RECITALS OF THE COMPANY
EXHIBIT
4.A
SECOND
SUPPLEMENTAL
INDENTURE, DATED AS OF APRIL 4, 2007 (HEREIN CALLED THE “SECOND
SUPPLEMENTAL INDENTURE”),
BETWEEN EL PASO
NATURAL GAS COMPANY, A DELAWARE CORPORATION (HEREIN CALLED THE “COMPANY”),
HAVING ITS
PRINCIPAL OFFICE AT ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ AND WILMINGTON
TRUST COMPANY, A DELAWARE BANKING CORPORATION, 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 (as successor
in
interest to JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank))
the Indenture, dated as of November 13, 1996 (such Indenture as amended and
supplemented through the date hereof by the First Supplemental Indenture thereto
dated as of June 10, 2002 being 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; and
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; and
WHEREAS,
the
Company desires to create a series of the Securities in an aggregate principal
amount of $355,000,000, which series shall be designated the 5.95% Senior Notes
Due 2017 (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 Second 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 Second 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 SECOND 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
1
Definitions
Section
1.01 .
Defined
Terms; Vote and Consent. For
purposes
hereof, capitalized terms used herein and not otherwise defined herein or in
the
recitals shall have the meanings assigned to such terms in the Original
Indenture. For
all purposes of
this Second Supplemental Indenture and the Original Indenture, as amended by
this Second Supplemental Indenture, the term “Notes”
shall
include the
Initial 2017 Notes (as defined below) and any Exchange Notes (as defined below)
to be issued and exchanged for any Initial 2017 Notes pursuant to the
Registration Rights Agreement (as defined below) and this Second Supplemental
Indenture. For purposes of the Original Indenture, as amended by this Second
Supplemental Indenture, all Initial 2017 Notes and Exchange Notes shall vote
and
consent together as one series of Securities and shall not have the right to
vote and consent as a series separate from one another on any matter under
the
Original Indenture, as so amended by this Second Supplemental
Indenture.
Section
1.02 .
Definitions.
The
following terms
have the meanings given to them in this Section
1.02:
“Additional
Interest”
shall
have the
meaning assigned to that term in Section 2.03.
“Distribution
Compliance Period”
shall
have the
meaning assigned to that term in Section 3.04(a).
“Exchange
Notes”
means
any
securities issued by the Company (pursuant to the Exchange Offer or otherwise)
to be offered to Holders of Initial 2017 Notes in exchange for such Initial
2017
Notes pursuant to the Exchange Offer and containing terms identical in all
material respects to the Initial 2017 Notes for which they are exchanged except
that (i) interest thereon shall accrue from the last date on which interest
was
paid on the Initial 2017 Notes or, if no such interest has been paid, from
the
date of issuance of the Initial 2017 Notes, (ii) the Exchange Notes will not
contain the legend appearing on the face of the Initial 2017 Notes in the form
recited in this Second Supplemental Indenture and will not contain terms with
respect to transfer restrictions and (iii) the Exchange Notes will not contain
terms with respect to the payment of Additional Interest for failure to comply
with the Registration Rights Agreement.
“Closing
Date”
means
April 4,
2007.
“Exchange
Offer”
means
the
exchange offer by the Company of Exchange Notes for Initial 2017 Notes pursuant
to the Registration Rights Agreement.
“Global
Security”
shall
have the
meaning set forth in Section 2.02.
“Initial
2017 Notes”
means
the Notes
issued under this Second Supplemental Indenture which are not Exchange
Notes.
“QIB”
means
a
“qualified institutional buyer” as defined in Rule 144A.
“Registration”
means
a
registered exchange offer for the Notes by the Company or other registration
of
the Notes under the Securities Act pursuant to and in accordance with the terms
of the Registration Rights Agreement.
“Registration
Default”
shall
have the
meaning set forth in Section 2.03.
“Registration
Rights Agreement”
means
the
Registration Rights Agreement, dated as of April 4, 2007 between the Company,
Deutsche Bank Securities Inc. and Citigroup Global Markets Inc., on behalf
of
the initial purchasers of the Notes.
“Regulation
S”
means
Regulation
S under the Securities Act.
“Regulation
S Global Security”
shall
have the
meaning set forth in Section 2.02.
“Restricted
Legend”
means
the legend
initially set forth on the Notes in the form set forth in Section 3.02
hereof.
“Restricted
Security”
shall
have the
meaning set forth in Section 3.02(b).
“Rule
144A”
means
Rule 144A
under the Securities Act.
“Rule
144A
Global Security”
shall
have the
meaning set forth in Section 2.02.
“Securities
Act”
shall
have the
meaning set forth in Section 3.02(b)(1).
ARTICLE
2
Terms
and Issuance
of 5.95% Senior Notes Due 2017
Section
2.01 .
Issue of
Notes. A
series of
Securities which shall be designated the “5.95% Senior Notes due 2017” shall be
executed, authenticated and delivered in accordance with the provisions of,
and
shall in all respects be subject to, the terms, conditions and covenants of
the
Original Indenture, including without limitation the terms set forth in this
Second Supplemental Indenture (including the form of Notes referred to in
Section
2.02
hereof). The aggregate principal amount of Notes which may be authenticated
and
delivered shall be $355,000,000 (subject to Notes authenticated and delivered
as
provided in Section 2.04 of this Second Supplemental Indenture or upon
registration of transfer of, or in exchange for, or in lieu of, other Notes
of
this series pursuant to Section 304, 305, 306, 906 or 1107 under the Original
Indenture). The entire amount of Notes may forthwith be executed by the Company
and delivered to the Trustee and shall be authenticated by the Trustee and
delivered to or upon the order of the Company pursuant to Section 303 of the
Original Indenture.
Section
2.02 .
Forms of
Notes and Authentication Certificate. Notes
offered and
sold to QIBs in reliance on Rule 144A under the Securities Act will be issued
in
the form of one or more registered notes in global form without interest coupons
(the "Rule
144A
Global Securities"),
and Notes
offered and sold in offshore transactions to non-U.S. persons in reliance on
Regulation S under the Securities Act, will be issued in the form of one or
more
registered notes in global form without interest coupons (the "Regulation
S Global Securities"),
in each case
pursuant to Section 204 of the Original Indenture (each, a "Global
Security"),
with the Global
Securities legend and, if applicable, the restricted securities legend set
forth
in Section 3.02 hereof and registered in the name of the Depositary or its
nominee. The Depository Trust Company shall be the Depositary for such Global
Securities. The forms and terms of the Notes and the Trustee’s certificate of
authentication shall be substantially as set forth on Exhibit A
hereto.
The terms and
provisions contained in the form of Notes set forth in Exhibit A shall
constitute, and are hereby expressly made, a part of the Original Indenture
as
supplemented by this Second Supplemental Indenture.
Section
2.03 .
Registration
Default.
In the event that
a Registration Default (as defined in the Registration Rights Agreement) occurs,
the Company shall pay additional interest (in addition to the interest otherwise
due) (“Additional
Interest”)
to the Holder
during the first 90-day period immediately following the occurrence of any
such
Registration Default in an amount equal to 0.25% per annum (regardless of the
number of Registration Defaults), increasing by 0.25% per annum with respect
to
each subsequent 90-day period, up to a maximum of 1.00% per annum, from and
including the date on which any such Registration Default shall occur (subject
to the terms of the Registration Rights Agreement) to but excluding the earlier
of (1) the date on which all such Registration Defaults have been cured or
(2)
the date on which all the Notes otherwise become freely transferable by Holders
other than affiliates of the Company without further registration under the
Securities Act. The Company shall pay amounts due in respect of Additional
Interest on each Interest Payment Date (or, if the Company shall default in
the
payment of interest on any Interest Payment Date, on the date such interest
is
otherwise paid as provided in the Original Indenture).
Section
2.04 .
Additional
Notes.
This series of
Notes may be reopened, without the consent of the Holders thereof, for increases
in the aggregate principal amount of the Notes and issuance of additional Notes
of this series ranking equally with these Notes in all respects, so that such
additional Notes shall be consolidated and form a single series with these
Notes
and shall have the same terms as to status, redemption or otherwise as these
Notes, provided,
however,
that no Event of
Default has occurred or is continuing with respect to such Notes.
ARTICLE
3
Transfer
and
Exchange
Section
3.01 .
Transfer
and
Exchange of Global Securities.
(a) The transfer
and exchange of Global Securities or beneficial interests therein shall be
effected through the Depositary, in accordance with this Second Supplemental
Indenture (including applicable restrictions on transfer set forth herein,
if
any) and the procedures of the Depositary therefor. A transferor of a beneficial
interest in a Global Security shall deliver to the Security Registrar a written
order given in accordance with the Depositary's procedures containing
information regarding the participant account of the Depositary to be credited
with a beneficial interest in the Global Security. The Security Registrar shall,
in accordance with such instructions, instruct the Depositary to credit to
the
account of the Person specified in such instructions a beneficial interest
in
the Global Security and to debit the account of the Person making the transfer
the beneficial interest in the Global Security being transferred.
Each
Holder of a
Security agrees to indemnify the Company and the Trustee against any liability
that may result from the transfer, exchange or assignment of such Holder's
Security in violation of any provision of the Indenture and/or applicable United
States federal or state securities law.
Section
3.02 .
Legends.
(a) Each Global
Security shall bear the following legend on the face thereof:
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 IN AS MUCH
AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
(b)
Except as
otherwise provided in Section 3.03, each Global Security that is an Initial
2017
Note (each a “Restricted
Security”)
shall bear the
following legend (the “Restricted
Legend”)
on the face
thereof:
(1)
THIS SECURITY
(OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES
ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
(2)
THE HOLDER OF
THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY
MAY
BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED
STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (IV) PURSUANT
TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR (V) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3)
OR
(7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS ACQUIRING THE SECURITY
FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED
INVESTOR" FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, IN
EACH
OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF
ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN CLAUSE (A) ABOVE.
(3)
THE HOLDER
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST
HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND;
AND
(4)
THE HOLDER
AGREES THAT, BEFORE THE HOLDER OFFERS, SELLS OR OTHERWISE TRANSFERS THIS
SECURITY, EL PASO NATURAL GAS COMPANY MAY REQUIRE THE HOLDER OF THIS SECURITY
TO
DELIVER A WRITTEN OPINION, CERTIFICATIONS AND/OR OTHER INFORMATION THAT IT
REASONABLY REQUIRES TO CONFIRM THAT SUCH PROPOSED TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE UNITED
STATES.
AS
USED IN THIS
SECURITY, THE TERMS "OFFSHORE TRANSACTION," "U.S. PERSON" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES
ACT.
Section
3.03 .
Removal
of
Restricted Legend.
(i) If the
Company determines (upon the advice of counsel and such other certifications
and
evidence as the Company may reasonably require) that any Note is eligible for
resale pursuant to Rule 144(k) under the Securities Act (or a successor
provision) and that the Restricted Legend is no longer necessary or appropriate
in order to ensure that subsequent transfers of such Note (or a beneficial
interest therein) are effected in compliance with the Securities Act, or (ii)
(x) after an Initial 2017 Note is sold pursuant to an effective Registration,
pursuant to the Registration Rights Agreement (if applicable) or otherwise,
or
(y) after an Initial 2017 Note is exchanged for an Exchange Note, the Company
may instruct the Trustee to cancel such Note and issue to the Holder thereof
(or
to its transferee) a new Note of like tenor and amount, registered in the name
of the Holder thereof (or its transferee), that does not bear the Restricted
Legend, and the Trustee will comply with such instruction.
Section
3.04 .
Registration
of
Transfer or Exchange.
The registration
of transfer or exchange of any Note (or a beneficial interest therein) that
bears the Restricted Legend may only be made in compliance with the provisions
of the Restricted Legend and as set forth below.
(a)
Prior to the
40th day after the later of the commencement of the offering of the Notes and
the Closing Date (such period through and including such 40th day, the
“Distribution
Compliance Period”),
transfers by an
owner of a beneficial interest in a Regulation S Global Security to a transferee
who takes delivery of such interest through a Rule 144A Global Security of
that
series will be made only upon receipt by the Trustee of a written certification
from the transferor of the beneficial interest to the effect that such transfer
is being made to a Person whom the transferor reasonably believes is a QIB
in a
transaction meeting the requirements of Rule 144A.
(b)
Transfers by an
owner of a beneficial interest in the Rule 144A Global Security to a transferee
who takes delivery through the Regulation S Global Security of that series,
whether before or after the expiration of the Distribution Compliance Period,
will be made only upon receipt by the Trustee of a certification from the
transferor to the effect that such transfer is being made in accordance with
Regulation S or Rule 144 under the Securities Act and that, if such transfer
is
being made prior to the expiration of the restricted period, the interest
transferred will be held immediately thereafter through Euroclear or Clearstream
Luxembourg.
(c)
Any beneficial
interest in one of the Global Securities that is transferred to a Person who
takes delivery in the form of an interest in another Global Security of that
series will, upon transfer, cease to be an interest in the initial Global
Security of that series and will become an interest in the other Global Security
of that series and, accordingly, will thereafter be subject to all transfer
restrictions, if any, and other procedures applicable to beneficial interests
in
such other Global Security of that series for as long as it remains such an
interest.
Section
3.05 .
Preservation
of Information. The
Trustee will
retain copies of all certificates, opinions and other documents received in
connection with the registration of transfer or exchange of a Note (or a
beneficial interest therein) in accordance with its customary policy, and the
Company will have the right to inspect and make copies thereof at any reasonable
time upon written notice to the Trustee.
Section
3.06 .
Acknowledgment of Restrictions; Indemnification; No Obligation of Trustee.
By
its acceptance
of any Note bearing the Restricted Legend, each Holder of such a Note
acknowledges the restrictions on registrations of transfer of such Note set
forth in this Second Supplemental Indenture and in the Restricted Legend and
agrees that it will register the transfer of such Note only as provided in
this
Second Supplemental Indenture. The Security Registrar shall not register a
transfer of any Note unless such transfer complies with the restrictions on
transfer of such Note set forth in this Second Supplemental Indenture. In
connection with any registration of transfer of Notes, each Holder agrees by
its
acceptance of the Notes to furnish the Security Registrar or the Company such
certifications, legal opinions or other information as either of them may
reasonably require to confirm that such registration of transfer is being made
pursuant to an exemption from, or a transaction not subject to, the registration
requirements of the Securities Act; provided that the Security Registrar shall
not be required to determine (but may rely on a determination made by the
Company with respect to) the sufficiency of any such certifications, legal
opinions or other information.
The
Security
Registrar shall retain copies of all letters, notices and other written
communications received pursuant to the Indenture in accordance with its
customary policy. The Company shall have the right to inspect and make copies
of
all such letters, notices or other written communications at any reasonable
time
upon the giving of reasonable written notice to the Security
Registrar.
Each
Holder of a
Note agrees to indemnify the Company and the Trustee against any liability
that
may result from the registration of transfer, exchange or assignment of such
Holder’s Note in violation of any provision of this Second Supplemental
Indenture and/or applicable United States Federal or state securities
law.
The
Trustee shall
have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Second Supplemental
Indenture or under applicable law with respect to any registrations of transfer
of any interest in any Note (including any transfers between or among members
of, or participants in, the Depositary or beneficial owners of interests in
any
Global Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when
expressly required by the terms of, this Second Supplemental Indenture, and
to
examine the same to determine substantial compliance as to form with the express
requirements hereof.
ARTICLE
4
Miscellaneous
Section
4.01 .
Execution as
Supplemental Indenture. This
Second
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this Second 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.
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 Second 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 Second Supplemental Indenture
contained by the Company shall bind its successors and assigns whether so
expressed or not.
Section
4.04 .
New York
Contract. THIS
SECOND
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
Counterpart. This
Second
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.
IN
WITNESS WHEREOF, El Paso Natural Gas Company has caused this Second 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 Wilmington Trust Company has
caused this Second Supplemental Indenture to be executed in its corporate name
by one of its authorized representatives as of April 4, 2007.
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By:
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Name:
▇▇▇▇
▇.
▇▇▇▇▇▇
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Title:
Vice
President and Secretary
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WILMINGTON
TRUST COMPANY
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
Senior Financial Services Officer
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EXHIBIT
A
[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 IN AS MUCH
AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]1
[THIS
SECURITY (OR
ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND
THIS
SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS
SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING
ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY
RULE 144A THEREUNDER.
THE
HOLDER OF THIS
SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(III)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED
BY
RULE 144 THEREUNDER (IF AVAILABLE), (IV) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (V) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7), OF REGULATION D
UNDER
THE SECURITIES ACT) THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR
FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR" FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH
(V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN CLAUSE (A) ABOVE.
THE
HOLDER AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THE
HOLDER AGREES
THAT, BEFORE THE HOLDER OFFERS, SELLS OR OTHERWISE TRANSFERS THIS SECURITY,
EL
PASO NATURAL GAS COMPANY MAY REQUIRE THE HOLDER OF THIS SECURITY TO DELIVER
A
WRITTEN OPINION, CERTIFICATIONS AND/OR OTHER INFORMATION THAT IT REASONABLY
REQUIRES TO CONFIRM THAT SUCH PROPOSED TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS
USED IN THIS SECURITY, THE TERMS “OFFSHORE TRANSACTION,” “U.S. PERSON” AND
“UNITED STATES” HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S
UNDER THE SECURITIES ACT.]2
5.95%
SENIOR NOTES DUE 2017
NO.
U.S.$
CUSIP
No.
EL
PASO NATURAL GAS COMPANY, a corporation duly incorporated and existing under
the
laws of Delaware (herein called the “Company,”
which
term
includes any successor Person under the Indenture hereinafter referred to),
for
value received, hereby promises to pay to CEDE & CO., or registered assigns,
the principal sum of [THREE HUNDRED AND FIFTY FIVE MILLION] United States
Dollars on April 15, 2017, and to pay interest thereon from April 4, 2007,
or
from the most recent Interest Payment Date to which interest has been paid
or
duly provided for, semi-annually on April 15 and October 15 in each year,
commencing October 15, 2007 (each, an “Interest
Payment Date”),
at the rate of
5.95% per annum, until the principal hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly provided for,
on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities)
is
registered at the close of business on the regular record date for such
interest, which shall be the April 1 or October 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date (each,
a
“Regular
Record Date”).
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 either be paid
to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a special record date for the payment
of such Defaulted Interest to be fixed by the Trustee (a “Special
Record Date”),
notice of which
shall be given to Holders of Securities of this series not less than 10 days
prior to such Special Record Date, or be paid at such time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such notice as
may
be required by such exchange, all as more fully provided in such
Indenture.
[In
the event that
a Registration Default (as defined in the Registration Rights Agreement) occurs,
the Company shall pay additional interest (in addition to the interest otherwise
due hereon) (“Additional
Interest”)
to the Holder
during the first 90-day period immediately following the occurrence of any
such
Registration Default in an amount equal to 0.25% per annum (regardless of the
number of Registration Defaults), increasing by 0.25% per annum with respect
to
each subsequent 90-day period, up to a maximum of 1.00% per annum, from and
including the date on which any such Registration Default shall occur (subject
to the terms of the Registration Rights Agreement) to but excluding the earlier
of (1) the date on which all such Registration Defaults have been cured or
(2)
the date on which all the Notes otherwise become freely transferable by Holders
other than affiliates of the Company without further registration under the
Securities Act. The Company shall pay amounts due in respect of Additional
Interest on each Interest Payment Date (or, if the Company shall default in
the
payment of interest on any Interest Payment Date, on the date such interest
is
otherwise paid as provided in the Indenture).]3
[Payment
of the
principal of and premium, if any, and interest on this Security will be made
by
transfer of immediately available funds to a bank account in New York, New
York
designated by the Holder 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.]4
[Payment
of the
principal of (and premium, if any) and interest on this Security will be made
at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan, The City of New York, 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, or at such other offices or agencies as the Company
may designate; provided,
however,
that payment of
interest may be made at the option of the Company by check mailed to the
addresses of the Persons entitled thereto as such addresses shall appear in
the
Security Register.]5
Reference
is hereby
made to the further provisions of this Security set forth on the reverse hereof,
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 on the reverse hereof by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
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By:
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Name:
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Title:
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This
is one of the
Securities of the series designated therein referred to in the within-mentioned
Indenture.
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WILMINGTON
TRUST COMPANY,
AS
TRUSTEE
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By:
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Name:
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Title:
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5.95%
SENIOR NOTES DUE 2017
This
Security 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 November 13,
1996, as amended and supplemented (the “Indenture”),
between the
Company and Wilmington Trust Company, a Delaware banking corporation (as
successor in interest to JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank)), as Trustee (the “Trustee,”
which
term
includes any successor trustee under the Indenture), to which Indenture and
all
indentures supplemental thereto reference is hereby made for a statement of
the
respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and
of
the terms upon which the Securities are, and are to be, authenticated and
delivered. As provided in the Indenture, the Securities may be issued in one
or
more series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest, if any, at different
rates, may be subject to different redemption provisions, if any, may be subject
to different sinking, purchase or analogous funds, if any, may be subject to
different covenants and Events of Default and may otherwise vary as in the
Indenture provided or permitted. This Security is one of a series of Securities
designated on the face hereof limited in aggregate principal amount to U.S.
$355,000,000 (subject to Securities authenticated and delivered as provided
in
the following paragraph or upon registration of transfer of, or in exchange
for,
or in lieu of, other Securities of this series pursuant to Section 304, 305,
306, 906 or 1107 under the Indenture).
This
series of
Securities may be reopened, without the consent of the Holders thereof, for
increases in the aggregate principal amount of the Securities and issuance
of
additional Securities of this series ranking equally with these Securities
in
all respects, so that such additional Securities shall be consolidated and
form
a single series with these Securities and shall have the same terms as to
status, redemption or otherwise as these Securities, provided,
however,
that no Event of
Default has occurred or is continuing with respect to such
Securities.
The
Securities of
this series are redeemable, upon not less than 30 nor more than 60 days’ notice
by mail, as a whole or in part, at the option of the Company at any time at
a
Redemption Price equal to the greater of (i) 100% of the principal amount
thereof and (ii) an amount equal to, as determined by an Independent Investment
Banker, the sum of the present values of the remaining scheduled payments of
principal and interest thereon (not including any portion of such payments
of
interest accrued as of the Redemption Date) discounted back to the Redemption
Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 0.25%, plus, in each case, accrued and unpaid
interest thereon to the date of redemption, but interest installments whose
stated maturity is on or prior to such date of redemption will be payable to
the
Holders of such Securities, or one or more Predecessor Securities, of record
at
the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.
“Comparable
Treasury Issue”
means
the United
States Treasury security selected by an Independent Investment Banker that
(i)
has a maturity comparable to the remaining term of the Securities of this series
to be redeemed and (ii) would be used, at the time of selection and in
accordance with customary financial practice, to price new issues of corporate
debt securities of comparable maturity to the remaining term of such
Securities.
“Comparable
Treasury Price”
means,
with
respect to any Redemption Date, (i) the average of four Reference Treasury
Dealer Quotations for such Redemption Date, after excluding the highest and
lowest of such Reference Treasury Dealer Quotations, or (ii) if the Trustee
obtains fewer than four such Reference Treasury Dealer Quotations, the average
of all such Reference Treasury Dealer Quotations.
“Independent
Investment Banker”
means
any of
Deutsche Bank Securities Inc., Citigroup Global Markets Inc. and their
respective successors, or, if any such firm or their successors, if any, as
the
case may be, are unwilling or unable to select the Comparable Treasury Issue,
an
independent investment banking institution of national standing appointed by
the
Trustee after consultation with the Company.
“Reference
Treasury Dealer”
means
Deutsche
Bank
Securities Inc., Citigroup Global Markets Inc., and two additional primary
U.S.
government securities dealer in New York City selected by the Trustee after
consultation with the Company, and their respective successors (provided,
however, that if any such firm or any such successor shall cease to be a primary
U.S. government securities dealer in New York City, the Trustee, after
consultation with the Company, shall substitute therefor another
dealer).
“Reference
Treasury Dealer Quotations”
means,
with
respect to each Reference Treasury Dealer and any Redemption Date, the average,
as determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00
p.m.
on the third Business Day preceding such Redemption Date.
“Treasury
Rate”
means,
with
respect to any Redemption Date, (1) the yield, under the heading which
represents the average for the immediately preceding week, appearing in the
most
recently published statistical release designated “H.15(519)” or any successor
publication that is published weekly by the Board of Governors of the Federal
Reserve System and that establishes yields on actively traded United States
Treasury securities adjusted to constant maturity under the caption “Treasury
Constant Maturities,” for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the stated
maturity, yields for the two published maturities most closely corresponding
to
the Comparable Treasury Issue shall be determined, and the Treasury Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding to the nearest month) or (2) if the release (or any successor release)
is not published during the week preceding the calculation date or does not
contain such yields, the rate per annum equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue, calculated using a price
for
the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such redemption date. The
Treasury Rate will be calculated on the third Business Day preceding the
Redemption Date.
Notwithstanding
Section 1104 of the Indenture, the notice of redemption with respect to the
foregoing redemption need not set forth the Redemption Price but only the manner
of calculation thereof. Promptly after the calculation thereof, the Company
shall give the Trustee written notice of the Redemption Price for the foregoing
redemption.
In
the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
and otherwise having the same terms as the Security partially redeemed will
be
issued in the name of the Holder hereof upon the presentation and surrender
hereof.
The
Securities of
this series shall be subject to defeasance at the option of the Company in
accordance with the provisions of Sections 1302 and 1303 of the Indenture.
If
an Event of Default with respect to the Securities of this series shall occur
and be continuing, the principal of the Securities of this series 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 Holders of this Security shall
be conclusive and binding upon such Holders and upon all future Holders of
this
Security and of any Security 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 Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of, premium, if any, and interest on
this Security at the times, place(s) and rate, and in the coin or currency,
herein prescribed.
[This
Global
Security or portion hereof may not be exchanged for Securities in definitive
registered form except in the limited circumstances provided in the
Indenture.
The
Holders of
beneficial interests in this Global Security will not be entitled to receive
physical delivery of Securities in definitive registered form except as
described in the Indenture and will not be considered the Holders hereof for
any
purpose under the Indenture.]6
[As
provided in the
Indenture and subject to certain limitations set forth, the transfer of this
Security is registerable 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.]7
The
Securities of
this series are issuable only in registered form, without coupons, in
denominations of U.S. $2,000 or integral multiples of $1,000 in excess 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.
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.
The
Indenture
provides that the Company (a) will be discharged from any and all obligations
in
respect of the Securities (except for certain obligations described in the
Indenture), or (b) need not comply with certain restrictive covenants of the
Indenture, in each case if the Company deposits, in trust, with the Trustee
money or U.S. Government Obligations (or a combination thereof) which through
the payment of interest thereon and principal thereof in accordance with their
terms will provide money, in an amount sufficient to pay all the principal
of
and premium, if any, and interest on the Securities, but such money need not
be
segregated from other funds except to the extent required by law.
THIS
SECURITY SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
All
terms used in
this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
[FORM
OF TRANSFER
NOTICE]
FOR
VALUE RECEIVED
the undersigned registered holder hereby sell(s), assign(s) and transfer(s)
unto
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Insert
Taxpayer Identification No.
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Please
print
or typewrite name and address including zip code of assignee
|
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the
within
Security and all rights thereunder, hereby irrevocably constituting
and
appointing
|
attorney
to
transfer said Security on the books of the Company with full power of
substitution in the premises.
Date:
_______________
Signature:
____________________________________________
SCHEDULE
OF
EXCHANGES OF SECURITY
The
following
increases or decreases in this Global Security have been made:
|
Date
of Exchange
|
Amount
of decrease
in
principal amount
of
this Global Security
|
Amount
of increase
in
principal amount
of
this Global Security
|
Principal
amount of
this
Global Security
following
such
decrease
(or
increase)
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Signature
of
authorized
officer of
Trustee
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1
Insert in Global
Securities only.
2
Insert in
Restricted Securities only.
3
Insert in
Restricted Securities only.
4
Insert in Global
Securities only.
5
Insert in
Definitive Securities only.
6
Insert in Global
Securities only.
7
Insert in
Definitive Securities only.