and unpaid on
this Debenture, including any Additional Interest and Additional Tax Sums, if
applicable, to the Person in whose name this Debenture is registered in the
Register on the first Record Date preceding the end of the Extension Period.
Before the termination of any Extension Period, the Company may further extend
such Extension Period, provided that such period together with all such further
extensions thereof shall not exceed 20 consecutive quarters, or extend beyond
the Stated Maturity. At any time following the termination of any Extension
Period and upon the payment of any accrued and unpaid Additional Interest and
Additional Tax Sums, if applicable, then due, the Company may elect to begin a
new Extension Period, subject to the foregoing requirements. No interest shall
be due and payable during an Extension Period, except at the end thereof.
During any such Extension Period, the Company shall not (i) declare or
pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's Capital Stock or (ii)
make any payment of principal of or interest on or repay, repurchase or redeem
any debt securities of the Company that rank on a parity with or junior to this
Debenture or make any guarantee payments with respect to any CNG Guarantee or
other guarantee by the Company of the debt securities of any Subsidiary of the
Company that by its terms ranks on a parity with or junior to this Debenture
(other than (a) dividends or distributions in Common Stock, (b) any declaration
of a dividend in connection with the implementation of a Rights Plan, the
issuance of any Capital Stock or any class or series of preferred stock of the
Company under any Rights Plan or the redemption or repurchase of any rights
distributed pursuant to a Rights Plan, (c) payments under the CNG Guarantee
relating to the Trust Preferred Securities issued by the Trust, and (d)
purchases of Common Stock related to the issuance of Common Stock or rights
under any of the Company's benefit plans for its directors, officers, employees,
consultants or advisors).
If the Property Trustee is the only registered holder of the
Debentures of this series at the time the Company elects to begin or extend an
Extension Period, the Company shall give written notice to the Property Trustee,
the Administrative Trustees and the Trustee of its election to begin or extend
any Extension Period at least five Business Days prior to the earlier of (i) the
next succeeding date on which Distributions on the Trust Preferred Securities
issued by the Trust would have been payable but for the election to begin or
extend such Extension Period or (ii) subject to applicable principles of federal
securities law, the date the Administrative Trustees are required to give notice
to any securities exchange or other applicable self-regulatory organization or
to holders of such Trust Preferred Securities of the record date or the date
such Distributions are payable, but in any event not less than five Business
Days prior to such record date. An Administrative Trustee shall give notice of
the Company's election to begin or extend an Extension Period to the holders of
such Trust Preferred Securities.
If the Property Trustee is not the only holder of the Debentures of
this series at the time the Company elects to begin or extend an Extension
Period, the Company shall give the holders of the Debentures of this series, the
Administrative Trustees and the Trustee written notice of its election to begin
or extend such Extension Period at least 10 Business Days prior to the earlier
of (i) the next succeeding Interest Payment Date or (ii) subject to applicable
principles of federal securities law, the date the Company is required to give
notice of the record or payment date of such interest payment to any applicable
self-regulatory organization or to holders of the Debentures of this series.
The quarter in which any notice is given pursuant to the two preceding
paragraphs shall be counted as one of the 20 consecutive quarters permitted in
the maximum Extension Period.
This Debenture is issued pursuant to an Indenture, dated as of October
1, 2001, between the Company, as issuer, and Bank One Trust Company, National
Association, a national banking association duly organized and existing under
the laws of the United States, as trustee, as supplemented by a First
Supplemental Indenture dated as of October 1, 2001 (as further supplemented or
amended from time to time, the "Indenture"). Reference is made to the Indenture
for a description of the respective rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the Holders
(the word "Holder" or "Holders" meaning the registered holder or registered
holders) of the Debentures. Capitalized terms used herein but not defined
herein shall have the respective meanings assigned thereto in the Indenture. By
acceptance of this Debenture, the Holder hereof agrees to be bound by the
provisions of the Indenture.
The Debentures of this series shall have an initial aggregate
principal amount of ________________________________________ Dollars
($____________).
The Debentures evidenced by this Certificate may be transferred or
exchanged only in minimum denominations of $25 and integral multiples of $25 in
excess thereof, and any attempted transfer, sale or other disposition of
Debentures in a denomination of less than $25 shall be deemed to be void and of
no legal effect whatsoever.
The indebtedness of the Company evidenced by this Debenture, including
the principal hereof and interest hereon, is, to the extent and in the manner
set forth in the Indenture, subordinate and junior in right of payment to the
Company's obligations to Holders of Senior Indebtedness of the Company and each
Holder of this Debenture, by acceptance hereof, agrees to and shall be bound by
such provisions of the Indenture and all other provisions of the Indenture.
This Debenture shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by or on
behalf of the Trustee under the Indenture.
IN WITNESS WHEREOF, CONSOLIDATED NATURAL GAS COMPANY has caused this
instrument to be signed, manually or in facsimile, by any two of the Chairman of
the Board, the President, any Vice President, the Treasurer, the Controller or
the Corporate Secretary of the Company or by any of the Chairman of the Board,
the President, any Vice President, the Treasurer, the Controller or the
Corporate Secretary of the Company and either an Assistant Treasurer or an
Assistant Corporate Secretary under the corporate seal of Consolidated Natural
Gas Company.
CONSOLIDATED NATURAL GAS COMPANY
By: ___________________________________
Name:
Title:
[SEAL]
By: ___________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the series designated herein, referred
to in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION, as
Trustee
By: ______________________________________
Authorized Officer
REVERSE OF DEBENTURE
As provided in and subject to the provisions in the Indenture, the
Company shall have the option to redeem the Debentures of this series at any
time on or after _________, 2006, in whole or in part, at the Optional
Redemption Price. In addition, if a Special Event shall occur and be continuing,
the Company may redeem the Debentures of this series at any time within 90 days
after the occurrence of that Special Event, in whole but not in part, at the
Special Event Redemption Price.
In the case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the Debentures of this
series may be declared, and upon such declaration shall become, due and payable,
in the manner, with the effect and subject to the conditions provided in the
Indenture.
Any consent or waiver by the Holder of this Debenture given as
provided in the Indenture (unless effectively revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Debenture and of any Debenture issued in exchange, registration
of transfer, or otherwise in lieu hereof irrespective of whether any notation of
such consent or waiver is made upon this Debenture or such other Debentures. No
reference herein to the Indenture and no provision of this Debenture 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 Debenture, at
the places, at the respective times, at the rate and in the coin or currency
herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Debenture may be registered on the
Register of the Debentures of this series upon surrender of this Debenture for
registration of transfer at the offices maintained by the Company or its agent
for such purpose, duly endorsed by the Holder hereof or his attorney duly
authorized in writing, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Securities registrar duly executed by
the Holder hereof or his attorney duly authorized in writing, but without
payment of any charge other than a sum sufficient to reimburse the Company for
any tax or other governmental charge incident thereto. Upon any such
registration of transfer, a new Debenture or Debentures of authorized
denomination or denominations for the same aggregate principal amount will be
issued to the transferee in exchange herefor.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, and any agent of the Company or the Trustee
may deem and treat the person in whose name this Debenture shall be registered
upon the Register of the Debentures of this series as the absolute owner of this
Debenture (whether or not this Debenture shall be overdue and notwithstanding
any notation of ownership or other writing hereon) for the purpose of receiving
payment of or on account of the principal hereof and, subject to the provisions
on the face hereof, interest due hereon and for all other purposes; and neither
the Company nor the Trustee nor any such agent shall be affected by any notice
to the contrary.
No recourse shall be had for the payment of the principal of or
interest on this Debenture, or for any claim based hereon or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any stockholder, officer, director or employee, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as a part of
the consideration for the issue hereof, expressly waived and released.
The Company and, by acceptance of this Debenture or a beneficial
interest in this Debenture, each holder hereof and any person acquiring a
beneficial interest herein, agree that for United States federal, state and
local tax purposes it is intended that this Debenture constitute indebtedness.
This Debenture shall be deemed to be a contract made under the laws of
the State of New York (without regard to conflicts of laws principles thereof)
and for all purposes shall be governed by, and construed in accordance with, the
laws of said State.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
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(please insert Social Security or other identifying number of assignee)
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
the within Debenture and all rights thereunder, hereby irrevocably constituting
and appointing
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agent to transfer said Debenture 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 instrument in every particular without
alteration or enlargement, or any change whatever.
[FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL DEBENTURES AND DEBENTURES ISSUED TO
THE PROPERTY TRUSTEE TO REFLECT CHANGES IN PRINCIPAL AMOUNT]*
The initial principal amount of this Debenture is: $___________________
Changes to Principal Amount of Global Debenture and Debenture issued to the
Property Trustee
Principal Amount by which this
Debenture is to be Decreased or Remaining Principal Signature of
Increased and the Reason for the Amount of this Authorized Officer
Date Decrease or Increase Debenture of Trustee
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* Insert Schedule in Global Debentures and Debentures issued to the Property
Trustee.
