EXHIBIT 12(d)(1)
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EL PASO CORPORATION
ISSUER
AND
JPMORGAN CHASE BANK
TRUSTEE
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EIGHTH SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 26, 2002
TO
INDENTURE
DATED AS OF MAY 10, 1999
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SENIOR NOTES DUE AUGUST 16, 2007
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EIGHTH SUPPLEMENTAL INDENTURE, dated as of June 26, 2002 (herein called
the "Eighth Supplemental Indenture"), between EL PASO CORPORATION (formerly
known as El Paso Energy Corporation), a Delaware corporation (herein called the
"Company"), having its principal office at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx
00000 and JPMORGAN CHASE BANK (formerly known as The Chase Manhattan Bank), a
banking corporation duly organized and existing under the laws of the State of
New York, as trustee under the Indenture referred to below (herein called the
"Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the
Trustee the Indenture, dated as of May 10, 1999 (herein called the "Original
Indenture"), providing for the issuance from time to time of one or more series
of the Company's unsecured debentures, notes or other evidences of indebtedness
(herein called the "Securities"), the terms of which are to be determined as set
forth in Section 301 of the Original Indenture;
WHEREAS, Section 901 of the Original Indenture provides, among other
things, that the Company and the Trustee may enter into indentures supplemental
to the Original Indenture for, among other things, the purpose of establishing
the form or terms of Securities of any series as permitted by Sections 201 and
301 of the Original Indenture;
WHEREAS, the Company desires to create a series of the Securities in an
aggregate principal amount of $500,000,000 (up to $575,000,000 if the
over-allotment option of the Underwriters (as defined in the Underwriting
Agreement) is exercised pursuant to the Underwriting Agreement), which series
shall be designated the Senior Notes Due August 16, 2007 (the "Notes"), and all
action on the part of the Company necessary to authorize the issuance of the
Notes under the Original Indenture and this Eighth Supplemental Indenture has
been duly taken; and
WHEREAS, all acts and things necessary to make the Notes, when executed
by the Company and completed, authenticated and delivered by the Trustee as
provided in the Original Indenture and this Eighth Supplemental Indenture, the
valid and binding obligations of the Company and to constitute these presents a
valid and binding supplemental indenture and agreement according to its terms,
have been done and performed.
NOW, THEREFORE, THIS EIGHTH SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises and the issuance of the Notes,
the Company covenants and agrees with the Trustee, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE I
TERMS AND ISSUANCE OF SENIOR NOTES DUE AUGUST 16, 2007
SECTION 1.01 Establishment, Designation and Principal Amount.
(a) There shall be and is hereby authorized a series of Securities
under the Original Indenture designated the "Senior Notes Due August 16, 2007,"
in the initial aggregate principal amount of $500,000,000 (up to $575,000,000 if
the Underwriters' over-allotment option is exercised), which amount shall be as
set forth in the Company Order for the authentication and delivery of the Notes
pursuant to Sections 201 and 303 of the Original Indenture.
(b) The Notes shall mature and the principal shall be due and payable
together with all accrued and unpaid interest thereon on August 16, 2007.
(c) The Notes shall initially be issued in definitive, fully registered
form (the "Definitive Securities"), without coupons, in substantially the form
set out in Exhibit A hereto. The entire principal amount of the Notes shall
initially be evidenced by one or more certificates issued to JPMorgan Chase
Bank, as Purchase Contract Agent under the Purchase Contract Agreement (as
defined below).
(d) The Notes that, in accordance with the Purchase Contract Agreement,
are no longer held as part of Equity Security Units shall be represented
initially by Global Securities. Each such Definitive Security and Global
Security shall represent such aggregate principal amount of the Outstanding
Notes as shall be from time to time endorsed thereon, which principal amounts
may be increased or decreased, as applicable, to reflect Transfers from Pledged
Notes to Separate Notes and Transfers from Separate Notes to Pledged Notes. Any
such increase or decrease in the aggregate principal amount of (i) Definitive
Securities shall be made by the Collateral Agent and (ii) Global Securities
representing Notes shall be made by the Trustee, as custodian of the Global
Securities, in each case upon the instructions of the Purchase Contract Agent
given pursuant to Article IV of the Pledge Agreement; provided, however, that
the combined aggregate principal amount of the Outstanding Notes represented by
the Definitive Securities and Global Securities shall never exceed the amounts
specified in Section 1.01(a) hereof.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.01 Definitions. For purposes of this Eighth Supplemental
Indenture and the Notes, the following terms shall have the meanings indicated
below. Capitalized terms used herein but not defined herein shall have the
meaning assigned to them in the Original Indenture, the Purchase Contract
Agreement, the Remarketing Agreement or the Pledge Agreement, as the case may be
and as the context may require. To the extent of conflicts between definitions
in the Original Indenture and definitions set forth or incorporated herein, the
definitions herein shall control.
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"Applicable Spread" means the spread determined as set forth below,
based on the Prevailing Rating of the Notes in effect at the close of business
on the fifth Business Day immediately preceding the Stock Purchase Date:
Prevailing Rating Spread
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AA/"Aa2"........................................................ 2.00%
A/"A2".......................................................... 3.00%
BBB/"Baa2"...................................................... 4.00%
BBB-/"Baa3"..................................................... 6.00%
Below BBB-/"Baa3"............................................... 7.00%
"Business Day" means any day other than a Saturday or Sunday or a day
on which banking institutions and trust companies in the State of
New York are
authorized or required by law, regulation or executive order to be closed or a
day on which the Purchase Contract Agent, the Collateral Agent or the Trustee is
closed for business.
"Company" has the meaning set forth in the preamble.
"Contingent Payment Regulations" has the meaning set forth in Section
2.11.
"DTC" means The Depository Trust Company.
"Interest Payment Date" has the meaning set forth in Section 2.02.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Notes" has the meaning set forth in the recitals.
"Pledge Agreement" means the Pledge Agreement, dated as of June 26,
2002, between the Company and JPMorgan Chase Bank, as Purchase Contract Agent,
and The Bank of
New York, as Collateral Agent, Custodial Agent and Securities
Intermediary.
"Prevailing Rating" means, for purposes of determining the Applicable
Spread:
(1) AA/"Aa2" if the Notes have a credit rating of AA or better
by S&P and "Aa2" or better by Moody's or the equivalent of such ratings
by such agencies or a substitute rating agency or agencies selected by
the Remarketing Agent, after consultation with the Company;
(2) if not under clause (1) above, then A/"A2" if the Notes
have a credit rating of A or better by S&P and "A2" or better by
Moody's or the equivalent of such ratings by such agencies or a
substitute rating agency or agencies selected by the Remarketing Agent,
after consultation with the Company;
(3) if not under clause (1) or (2) above, then BBB/"Baa2" if
the Notes have a credit rating of BBB or better by S&P and "Baa2" or
better by Moody's or the equivalent of such ratings by such agencies or
a substitute rating agency or agencies selected by the Remarketing
Agent, after consultation with the Company; or
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(4) if not under clause (1), (2), (3) above, then BBB-/"Baa3"
if the Notes have a credit rating of BBB- or better by S&P and "Baa3"
or better by Moody's or the equivalent of such ratings by such agencies
or a substitute rating agency or agencies selected by the Remarketing
Agent, after consultation with the Company; or
(5) if not under clauses (1), (2), (3) or (4) above, then
Below BBB-/"Baa3."
Notwithstanding the foregoing, if:
(A)(1) the credit rating of the Notes by S&P shall be on
the "Credit Watch" of S&P with a designation of
"negative implications" or "developing," or
(2) the credit rating of the Notes by Moody's shall be on
the "Corporate Credit Watch List" of Moody's with a
designation of "downgrade" or "uncertain,"
or, in each case, on any successor list of S&P or
Moody's with a comparable designation, the Prevailing
Rating of the Notes shall be deemed to be within a
range one full level lower in the above table than
those actually assigned to the Notes by S&P and
Xxxxx'x is rating the Notes.
(B) the Notes are not rated by both S&P and Moody's on or
before the fifth Business Day immediately preceding
the Stock Purchase Date, the Prevailing Rating will
at all times be determined by reference to the rating
of whichever of S&P and Xxxxx'x is rating the Notes.
However, if neither S&P nor Moody's shall have in effect a rating of the Notes
and the Remarketing Agent is unable to identify a substitute rating agency or
agencies, the Prevailing Rating shall be Below BBB-/"Baa3."
"Purchase Contract Agreement" means the agreement, dated as of June 26,
2002, between the Company and the Purchase Contract Agent, pursuant to which the
Equity Security Units and Stripped Units will be issued.
"Regular Record Date" means, with respect to each Interest Payment
Date, the close of business on the Business Day preceding such Interest Payment
Date; provided, that with respect to Notes that are not in book-entry only form,
the Regular Record Date shall be the close of business on the 15th day preceding
such Interest Payment Date.
"Remarketing Agreement" means the Remarketing Agreement, dated as of
June 26, 2002, by and among the Company, the Remarketing Agent and the Purchase
Contract Agent.
"Reset Rate" means the interest rate per annum with respect to the
Notes that is determined by the Remarketing Agent pursuant to the Remarketing
Agreement as follows:
(i) in connection with a successful remarketing, the rate of
interest that, in the opinion of the Remarketing Agent, will, when
applied to the Notes participating in the remarketing, enable the then
current aggregate market value of the Notes to have a value equal to
approximately, but not less than, 100.5% of the Remarketing Value as of
the
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Initial Remarketing Date or as of any Subsequent Remarketing Date, as
the case may be; or
(ii) if the Last Failed Remarketing shall have occurred or if
there were no Equity Security Units outstanding on the Initial
Remarketing Date or any Subsequent Remarketing Date and none of the
Holders of Separate Notes elected during any Remarketing Period to have
their Separate Notes participate in a remarketing, the rate of interest
equal to the Two-Year Benchmark Treasury Rate plus the Applicable
Spread,
in each case subject to Section 2.05(l).
"S&P" means Standard & Poor's Ratings Services.
"Stated Maturity" means August 16, 2007.
"Telerate" means the Dow Xxxxx Telerate Service.
"Two-Year Benchmark Treasury" means direct obligations of the United
States (which may be obligations traded on a when-issued basis only) having a
maturity comparable to the remaining term to maturity of the Notes, as agreed
upon by the Company and the Remarketing Agent.
"Two-Year Benchmark Rate" means (i) the bid side rate of the Two-Year
Benchmark Treasury displayed at 10:00 a.m.,
New York City time, on the fifth
Business Day immediately preceding the Stock Purchase Date in the Telerate
system (or, if the Telerate system is (a) no longer available on such date or
(b) in the judgment of the Remarketing Agent (after consultation with the
Company) no longer an appropriate system from which to obtain such rate, such
other nationally recognized quotation system as, in the judgment of the
Remarketing Agent (after consultation with the Company), is appropriate) or (ii)
if such rate cannot be determined as set forth in clause (i) above, the yield to
maturity for the Two-Year Benchmark Treasury, as calculated by the Remarketing
Agent, expressed as a bond equivalent on the basis of a year of 365 or 366 days,
as applicable, and applied on a daily basis, and computed by taking the
arithmetic mean of the secondary market bid rates, as of 10:30 a.m.,
New York
City time, on the fifth Business Day immediately preceding the Stock Purchase
Date of three leading United States government securities dealers selected by
the Remarketing Agent (after consultation with the Company) (which may include
the Remarketing Agent or an affiliate thereof). However, if, in the judgment of
the Remarketing Agent (after consultation with the Company), direct obligations
of the United States are no longer appropriate benchmarks for the purpose of
setting the Reset Rate if the Last Failed Remarketing has occurred, the Company
and the Remarketing Agent shall agree upon another two-year benchmark rate.
SECTION 2.02 Payment of Principal and Interest.
(a) The unpaid principal amount of the Notes shall initially bear
interest at the rate of 6.14% per annum, payable in arrears on each February 16,
May 16, August 16 and November 16 (each, with respect to the Notes, an "Interest
Payment Date"), commencing August 16, 2002, from the original date of issuance,
to, but excluding, the earlier of (i) the settlement date of a successful
remarketing under the Purchase Contract Agreement or (ii) the Stock Purchase
Date,
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and, thereafter, at the Reset Rate to, but excluding, the date on which the
principal of the Notes has been paid or made available for payment.
(b) Interest shall be payable quarterly in arrears on each Interest
Payment Date to the Person in whose name the Notes are registered on the Regular
Record Date for such Interest Payment Date; provided that interest payable on
the Stated Maturity shall be paid to the person to whom principal is payable. As
provided in Section 307 of the Original Indenture, any such interest not
punctually paid or duly provided for with respect to any Interest Payment Date
shall forthwith cease to be payable to the registered holders on such Regular
Record Date, and may be paid to the person or persons in whose name the Notes
are registered at the close of business on a special record date to be fixed by
the Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered holders of the Notes not less than ten days prior to
such special record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange, if any, on
which the Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in Section 307 of the Original Indenture.
(c) The amount of interest payable for any period will be computed:
(1) for any full quarterly period, on the basis of a 360-day
year of twelve 30-day months,
(2) for any period shorter than a full quarterly period, on
the basis of a 30-day month; and
(3) for periods of less than a month, on the basis of the
actual number of days elapsed per 30-day month.
If any date on which interest or principal is payable is not a Business
Day, then payment of interest or principal 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
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
(d) Payment of the principal of and interest on the Notes shall be made
at an office or agency of the Company maintained for that purpose in the Borough
of Manhattan, The City of
New York, at the Office of the Agent in The City of
New York (in the case of Pledged Notes) or at the Corporate Trust Office (in the
case of Separate Notes) 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, with any such payment that is due on the Stated Maturity being made upon
surrender of such Notes to the Office of the Agent in The City of
New York or
the Corporate Trust Office, as the case may be. Payments of interest will be
made, subject to such surrender upon payment of principal at Stated Maturity, at
the option of the Company, (i) by check mailed to the address of the person
entitled thereto as such address shall appear in the Security Register or (ii)
by wire transfer at such place and to such account at a banking institution in
the United States as may be designated in writing to the Trustee at least five
Business Days prior to the date for payment by the Person entitled hereto.
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SECTION 2.03 Denominations. The Notes shall be issued in denominations
of $50 and integral multiples of $50.
SECTION 2.04 Global Securities.
(a) The Notes that, in accordance with the Purchase Contract Agreement,
are no longer part of the Equity Security Units will be exchanged for Notes in
the form of one or more Global Securities registered in the name of DTC or its
nominee. Except under the limited circumstances described below or in Section
2.04(c) below, Notes represented by such Global Securities will not be
exchangeable for, and will not otherwise be issuable as, Notes in definitive
form. The Global Securities described above may not be transferred except by DTC
to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or
to a successor Depository or its nominee.
(b) Owners of beneficial interests in such a Global Security will not
be considered the Holders thereof for any purpose under the Indenture, and no
Global Security representing a Note shall be exchangeable, except for another
Global Security of like denomination and tenor to be registered in the name of
DTC or its nominee or to a successor Depositary or its nominee or except as
described below. The rights of owners of beneficial interests in such a Global
Security shall be exercised only through DTC.
(c) Notwithstanding anything to the contrary in Section 305 of the
Original Indenture, a Global Security shall be exchangeable for Notes registered
in the names of persons other than DTC or its nominee only if:
(i) DTC notifies the Company that it is unwilling or unable to
continue as a Depositary for such Global Security and no successor
Depositary shall have been appointed by the Company within 90 days of
receipt by the Company of such notification;
(ii) if at any time DTC ceases to be a clearing agency
registered under the Securities Exchange Act of 1934 at a time when DTC
is required to be so registered to act as such Depositary and no
successor Depositary shall have been appointed by the Company within 90
days after it becomes aware of such cessation;
(iii) the Company in its sole discretion determines that it no
longer has any senior debt securities represented by global securities
or that it will permit a Global Security to be exchangeable; or
(iv) an Event of Default under the Indenture has occurred and
is continuing.
Any Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Notes registered in such names as DTC shall direct.
SECTION 2.05 Remarketing.
(a) The Pledged Notes comprising part of Equity Security Units and the
Separate Notes of holders of Separate Notes that have elected in accordance with
Section 2.06(a) hereof to participate in a remarketing shall be remarketed by
the Remarketing Agent.
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(b) On the seventh Business Day immediately preceding the Initial
Remarketing Date or the first day of any subsequent Remarketing Period, as
applicable, the Company shall give Holders of Separate Notes notice of the
upcoming remarketing in a daily newspaper in the English language of general
circulation in The City of
New York, which is expected to be The Wall Street
Journal. Not later than seven nor more than 15 calendar days prior to the
Initial Remarketing Date or the first day of any subsequent Remarketing Period,
as applicable, the Company shall request DTC (or any successor Clearing Agency)
to notify, directly or indirectly, each Beneficial Owner or Clearing Agency
Participant holding an Equity Security Unit or Stripped Units and each
Beneficial Owner of a Separate Note of the upcoming remarketing and of the
procedures that must be followed in connection with the upcoming remarketing, as
applicable.
(c) On the third Business Date immediately preceding the Initial
Remarketing Date or the first day of any subsequent Remarketing Period, as
applicable, not later than 10:00 a.m.,
New York City time, pursuant to the terms
of the Pledge Agreement, the Collateral Agent shall notify the Remarketing Agent
of the aggregate number of Pledged Notes to be remarketed. On the third Business
Day immediately preceding the Initial Remarketing Date or the first day of any
subsequent Remarketing Period, as applicable, not later than by 10:00 a.m., New
York City time, pursuant to the terms of the Pledge Agreement, the Custodial
Agent will notify the Remarketing Agent of the aggregate number of Separate
Notes to be remarketed. On the third Business Day immediately preceding the
Initial Remarketing Date or the first day of any subsequent Remarketing Period,
as applicable, the Collateral Agent and the Custodial Agent, pursuant to the
terms of the Pledge Agreement, will deliver for remarketing to the Remarketing
Agent all Pledged Notes and all Separate Notes delivered to the Custodial Agent
pursuant to Section 4.5(d) of the Pledge Agreement and not withdrawn pursuant to
the terms thereof prior to such date.
(d) The right of each Holder of Notes to have its Notes tendered for
purchase will be limited to the extent that (i) the Remarketing Agent conducts a
remarketing pursuant to the terms of the Remarketing Agreement, (ii) the
Remarketing Agent is able to find a purchaser or purchasers for the tendered
Notes and (iii) such purchaser or purchasers deliver the purchase price therefor
to the Remarketing Agent.
(e) Upon receipt of the notice provided for in Section 2.05(c) from the
Collateral Agent and the Custodial Agent and such Notes from the Collateral
Agent and the Custodial Agent, the Remarketing Agent will, on the Initial
Remarketing Date, use its commercially reasonable best efforts to (i) establish
the Reset Rate (as defined in clause (i) of the definition of such term) and
(ii) sell the Notes participating in such remarketing on such date at a price
equal to approximately, but not less than, 100.5% of the Remarketing Value.
(f) If, despite using its commercially reasonable best efforts, the
Remarketing Agent cannot, on the Initial Remarketing Date, establish the Reset
Rate (as defined in clause (i) of the definition of such term) and remarket the
Notes participating in the remarketing at a price equal to approximately, but
not less than, 100.5% of the Remarketing Value, the Remarketing Agent will again
attempt to establish the Reset Rate (as defined in clause (i) of the definition
of such term) and remarket the Notes participating in the remarketing at a price
equal to approximately, but not less than, 100.5% of the Remarketing Value on
each of the two next succeeding Business Days. If the Remarketing Agent cannot
remarket the Notes participating in the remarketing at a price equal to
approximately, but not less than, 100.5% of the Remarketing Value on either of
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those days, it will attempt to establish the Reset Rate (as defined in clause
(i) of the definition of such term) and remarket the Notes participating in the
remarketing at a price equal to approximately, but not less than, 100.5% of the
Remarketing Value on each of the three Business Days immediately preceding July
1, 2005. If the Remarketing Agent cannot establish the Reset Rate (as defined in
clause (i) of the definition of such term) and remarket the Notes participating
in the remarketing at a price equal to approximately, but not less than, 100.5%
of the Remarketing Value either on the Initial Remarketing Date or any of the
two Business Days next succeeding the Initial Remarketing Date or on any of the
three Business Days immediately preceding July 1, 2005, the remarketing in each
such period will be deemed to have failed (each, a "Failed Remarketing"). If
there have been two Failed Remarketings, the Remarketing Agent will further
attempt to establish the Reset Rate (as defined in clause (i) of the definition
of such term) and remarket the Notes participating in the remarketing at a price
equal to approximately, but not less than, 100.5% of the Remarketing Value on
each of the seventh, sixth and fifth Business Days immediately preceding the
Stock Purchase Date. If, despite using its commercially reasonable best efforts,
the Remarketing Agent fails to remarket the Notes participating in the
remarketing at a price equal to approximately, but not less than, 100.5% of the
Remarketing Value by 4:00 p.m., New York City time, on the fifth Business Day
immediately preceding the Stock Purchase Date, the "Last Failed Remarketing"
will be deemed to have occurred.
(g) Upon the occurrence of a successful remarketing, by approximately
4:30 p.m., New York City time, on the date of the successful remarketing, the
Remarketing Agent shall advise, by telephone (promptly confirmed in writing in
the case of clause (i)):
(i) the Company, the Purchase Contract Agent, the Collateral
Agent, the Custodial Agent, the Securities Intermediary, DTC and the
Trustee of the Reset Rate determined in the remarketing in accordance
with clause (i) of the definition of Reset Rate;
(ii) each purchaser (or the Clearing Agency Participant
thereof) of Notes in the remarketing of the Reset Rate and the number
of Notes such purchaser is to purchase; and
(iii) each purchaser to give instructions to its Clearing
Agency Participant to pay the purchase price on the date of settlement
for such remarketing in same day funds against delivery of the
remarketed Notes purchased through the facilities of DTC.
The Remarketing Agent also shall, in accordance with the Purchase
Contract Agreement and the Remarketing Agreement, use the proceeds from the
successful remarketing attributable to the Pledged Notes to purchase the
Treasury Consideration with the CUSIP numbers, if any, selected by the
Remarketing Agent, described in clauses (1) and (2) of the definition of
Remarketing Value.
(h) On the date of settlement of the successful remarketing, which
shall be the third Business Day following the Initial Remarketing Date or such
Subsequent Remarketing Date, as the case may be, the Notes will begin bearing
interest at the Reset Rate and the Remarketing Agent shall deliver such Treasury
Consideration to the Purchase Contract Agent, which shall thereupon deliver such
Treasury Consideration to the Collateral Agent. The Collateral Agent,
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for the benefit of the Company, shall thereupon apply such Treasury
Consideration, in accordance with the Pledge Agreement, to secure such Holders'
obligations under the Purchase Contracts related to Equity Security Units. On
the third Business Day following such Initial Remarketing Date or Subsequent
Remarketing Date, as the case may be, the Remarketing Agent also shall:
(i) deduct and retain for itself the Remarketing Fee;
(ii) remit the remaining portion of the proceeds from the
successful remarketing attributable to the Separate Notes to the
Custodial Agent for payment to the holders of Separate Notes that were
remarketed; and
(iii) remit the remaining portion, if any, of the proceeds to
the Purchase Contract Agent for payment to the Holders of the Equity
Security Units.
(i) Any distribution to Holders of excess funds and interest described
in this Section 2.05 shall be payable at the Office of the Agent in The City of
New York (in the case of Pledged Notes) or Corporate Trust Office (in the case
of Separate Notes), as the case may be, maintained for that purpose or, at the
option of the Holder or the holder of Separate Notes, as applicable, by check
mailed to the address of the Person entitled thereto at such address as it
appears on the relevant Register or by wire transfer to an account specified by
the Holder or the holder of Separate Notes, as applicable.
(j) Upon the occurrence of a Failed Remarketing, the Remarketing Agent
and the Company, as applicable, shall take the following actions:
(i) the Remarketing Agent shall notify by telephone the
Company, the Purchase Contract Agent, the Collateral Agent, the
Custodial Agent and the Trustee that a Failed Remarketing has occurred,
whereupon the Company shall notify DTC, by telephone, that a Failed
Remarketing has occurred;
(ii) the Company shall cause a notice of the Failed
Remarketing to be published, not later than the fourth Business Day
following the last day of such Remarketing Period, by means of
Bloomberg and Reuters newswires and a daily newspaper in the English
language of general circulation in The City of New York, which is
expected to be The Wall Street Journal; and
(iii) the Remarketing Agent shall, within three Business Days
following the last day of such Remarketing Period, return the Pledged
Notes that were to be remarketed to the Collateral Agent and the
Separate Notes that were to be remarketed to the Custodial Agent for
redelivery to such holders of such Separate Notes.
(k) Upon the occurrence of the Last Failed Remarketing, the Remarketing
Agent shall notify by telephone the Company, the Agent, the Collateral Agent,
the Custodial Agent and the Trustee that the Last Failed Remarketing has
occurred, whereupon the Company shall notify the Depositary that the Last Failed
Remarketing has occurred. The Company also shall cause a notice of the Last
Failed Remarketing to be published not later than the fourth Business Day
following the fifth Business Day immediately preceding the Stock Purchase Date
by means of Bloomberg and Reuters newswires and a daily newspaper in the English
language of general
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circulation in the City of New York, which is expected to be The Wall Street
Journal. The Remarketing Agent also shall, within three Business Days following
the fifth Business Day immediately preceding the Stock Purchase Date, return the
Pledged Notes to the Collateral Agent and the Separate Notes that were to be
remarketed to the Custodial Agent for redelivery to such holders of such
Separate Notes. In addition, pursuant to the written direction of the Company,
the Collateral Agent shall, for the benefit of the Company, deliver or dispose
of any Pledged Notes in accordance with the Company's written direction to
satisfy in full, from any such disposition or delivery, such Holders'
obligations under the related Purchase Contracts to pay the Purchase Price for
the Common Stock, and any accrued and unpaid interest on such Notes will become
payable by the Company to the Purchase Contract Agent for payment to the Holders
of the Equity Security Units to which such Notes relate in accordance with the
Purchase Contract Agreement. Such payment will be made by the Company not later
than 11:00 a.m., New York City time, on the Stock Purchase Date in lawful money
of the United States by certified or cashier's check or wire transfer in
immediately available funds payable to or upon the order of the Purchase
Contract Agent. In addition, the Remarketing Agent shall notify the Company, the
Custodial Agent and the Trustee of the Reset Rate as determined in accordance
with clause (ii) of the definition of Reset Rate and the Notes will begin
bearing interest at such Reset Rate on the Stock Purchase Date.
(l) Anything herein to the contrary notwithstanding, the Reset Rate
shall in no event exceed the maximum rate permitted by applicable law and, as
provided in the Remarketing Agreement, the Remarketing Agent shall have no
obligation to determine whether there is any limitation under applicable law on
the Reset Rate or, if there is any such limitation, the maximum permissible
Reset Rate on the Notes and it shall rely solely upon written notice from the
Company (which the Company agrees to provide prior to the eighth Business Day
immediately preceding the Initial Remarketing Date) as to whether or not there
is any such limitation and, if so, the maximum permissible Reset Rate.
(m) In accordance with DTC's normal procedures, on the date of
settlement of such Remarketing or the Stock Purchase Date, as applicable, the
transactions described above with respect to each Note remarketed in the
remarketing shall be executed through DTC, and the accounts of the respective
Clearing Agency Participants shall be debited and credited and such remarketed
Notes delivered by book entry as necessary to effect purchases and sales of such
remarketed Notes. DTC shall make payment in accordance with its normal
procedures.
(n) If any Holder of Notes selling Notes in the remarketing fails to
deliver such Notes, the direct or indirect Clearing Agency Participant of such
selling Holder and of any other Person who was to have purchased Notes in the
remarketing may deliver to any such other Person an aggregate principal amount
of Notes that is less than the aggregate principal amount of Notes that
otherwise was to be purchased by such Person. In such event, the aggregate
principal amount of Notes to be so delivered shall be determined by such direct
or indirect Clearing Agency Participant, and delivery of such lesser aggregate
principal amount of Notes shall constitute good delivery.
(o) The Remarketing Agent is not obligated to purchase any Notes that
otherwise would remain unsold in the remarketing. Neither the Company nor the
Remarketing Agent shall be obligated in any case to provide funds to make
payment upon tender of the Notes for remarketing.
-11-
(p) Under the Remarketing Agreement, the Company, in its capacity as
issuer of the Notes, shall be liable for, and shall pay, any and all costs and
expenses incurred in connection with the remarketing, other than the Remarketing
Fee.
(q) The settlement procedures set forth herein, including provisions
for payment by purchasers of the remarketed Notes in the remarketing, shall be
subject to modification to the extent required by DTC or if the book-entry
system is no longer available for the remarketed Notes at the time of the
remarketing, to facilitate the remarketing of the remarketed Notes in
certificated form, and shall provide for the authentication and delivery of
Notes in a principal amount equal to the unremarketed portion of such Notes. In
addition, the Remarketing Agent may modify the settlement procedures set forth
herein in order to facilitate the settlement process.
SECTION 2.06 Optional Remarketing.
(a) At any time after the Interest Payment Date immediately preceding
the last Interest Payment Date before the Stock Purchase Date and prior to 11:00
a.m., New York City time, on the fourth Business Day immediately preceding the
Initial Remarketing Date or the first day of any subsequent Remarketing Period,
as applicable, holders of Separate Notes may elect to have their Separate Notes
remarketed by Transferring such Separate Notes and delivering a notice of such
election, substantially in the form of Exhibit C to the Pledge Agreement, to the
Custodial Agent. Pursuant to the terms of the Pledge Agreement, the Custodial
Agent will hold such Separate Notes in an account separate from the Collateral
Account. On the third Business Day immediately preceding the Initial Remarketing
Date or the first day of any subsequent Remarketing Period, as applicable, not
later than 10:00 a.m., New York City time, pursuant to the terms of the Pledge
Agreement, the Custodial Agent shall notify the Remarketing Agent of the
aggregate number of Separate Notes to be remarketed. A holder of Separate Notes
electing to have its Separate Notes remarketed will also have the right to
withdraw such election by written notice to the Custodial Agent, substantially
in the form of Exhibit D to the Pledge Agreement, prior to 11:00 a.m., New York
City time, on the fourth Business Day immediately preceding the Initial
Remarketing Date or the first day of a subsequent Remarketing Period, as
applicable, upon which notice the Custodial Agent will return such Separate
Notes to such holder.
(b) On the third Business Day immediately preceding the Initial
Remarketing Date or the first day of any subsequent Remarketing Period, as
applicable, the Custodial Agent, pursuant to the terms of the Pledge Agreement,
will deliver to the Remarketing Agent for remarketing all Separate Notes
delivered to the Custodial Agent pursuant to Section 4.5(d) of the Pledge
Agreement and not withdrawn pursuant to the terms thereof prior to such date. If
the holder of the Separate Notes delivers only such notice but not the Separate
Notes subject to such notice, then none of such holder's Separate Notes shall be
included in the remarketing. Once the holder of Separate Notes elects to
participate in the remarketing, such Separate Notes will be remarketed in the
remarketing, unless such notice is properly withdrawn. After deducting and
retaining for itself the Remarketing Fee, the Remarketing Agent will remit the
remaining portion of the proceeds from the successful remarketing attributable
to the Separate Notes to the Custodial Agent for payment to the holders of
Separate Notes that were remarketed. In accordance with Section 4.5(d) of the
Pledge Agreement, upon the occurrence of a Failed Remarketing, the Remarketing
Agent will, within three Business Days following the last day of
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such Remarketing Period, return such Separate Notes that were to be remarketed
to the Custodial Agent for redelivery to such holders of such Separate Notes.
SECTION 2.07 Sinking Fund. The Notes shall not be entitled to any
sinking fund.
SECTION 2.08 Redemption and Repurchase. Except as provided in Section
2.10, the Notes shall not be redeemable prior to their Stated Maturity.
SECTION 2.09 Defeasance. The provisions of Article Thirteen of the
Original Indenture shall not apply to the Notes.
SECTION 2.10 Tax Event Redemption.
(a) If a Tax Event shall occur, the Company may, at its option, redeem
the Notes in whole (but not in part) at any time at a price equal to the
Redemption Price. Installments of interest on the Notes that are due and payable
on or prior to the date of redemption (the "Tax Event Redemption Date") will be
payable to the Holders of the Notes registered as such on the Record Date next
preceding such Tax Event Redemption Date.
(b) If, following the occurrence of a Tax Event prior to the earlier of
a successful remarketing and the Stock Purchase Date, the Company exercises its
option to redeem the Notes, the Company shall appoint the Quotation Agent to
assist the Collateral Agent in purchasing the Treasury Portfolio, in
consultation with the Company.
(c) Payment of the Redemption Price owed to each Holder of Notes shall
be made by the Company, not later than 12:00 noon, New York City time, on the
Tax Event Redemption Date, by check or wire transfer in immediately available
funds (provided the necessary wire instructions have been provided to the
Trustee at least 15 days prior to the Tax Event Redemption Date) at such place
and to such account as may be designated by each such Holder of Notes, in the
case of Separate Notes, or to the Collateral Agent, in the case of Pledged
Notes. The Collateral Agent shall, in accordance with Section 4.3 of the
Purchase Contract Agreement and Section 6.3 of the Pledge Agreement, apply the
aggregate Redemption Price for the Pledged Notes to the purchase of the Treasury
Portfolio and promptly remit the remaining portion, if any, of such aggregate
Redemption Price to the Purchase Contract Agent for payment to the Holders of
the Equity Security Units. The Treasury Portfolio will be substituted for the
Pledged Notes, and will be pledged to the Collateral Agent in accordance with
the terms of the Pledge Agreement to secure the obligation of each Holder of an
Equity Security Unit to purchase the Common Stock under the Purchase Contract
constituting a part of such Equity Security Units. If the Trustee or Collateral
Agent, as the case may be, holds immediately available funds sufficient to pay
the Redemption Price of the Notes, then, on such Tax Event Redemption Date, such
Notes will cease to be Outstanding.
(d) The Trustee shall have no duty or liability to determine or verify
the Redemption Price. Notice of a Tax Event Redemption will be mailed at least
30 days but not more than 60 days before the Tax Event Redemption Date to each
registered Holder of the Notes to be redeemed at its registered address. Unless
the Company defaults in payment of the Redemption Price, interest shall cease to
accrue on the Notes on and after the Tax Event Redemption Date, whether or not
such Notes have been received by the Company, and all other rights of the
-13-
Holders in respect of the Notes shall terminate and lapse (other than the right
to receive the Redemption Price upon delivery of such Notes but without interest
on such Redemption Price).
SECTION 2.11 Tax Treatment. The Company agrees, and by acceptance of a
beneficial ownership interest in the Notes, each beneficial holder of Notes will
be deemed to have agreed, to:
(1) treat the acquisition of an Equity Security Unit as the
acquisition of the Note and the Purchase Contract constituting the
Equity Security Unit and to allocate the purchase price of the Equity
Security Unit between the Note and the Purchase Contract as $50 and $0,
respectively;
(2) treat the Notes as indebtedness that is subject to Treas.
Reg. Sec. 1.1275-4 (the "Contingent Payment Regulations") for United
States federal income tax purposes; and
(3) be bound by the Company's determination of the "comparable
yield" and "projected payment schedule," within the meaning of the
Contingent Payment Regulations, with respect to the Notes for United
States federal income tax purposes.
A Holder of Notes may obtain the amount of original issue discount,
issue date, yield to maturity, comparable yield and projected payment schedule
by submitting a written request for it to the Company at the following address:
El Paso Corporation, Investor Relations, 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx
00000.
ARTICLE III
CERTAIN AMENDMENTS TO THE ORIGINAL INDENTURE
SECTION 3.01 Modification of Section 1104 in Respect of the Senior
Notes. Notwithstanding the terms of Section 1104 of the Original Indenture, if
the Company elects to redeem any of the Outstanding Notes upon the occurrence of
a Tax Event, the notice of redemption required to be furnished pursuant to
Section 1104 of the Original Indenture does not need to specify the Redemption
Price, but such notice of redemption may instead specify the manner of
calculation of the Redemption Price. In such event, the Company shall notify the
Trustee of the Redemption Price with respect to such redemption promptly after
the calculation thereof, and the Trustee shall not be responsible for such
calculation.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01 Recitals by Company. This
Eighth Supplemental Indenture is
executed and shall be construed as an indenture supplemental to the Original
Indenture and, as provided in the Original Indenture, this
Eighth Supplemental
Indenture forms a part thereof. Except as herein expressly otherwise defined,
the use of the terms and expressions herein is in accordance with the
definitions, uses and constructions contained in the Original Indenture.
-14-
SECTION 4.02 Responsibility for Recitals, Etc. The recitals herein and
in the Notes (except in the Trustee's certificate of authentication) shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no representations
as to the validity or sufficiency of this
Eighth Supplemental Indenture or of
the Notes. The Trustee shall not be accountable for the use or application by
the Company of the Notes or of the proceeds thereof.
SECTION 4.03 Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements in this Eighth Supplemental
Indenture contained by the Company shall bind its successors and assigns whether
so expressed or not.
SECTION 4.04 Governing Law. This Eighth Supplemental Indenture and each
Note shall be governed by, and construed in accordance with, the laws of the
State of New York.
SECTION 4.05 Execution and Counterparts. This Eighth Supplemental
Indenture may be executed with counterpart signature pages or in any number of
counterparts, each of which shall be an original but such counterparts shall
together constitute but one and the same instrument.
-15-
IN WITNESS WHEREOF, EL PASO CORPORATION has caused this Eighth
Supplemental Indenture to be executed in its corporate name by its Chairman of
the Board or its President or one of its Vice Presidents, and JPMORGAN CHASE
BANK has caused this Eighth Supplemental Indenture to be executed in its
corporate name by one of its Assistant Vice Presidents as of June 26, 2002.
EL PASO CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President and Treasurer
JPMORGAN CHASE BANK, as Trustee
By: /s/ X. Xxxxxxxx
--------------------------------------------
Name: X. Xxxxxxxx
Title: Assistant Vice President
-16-
EXHIBIT A
(Face of Note)
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE
DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR
OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE
FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
CUSIP No. 28336L AF 0
XXXX Xx. XX00000X AF 67
No.: ___ $_______________
EL PASO CORPORATION
Senior Note Due August 16, 2007
El Paso Corporation, a corporation duly organized and existing
under the laws of Delaware (the "Company," which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to [Cede & Co., as nominee for The Depository Trust
Company]* or its registered assigns, the principal sum of
_______________________ United States Dollars [, or such other principal amount
as shall be set forth in the Schedule of Increases or Decreases attached
hereto,]** at the Corporate Trust Office or the Office of the Agent in The City
of New York, on August 16, 2007 in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the
----------
* Insert in Global Securities.
** Insert in Global Securities and Pledged Notes.
A-1
payment of public and private debts, and to pay interest thereon from June 26,
2002 or from the next most recent date to which interest has been paid or duly
provided for, quarterly in arrears on each February 16, May 16, August 16 and
November 16 of each year (each such date, an "Interest Payment Date"),
commencing on August 16, 2002, at the rate of 6.14% per annum to, but excluding,
the earlier of (i) the date of settlement of a successful remarketing under the
Purchase Contract Agreement or (ii) the Stock Purchase Date, and, thereafter, at
the Reset Rate to, but excluding, the date on which the principal hereof has
been paid or made available for payment.
The amount of interest so payable for any period shall be
computed (i) for any full quarterly period on the basis of a 360-day year of
twelve 30-day months; (ii) for any period shorter than a full quarterly period,
on the basis of a 30-day month; and (iii) for periods of less than a month, on
the basis of the actual number of days elapsed per 30-day month. In the event
that any Interest Payment Date is not a Business Day, then payment of the
interest or principal payable on such date will be made on the next succeeding
day which is a Business Day and no interest shall accrue in respect of the
amounts which payment is so delayed for the period from and after such Interest
Payment Date, except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
Payments of the principal of and interest on the Notes shall
be made at the Corporate Trust Office or the Office of the Agent in The City of
New York; provided that, unless this Note is a Note issued in global form
("Global Security"), interest may be paid, at the option of the Company, (i) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer at such place and to
such account at a banking institution in the United States as may be designated
in writing to the Trustee at least five Business Days prior to the date for
payment by the Person entitled thereto. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date, as provided in the
Indenture, as hereinafter defined, shall be paid to the Person in whose name
this Note (or one or more Predecessor Securities) shall have been registered at
the close of business on the Regular Record Date with respect to such Interest
Payment Date, provided that interest payable on the Stated Maturity shall be
paid to the Person to whom principal is paid. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and shall be paid as provided in said
Indenture.
Reference is hereby made to the further provisions of this
Note set forth herein, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to herein by manual signature, this Note shall
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: ___________________
EL PASO CORPORATION
By:
---------------------------------
Name:
Title:
A-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: ___________________
JPMORGAN CHASE BANK,
as Trustee
By:
---------------------------------
Authorized Officer
A-4
[Reverse of Note]
El Paso Corporation
Senior Note Due August 16, 2007
This Note is one of a duly authorized issue of securities of
the Company (the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of May 10, 1999 (the "Original Indenture"), as
previously supplemented and as supplemented by an eighth supplemental indenture,
dated as of June 26, 2002 (the "Eighth Supplemental Indenture" and the Original
Indenture, as so supplemented, the "Indenture"), between the Company and
JPMorgan Chase Bank, a New York banking corporation, as trustee (the "Trustee,"
which term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders and of the terms upon which the Securities are, and are
to be, authenticated and delivered. This Note is one of a series designated as
Senior Notes Due August 16, 2007 of the Company (hereinafter called the
"Notes"), issued under the Original Indenture, which Notes are limited in
aggregate principal amount to $500,000,000 (up to $575,000,000 if the
over-allotment option of the Underwriters (as such term is defined in the
Underwriting Agreement) is exercised pursuant to the Underwriting Agreement).
Except as provided in Sections 1006 and 1007 of the Original
Indenture, neither the Original Indenture nor the Notes limit or otherwise
restrict the amount of indebtedness which may be incurred or other securities
which may be issued by the Company. The Notes issued under the Indenture are
direct, unsecured obligations of the Company and will mature on August 16, 2007.
The Notes rank on parity with all other unsecured, unsubordinated indebtedness
of the Company.
The Notes will bear interest as set forth on the face hereof
and in the Eighth Supplemental Indenture. The Reset Rate will be the interest
rate per annum that is determined by the Remarketing Agent pursuant to the
Remarketing Agreement as follows: (i) in connection with a successful
remarketing, the rate of interest that, in the opinion of the Remarketing Agent,
will, when applied to the Notes participating in the remarketing, enable the
then current aggregate market value of the Notes to have a value equal to
approximately, but not less than, 100.5% of the Remarketing Value as of the
Initial Remarketing Date or as of any Subsequent Remarketing Date, as the case
may be, or (ii) if the Last Failed Remarketing shall have occurred or if there
were no Equity Security Units outstanding on the Initial Remarketing Date or any
Subsequent Remarketing Date and none of the Holders of Separate Notes elected
during any Remarketing Period to have their Separate Notes participate in a
remarketing, the rate of interest equal to the Two-Year Benchmark Treasury Rate
plus the Applicable Spread. Notwithstanding anything contained herein to the
contrary, the Reset Rate shall in no event exceed the maximum rate, if any,
permitted by applicable law.
The Notes are not redeemable prior to maturity except pursuant
to a Tax Event in accordance with the Eighth Supplemental Indenture. If a Tax
Event shall occur, the Company
A-5
may, at its option, redeem the Notes in whole (but not in part) at any time at a
price equal to the Redemption Price. Installments of interest on the Notes that
are due and payable on or prior to the Tax Event Redemption Date will be payable
to the Holders of the Notes registered as such on the Record Date next preceding
such Tax Event Redemption Date.
The Company agrees, and by acceptance of a beneficial
ownership interest in the Notes, each beneficial holder of Senior Notes will be
deemed to have agreed (1) to treat the acquisition of an Equity Security Unit as
the acquisition of the Note and the Purchase Contract constituting the Equity
Security Unit and to allocate the purchase price of the Equity Security Unit
between the Note and the Purchase Contract Payment as $50 and $0, respectively,
(2) to treat the Notes as indebtedness that is subject to Treas. Reg. Sec.
1.1275-4 (the "Contingent Payment Regulations") for United States federal income
tax purposes and (3) to be bound by the Company's determination of the
"comparable yield" and "projected payment schedule," within the meaning of the
Contingent Payment Regulations, with respect to the Notes for United States
federal income tax purposes. A Holder of Notes may obtain the amount of original
issue discount, issue date, yield to maturity, comparable yield and projected
payment schedule by submitting a written request for it to the Company at the
following address: El Paso Corporation, Investor Relations, 0000 Xxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxx 00000.
The Notes are not entitled to any sinking fund.
The Notes that are a component of Equity Security Units or
that so elect under Section 2.06 of the Supplemental Indenture will be subject
to remarketing and, in the case of the Last Failed Remarketing, the Collateral
Agent for the benefit of the Company reserves all of its rights as a secured
party of the Pledged Notes with respect thereto and, subject to applicable law
and Section 5.4 of the Purchase Contract Agreement, may, among other things,
permit the Company to cause the Notes to be sold or to retain and cancel such
Notes, in either case, in full satisfaction of the Holders' obligations under
the Purchase Contracts.
If an Event of Default with respect to the Notes shall occur
and be continuing, the principal of the Notes may be declared due and payable 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 of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series to be affected (voting as one
class). The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Outstanding Securities of all
affected series (voting as one class), on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture. The Indenture permits, with certain exceptions as
therein provided, the Holders of a majority in aggregate principal amount of
Securities of any series then Outstanding to waive past defaults under the
Indenture with respect to such series and their consequences. Any such consent
or waiver by the Holder of this Security shall be conclusive and binding upon
such Holder and upon all future Holders of this Security and of any Security
A-6
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
the Securities of this series at the time Outstanding a direction inconsistent
with such request, and shall have failed to institute any such proceeding, for
60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or interest hereon on or
after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which are
absolute and unconditional, to pay the principal of, and premium, if any, and
interest on this Note at the times, place(s) and rates, and in the coin or
currency, herein prescribed.
[The holders of beneficial interests in this Global Security
will not be entitled to receive physical delivery of Definitive Securities
except as described in the Indenture and will not be considered the Holders
hereof for any purpose under the Indenture.]*
As provided in the Indenture and subject to certain
limitations set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of transfer
at the office or agency of the Company in the Borough of Manhattan, The City of
New York, or at such other offices or agencies as the Company may designate,
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 Securities of this series and of like tenor, of authorized
denominations and for a like aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes are issuable only in registered forms without
coupons, in minimum denominations of $50 or any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
the Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax or other similar governmental charge payable in
connection therewith.
A-7
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
No recourse under or upon any obligation, covenant or
agreement of or contained in the Indenture or of or contained in any Security,
or for any claim based thereon or otherwise in respect thereof, or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor Person, either
directly or through the Company or any successor Person, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment, penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released by the acceptance hereof and
as a condition of, and as part of the consideration for, the Securities and the
execution of the Indenture.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
All terms used in this Note (and not otherwise defined in this
Note) but not defined herein shall have the meanings assigned to them in the
Indenture, the Purchase Contract Agreement, the Remarketing Agreement or the
Pledge Agreement, as the case may be and as the context may require.
A-8
[FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
------------------------------------------------------------
(Please Print or Typewrite Name and Address of Assignee)
the within instrument of EL PASO CORPORATION and does hereby irrevocably
constitute and appoint ________________________ Attorney to transfer said
instrument on the books of the within-named Company, with full power of
substitution in the premises.
Please Insert Social Security or
Other Identifying Number of Assignee:
-------------------------------------------- --------------------------------------------
Dated:
------------------------------------ --------------------------------------------
(Signature)
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.]**
A-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES AND PLEDGED NOTES]
SCHEDULE OF INCREASES OR DECREASES
The following increases or decreases in this [Global Certificate]
[Pledged Note] have been made:
Principal amount of
Amount of decrease Amount of increase in Senior Notes
in principal amount principal amount of evidenced by the
of Senior Notes Senior Notes [Global Certificate] Signature of
evidenced by the evidenced by the [Pledged Note] authorized officer
[Global Certificate] [Global Certificate] following such of Trustee or
Date [Pledged Note] [Pledged Note] decrease or increase Collateral Agent
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* Insert in Global Notes only.
** Insert in Certificated Notes only.
A-10
