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EXHIBIT 2.7
TRUST CONVERTIBLE PREFERRED SECURITIES
GUARANTEE AGREEMENT
EL PASO ENERGY CAPITAL TRUST I
DATED AS OF ________________, 1998
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.2 Lists of Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.3 Reports by the Trust Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.4 Periodic Reports to Trust Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.5 Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.6 Guarantee Events of Default; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.7 Guarantee Event of Default; Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.8 Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Trust Preferred Guarantee Trustee . . . . . . . . . . . . . . . . 11
SECTION 3.2 Certain Rights of Trust Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.3 Not Responsible for Recitals or Issuance of Trust
Preferred Securities Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE IV
TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Trust Preferred Guarantee Trustee; Eligibility . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.2 Appointment, Removal and Resignation of Trust
Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.2 Waiver of Notice and Demand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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SECTION 5.3 Obligations Not Affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.4 Rights of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.5 Guarantee of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.6 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.7 Independent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6.2 Ranking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VII
TERMINATION
SECTION 7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VIII
CERTAIN COVENANTS
SECTION 8.1 Payment of Additional Sums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 8.2 Continued Ownership of Trust Common Securities, Etc. . . . . . . . . . . . . . . . . . . . 21
ARTICLE IX
INDEMNIFICATION, ETC.
SECTION 9.1 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 9.2 Fees, Expenses and Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 10.2 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 10.3 Holding Company Formation, Consolidations and Mergers . . . . . . . . . . . . . . . . . . . 23
SECTION 10.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 10.5 Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 10.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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EL PASO NATURAL GAS COMPANY
TRUST CONVERTIBLE PREFERRED SECURITIES
GUARANTEE AGREEMENT
This Trust Convertible Preferred Securities Guarantee
Agreement (the "Trust Preferred Securities Guarantee"), dated as of
________________, 1998, is executed and delivered by El Paso Natural Gas
Company, a Delaware corporation (the "Guarantor"), and The Chase Manhattan
Bank, a New York banking corporation, as trustee (the "Trust Preferred
Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Trust Preferred Securities (as defined herein) of El Paso
Energy Capital Trust I, a Delaware statutory business trust (the "Issuer").
R E C I T A L S:
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of ________________, 1998, among the
trustees of the Issuer named therein, El Paso Natural Gas Company, as sponsor,
and the holders from time to time of undivided beneficial interests in the
assets of the Issuer, the Issuer is issuing on the date hereof 6,000,000 Trust
Convertible Preferred Securities, having an aggregate Liquidation Amount of
$300,000,000, designated the ____% Trust Convertible Preferred Securities,
which amounts exclude 900,000 ____% Trust Convertible Preferred Securities
having an aggregate Liquidation Amount of $45,000,000 that are subject to
purchase pursuant to an underwriters' over-allotment option (all _____% Trust
Convertible Preferred Securities issued by the Issuer, including any issued in
connection with such over-allotment option, are referred to herein collectively
as the "Trust Preferred Securities"); and
WHEREAS, as an incentive for the Holders to purchase the Trust
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Trust Preferred Securities Guarantee, to
pay to the Holders of the Trust Preferred Securities the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Trust Common Securities Guarantee"), with
substantially identical terms to this Trust Preferred Securities Guarantee for
the benefit of the holders of the Trust Common Securities (as defined herein),
except that if the Guarantor is in default on any of its obligations under the
Trust Preferred Securities Guarantee or the Subordinated Indenture, the rights
of holders of the Trust Common Securities to receive "Guarantee Payments" (as
such term is defined in the Trust Common Securities Guarantee) under the Trust
Common Securities Guarantee are subordinated, to the extent and in the manner
set forth in the Trust Common Securities Guarantee, to the rights of Holders of
Trust Preferred Securities to receive Guarantee Payments under this Trust
Preferred Securities Guarantee;
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NOW, THEREFORE, in consideration of the purchase by each
Holder of Trust Preferred Securities, which purchase the Guarantor hereby
acknowledges shall benefit the Guarantor, the Guarantor executes and delivers
this Trust Preferred Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Trust Preferred Securities Guarantee, unless the
context otherwise requires:
(a) Capitalized terms used in this Trust Preferred Securities
Guarantee but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) Capitalized terms used in this Trust Preferred Securities
Guarantee but not otherwise defined herein shall have the meanings assigned to
them in the Declaration or the Subordinated Indenture, as the case may be;
(c) A term defined anywhere in this Trust Preferred Securities
Guarantee has the same meaning throughout;
(d) All references to "the Trust Preferred Securities Guarantee"
or "this Trust Preferred Securities Guarantee" are to this Trust Preferred
Securities Guarantee as modified, supplemented or amended from time to time;
(e) All references to this Trust Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Trust Preferred
Securities Guarantee, unless otherwise specified;
(f) A term defined in the Trust Indenture Act has the same meaning
when used in this Trust Preferred Securities Guarantee, unless otherwise
defined in this Trust Preferred Securities Guarantee or unless the context
otherwise requires; and
(g) A reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
405 under the Securities Act of 1933, as amended, or any successor rule
thereunder; provided, however, that an Affiliate of the Guarantor shall not be
deemed to include the Issuer.
"Business Day" means any day other than a day on which banking
institutions in the City of New York are authorized or required by law or
executive order to close.
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"Corporate Trust Office" means the principal corporate trust
office of the Trust Preferred Guarantee Trustee in the Borough of Manhattan,
the City of New York, which office at the date hereof is located at ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Covered Person" means any Holder or beneficial owner of Trust
Preferred Securities.
"Guarantee Event of Default" means a default by the Guarantor
on any of its payment or other obligations under this Trust Preferred
Securities Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Trust Preferred
Securities, to the extent not paid or made by the Issuer: (i) any accumulated
and unpaid Distributions (as defined in the Declaration) that are required to
be paid on such Trust Preferred Securities, to the extent the Issuer has funds
legally available therefor at such time, (ii) the redemption price, including
all accumulated and unpaid Distributions to the date of redemption (the
"Redemption Price"), to the extent the Issuer has funds legally available
therefor at such time, with respect to any Trust Preferred Securities called
for redemption by the Issuer, and (iii) upon a voluntary or involuntary
termination, dissolution, winding up or liquidation of the Issuer (other than
in connection with the distribution of Subordinated Debentures to the Holders
in exchange for Trust Preferred Securities as provided in the Declaration or
the conversion or redemption of all of the Trust Preferred Securities), the
lesser of (a) the aggregate of the Liquidation Amount and all accumulated and
unpaid Distributions on the Trust Preferred Securities to the date of payment,
to the extent the Issuer has funds legally available therefor, and (b) the
amount of assets of the Issuer, after satisfaction of all liabilities,
remaining available for distribution to Holders in liquidation of the Issuer
(in either case, the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and
records of the Issuer of any Trust Preferred Securities; provided, however,
that, in determining whether holders of the requisite percentage of Trust
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not apply to Trust Preferred Securities beneficially
owned by the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Trust Preferred Guarantee
Trustee, any Affiliate of the Trust Preferred Guarantee Trustee, or any
officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Trust Preferred
Guarantee Trustee.
"Liquidation Amount" has the meaning assigned to such term in
the Declaration.
"Majority in Liquidation Amount of the Trust Preferred
Securities" means, except as provided by the Trust Indenture Act, a vote by
Holder(s) of Trust Preferred Securities, voting separately as a class, of more
than 50% of the aggregate Liquidation Amount of all Trust Preferred Securities.
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"Officers' Certificate" means, with respect to any Person (who
is not an individual), a certificate signed by the Chairman of the Board, the
President, a Vice President or the Treasurer, and by an Assistant Treasurer,
the Secretary or an Assistant Secretary of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Preferred Securities Guarantee (other than pursuant
to Section 314(a)(4) of the Trust Indenture Act) shall include:
(a) A statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definition relating
thereto;
(b) A brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) A statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) A statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Trust
Preferred Guarantee Trustee, the chairman or vice-chairman of the board of
directors, the chairman or vice-chairman of the executive committee of the
board of directors, the president, any vice president (whether or not
designated by a number or a word or words added before or after the title "vice
president"), the secretary, any assistant secretary the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any senior trust
officer, any trust officer or assistant trust officer, or any other officer of
the Trust Preferred Guarantee Trustee customarily performing functions similar
to those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Rights Agreement" means the Amended and Restated Shareholder
Rights Agreement dated July 23, 1997, between the Guarantor and the First
National Bank of Boston, as rights agent, or any successor to such Rights
Agreement.
"Senior Indebtedness" means any indebtedness of the Guarantor
for money borrowed, except for any such indebtedness that is by its terms
subordinated to or pari passu with the Subordinated Debentures.
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"Subordinated Indenture" means the Subordinated Indenture,
dated as of ________________, 1998, between the Company and The Chase Manhattan
Bank, as trustee, as supplemented by that certain First Supplemental Indenture,
dated as of ________________, 1998, as further amended or supplemented from
time to time.
"Successor Trust Preferred Guarantee Trustee" means a
successor Trust Preferred Guarantee Trustee possessing the qualifications to
act as Trust Preferred Guarantee Trustee under Section 4.1.
"Trust Common Securities" means the common securities
representing subordinated undivided beneficial interests in the assets of the
Issuer in accordance with the Declaration that are issued by the Issuer on the
Closing Date or Option Closing Date (as such terms are defined in the
Underwriting Agreement). All Trust Common Securities issued by the Trust are
deemed to have been issued as of the Closing Date.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trust Preferred Guarantee Trustee" means The Chase Manhattan
Bank, a New York banking corporation, until a Successor Trust Preferred
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Trust Preferred Securities Guarantee and thereafter means
each such Successor Trust Preferred Guarantee Trustee.
"Trust Preferred Securities" has the meaning assigned to such
term in the preamble of this Agreement. All Trust Preferred Securities issued
by the Trust are deemed to have been issued as of the Closing Date.
"Trust Securities" means the Trust Common Securities together
with the Trust Preferred Securities.
"Underwriting Agreement" means that certain Underwriting
Agreement, dated as of March ___, 1998, among the Sponsor, the Issuer and
the several underwriters named therein.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Trust Preferred Securities Guarantee is subject
to the provisions of the Trust Indenture Act that are required to be part of
this Trust Preferred Securities Guarantee and shall, to the extent applicable,
be governed by such provisions; and
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(b) If and to the extent that any provision of this Trust
Preferred Securities Guarantee limits, qualifies or conflicts with the duties
imposed by Section 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
SECTION 2.2 Lists of Holders of Securities
(a) The Trust Preferred Guarantee Trustee shall preserve
in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Holders of Trust Preferred
Securities. If the Trust Preferred Guarantee Trustee is not the Registrar
under the Declaration, the Guarantor shall furnish to the Trust Preferred
Guarantee Trustee semi-annually on or before June 15 and December 15 in each
year, and at such other times as the Trust Preferred Guarantee Trustee may
request in writing, a list, in such form and as of such date as the Trust
Preferred Guarantee Trustee may require, containing all the information in the
possession or control of the Registrar under the Declaration, the Guarantor or
any of its Paying Agents other than the Trust Preferred Guarantee Trustee as to
the names and addresses of Holders of Trust Preferred Securities.
(b) The Trust Preferred Guarantee Trustee shall comply
with its obligations under Sections 311(a), 311(b) and Section 312(b) of the
Trust Indenture Act.
SECTION 2.3 Reports by the Trust Preferred Guarantee Trustee
Within 60 days after May 15 of each calendar year, the Trust
Preferred Guarantee Trustee shall provide to the Holders of the Trust Preferred
Securities such reports as are required by Section 313(a) of the Trust
Indenture Act, if any, in the form and in the manner provided by Section 313 of
the Trust Indenture Act. The Trust Preferred Guarantee Trustee shall also
comply with the other requirements of Section 313 of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Trust Preferred Guarantee Trustee
The Guarantor shall provide to the Trust Preferred Guarantee
Trustee such documents, reports and information as required by Section 314 (if
any) and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act, provided that such compliance certificate shall
be delivered on or before 120 days after the end of each fiscal year of the
Guarantor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Trust Preferred Guarantee
Trustee such evidence of compliance with the conditions precedent, if any,
provided for in this Trust Preferred Securities Guarantee that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
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SECTION 2.6 Guarantee Events of Default; Waiver
The Holders of a Majority in Liquidation Amount of Trust
Preferred Securities may, by vote, on behalf of the Holders of all of the Trust
Preferred Securities, waive any past Guarantee Event of Default and its
consequences. Upon such waiver, any such Guarantee Event of Default shall
cease to exist, and any Guarantee Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Trust Preferred Securities
Guarantee, but no such waiver shall extend to any subsequent or other default
or Guarantee Event of Default or impair any right consequent thereon.
SECTION 2.7 Guarantee Event of Default; Notice
(a) The Trust Preferred Guarantee Trustee shall, within
90 days after the occurrence of a Guarantee Event of Default, transmit by mail,
first class postage prepaid, to the Holders of the Trust Preferred Securities,
notices of all Guarantee Events of Default actually known to a Responsible
Officer of the Trust Preferred Guarantee Trustee charged with the
administration of this Trust Preferred Securities Guarantee, unless such
defaults have been cured before the giving of such notice, provided, that,
except in the case of default in any Guarantee Payment, the Trust Preferred
Guarantee Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer of the Trust Preferred Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Trust Preferred Securities.
(b) The Trust Preferred Guarantee Trustee shall not be
deemed to have knowledge of any Guarantee Event of Default unless the Trust
Preferred Guarantee Trustee shall have received notice thereof from the
Guarantor or a Holder, or a Responsible Officer of the Trust Preferred
Guarantee Trustee charged with the administration of the Declaration shall have
obtained actual knowledge, of such Guarantee Event of Default.
SECTION 2.8 Conflicting Interests
The Declaration shall be deemed to be specifically described
in this Trust Preferred Securities Guarantee for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Trust Preferred Guarantee Trustee
(a) This Trust Preferred Securities Guarantee shall be
held by the Trust Preferred Guarantee Trustee for the benefit of the Holders of
the Trust Preferred Securities, and the Trust
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Preferred Guarantee Trustee shall not transfer this Trust Preferred Securities
Guarantee to any Person except a Holder of Trust Preferred Securities
exercising his or her rights pursuant to Section 5.4(b) or to a Successor Trust
Preferred Guarantee Trustee on acceptance by such Successor Trust Preferred
Guarantee Trustee of its appointment to act as Successor Trust Preferred
Guarantee Trustee. The right, title and interest of the Trust Preferred
Guarantee Trustee shall automatically vest in any Successor Trust Preferred
Guarantee Trustee, and such vesting and succession of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Trust Preferred Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a
Responsible Officer of the Trust Preferred Guarantee Trustee charged with the
administration of this Trust Preferred Securities Guarantee has occurred and is
continuing, the Trust Preferred Guarantee Trustee shall enforce this Trust
Preferred Securities Guarantee for the benefit of the Holders of the Trust
Preferred Securities.
(c) The Trust Preferred Guarantee Trustee, before the
occurrence of any Guarantee Event of Default and after the curing or waiver of
all Guarantee Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this Trust Preferred
Securities Guarantee, and no implied covenants shall be read into this Trust
Preferred Securities Guarantee against the Trust Preferred Guarantee Trustee.
In case a Guarantee Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6) and is actually known to a Responsible Officer
of the Trust Preferred Guarantee Trustee charged with the administration of
this Trust Preferred Securities Guarantee, the Trust Preferred Guarantee
Trustee shall exercise such of the rights and powers vested in it by this Trust
Preferred Securities Guarantee, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Trust Preferred Securities
Guarantee shall be construed to relieve the Trust Preferred Guarantee Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(i) Prior to the occurrence of any Guarantee
Event of Default and after the curing or waiving of all such Guarantee
Events of Default that may have occurred:
(A) The duties and obligations of the
Trust Preferred Guarantee Trustee shall be determined solely
by the express provisions of this Trust Preferred Securities
Guarantee, and the Trust Preferred Guarantee Trustee shall not
be liable except for the performance of such duties and
obligations as are specifically set forth in this Trust
Preferred Securities Guarantee, and no implied covenants or
obligations shall be read into this Trust Preferred Securities
Guarantee against the Trust Preferred Guarantee Trustee; and
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(B) In the absence of bad faith on the
part of the Trust Preferred Guarantee Trustee, the Trust
Preferred Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished
to the Trust Preferred Guarantee Trustee and conforming to the
requirements of this Trust Preferred Securities Guarantee; but
in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to
the Trust Preferred Guarantee Trustee, the Trust Preferred
Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of
this Trust Preferred Securities Guarantee;
(ii) The Trust Preferred Guarantee Trustee shall
not be liable for any error of judgment made in good faith by a
Responsible Officer of the Trust Preferred Guarantee Trustee, unless
it shall be proved that the Trust Preferred Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment
was made;
(iii) The Trust Preferred Guarantee Trustee shall
not be liable with respect to any action taken or omitted to be taken
by it in good faith in accordance with the direction of the Holders of
a Majority in Liquidation Amount of the Trust Preferred Securities
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trust Preferred Guarantee Trustee, or
exercising any trust or power conferred upon the Trust Preferred
Guarantee Trustee under this Trust Preferred Securities Guarantee; and
(iv) No provision of this Trust Preferred
Securities Guarantee shall require the Trust Preferred Guarantee
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Trust Preferred
Guarantee Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not assured to it under the
terms of this Trust Preferred Securities Guarantee or indemnity,
reasonably satisfactory to the Trust Preferred Guarantee Trustee,
against such risk or liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Trust Preferred Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Trust Preferred Guarantee Trustee may
conclusively rely, and shall be fully protected in acting or
refraining from acting, upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
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(ii) Any direction or act of the Guarantor
contemplated by this Trust Preferred Securities Guarantee shall be
sufficiently evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Trust
Preferred Securities Guarantee, the Trust Preferred Guarantee Trustee
shall deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Trust
Preferred Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the
Guarantor.
(iv) The Trust Preferred Guarantee Trustee shall
have no duty to see to any recording, filing or registration of any
instrument (or any rerecording, refiling or reregistration thereof).
(v) The Trust Preferred Guarantee Trustee may
consult with counsel of its selection, and the advice or opinion of
such counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion. Such counsel may be counsel to the Guarantor or
any of its Affiliates and may include any of its employees. The Trust
Preferred Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Preferred
Securities Guarantee from any court of competent jurisdiction.
(vi) The Trust Preferred Guarantee Trustee shall
be under no obligation to exercise any of the rights or powers vested
in it by this Trust Preferred Securities Guarantee at the request or
direction of any Holder, unless such Holder shall have provided to the
Trust Preferred Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Trust Preferred Guarantee Trustee,
against the costs, expenses (including attorneys' fees and expenses
and the expenses of the Trust Preferred Guarantee Trustee's agents,
nominees or custodians) and liabilities that might be incurred by it
in complying with such request or direction, including such reasonable
advances as may be requested by the Trust Preferred Guarantee Trustee;
provided that, nothing contained in this Section 3.2(a)(vi) shall be
taken to relieve the Trust Preferred Guarantee Trustee, upon the
occurrence of a Guarantee Event of Default, of its obligation to
exercise the rights and powers vested in it by this Trust Preferred
Securities Guarantee.
(vii) The Trust Preferred Guarantee Trustee shall
not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but
the Trust Preferred Guarantee Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it
may see fit.
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14
(viii) The Trust Preferred Guarantee Trustee may
execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, nominees,
custodians or attorneys, and the Trust Preferred Guarantee Trustee
shall not be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it hereunder.
(ix) Any action taken by the Trust Preferred
Guarantee Trustee or its agents hereunder shall bind the Holders of
the Trust Preferred Securities, and the signature of the Trust
Preferred Guarantee Trustee or its agents alone shall be sufficient
and effective to perform any such action. No third party shall be
required to inquire as to the authority of the Trust Preferred
Guarantee Trustee to so act or as to its compliance with any of the
terms and provisions of this Trust Preferred Securities Guarantee,
both of which shall be conclusively evidenced by the Trust Preferred
Guarantee Trustee or its agent taking such action.
(x) Whenever in the administration of this Trust
Preferred Securities Guarantee the Trust Preferred Guarantee Trustee
shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder,
the Trust Preferred Guarantee Trustee (i) may request instructions
from the Holders of a Majority in Liquidation Amount of the Trust
Preferred Securities, (ii) may refrain from enforcing such remedy or
right or taking such other action until such instructions are
received, and (iii) shall be fully protected in conclusively relying
on or acting in accordance with such instructions.
(xi) The Trust Preferred Guarantee Trustee shall
not be liable for any action taken, suffered, or omitted to be taken
by it in good faith, without negligence, and reasonably believed by it
to be authorized or within the discretion or rights or powers
conferred upon it by this Trust Preferred Securities Guarantee.
(b) No provision of this Trust Preferred Securities
Guarantee shall be deemed to impose any duty or obligation on the Trust
Preferred Guarantee Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it in any jurisdiction in
which it shall be illegal, or in which the Trust Preferred Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Trust Preferred
Guarantee Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Trust Preferred
Securities Guarantee
The recitals contained in this Trust Preferred Securities
Guarantee shall be taken as the statements of the Guarantor, and the Trust
Preferred Guarantee Trustee does not assume any responsibility for their
correctness. The Trust Preferred Guarantee Trustee makes no representation as
to the validity or sufficiency of this Trust Preferred Securities Guarantee.
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ARTICLE IV
TRUST PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Trust Preferred Guarantee Trustee; Eligibility
(a) There shall at all times be a Trust Preferred
Guarantee Trustee which shall:
(i) Not be an Affiliate of the Guarantor; and
(ii) Be a corporation organized and doing business
under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a corporation or
Person permitted by the Securities and Exchange Commission to act as
an institutional trustee under the Trust Indenture Act, authorized
under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars ($50,000,000),
and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority referred
to above, then, for the purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Trust Preferred Guarantee Trustee
shall cease to be eligible to so act under Section 4.1(a), the Trust Preferred
Guarantee Trustee shall immediately resign in the manner and with the effect
set out in Section 4.2(c).
(c) If the Trust Preferred Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Trust Preferred Guarantee Trustee and Guarantor shall
in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act, subject to the penultimate paragraph thereof.
SECTION 4.2 Appointment, Removal and Resignation of Trust Preferred
Guarantee Trustee
(a) Subject to Section 4.2(b), the Trust Preferred
Guarantee Trustee may be appointed or removed without cause at any time by the
Guarantor except during a Guarantee Event of Default. Upon the occurrence and
during the continuance of a Guarantee Event of Default, only the Holders of a
Majority in Liquidation Amount of the Trust Preferred Securities may appoint or
remove the Trust Preferred Guarantee Trustee.
(b) The Trust Preferred Guarantee Trustee shall not be
removed in accordance with Section 4.2(a) until a Successor Trust Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Trust Preferred Guarantee Trustee
and delivered to the Guarantor.
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(c) The Trust Preferred Guarantee Trustee shall hold
office until a Successor Trust Preferred Guarantee Trustee shall have been
appointed or until its removal or resignation. The Trust Preferred Guarantee
Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Trust Preferred
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Trust Preferred Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed
by such Successor Trust Preferred Guarantee Trustee and delivered to the
Guarantor and the resigning Trust Preferred Guarantee Trustee.
(d) If no Successor Trust Preferred Guarantee Trustee
shall have been appointed and accepted appointment as provided in this Section
4.2 within 60 days after delivery of an instrument of removal or resignation,
the Trust Preferred Guarantee Trustee resigning or being removed may petition
any court of competent jurisdiction for appointment of a Successor Trust
Preferred Guarantee Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor Trust Preferred
Guarantee Trustee.
(e) No Trust Preferred Guarantee Trustee shall be liable
for the acts or omissions to act of any Successor Trust Preferred Guarantee
Trustee.
(f) Upon termination of this Trust Preferred Securities
Guarantee or removal or resignation of the Trust Preferred Guarantee Trustee
pursuant to this Section 4.2, the Guarantor shall pay to the Trust Preferred
Guarantee Trustee all amounts due to the Trust Preferred Guarantee Trustee
accrued to the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), if, as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer may have or assert.
The Guarantor's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders or by
causing the Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Trust
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding
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17
against the Guarantor, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the
Guarantor under this Trust Preferred Securities Guarantee shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) The release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the Trust Preferred
Securities to be performed or observed by the Issuer.
(b) The extension of time for the payment by the Issuer
of all or any portion of the Distributions, Redemption Price, Optional
Redemption Price, Liquidation Distribution or any other sums payable under the
terms of the Trust Preferred Securities or the extension of time for the
performance of any other obligation under, arising out of, or in connection
with, the Trust Preferred Securities.
(c) Any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the Trust
Preferred Securities, or any action on the part of the Issuer granting
indulgence or extension of any kind.
(d) The voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings affecting,
the Issuer or any of the assets of the Issuer;
(e) Any invalidity of, or defect or deficiency in, the
Trust Preferred Securities;
(f) The settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) Any other circumstances whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
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SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in Liquidation Amount of
the Trust Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trust
Preferred Guarantee Trustee in respect of this Trust Preferred Securities
Guarantee or exercising any trust or power conferred upon the Trust Preferred
Guarantee Trustee under this Trust Preferred Securities Guarantee, provided,
that, subject to Section 3.1, the Trust Preferred Guarantee Trustee shall have
the right to decline to follow any such direction if the Trust Preferred
Guarantee Trustee, being advised by counsel, determines that the action or
proceeding so directed may not lawfully be taken or if the Trust Preferred
Guarantee Trustee in good faith by its board or trustees, executive committee,
or a trust committee of directors or trustees, and/or Responsible Officers
shall determine that the action or proceeding so directed would involve the
Trust Preferred Guarantee Trustee in personal liability.
(b) If the Trust Preferred Guarantee Trustee fails to
enforce its rights under the Trust Preferred Securities Guarantee after a
Holder of Trust Preferred Securities has made a written request, such Holder of
Trust Preferred Securities may institute a legal proceeding directly against
the Guarantor to enforce the Trust Preferred Guarantee Trustee's rights under
this Trust Preferred Securities Guarantee, without first instituting a legal
proceeding against the Issuer, the Trust Preferred Guarantee Trustee or any
other person or entity. Notwithstanding the foregoing, if the Guarantor has
failed to make a Guarantee Payment, a Holder of Trust Preferred Securities may
directly institute a proceeding in such Holder's own name against the Guarantor
for enforcement of the Trust Preferred Securities Guarantee for such payment.
The Guarantor waives any right or remedy to require that any action be brought
first against the Issuer or any other person or entity before proceeding
directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
This Trust Preferred Securities Guarantee creates a guarantee
of payment and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of
the Holders of Trust Preferred Securities against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Trust Preferred
Securities Guarantee; provided, however, that the Guarantor shall not (except
to the extent required by mandatory provisions of law) be entitled to enforce
or exercise any right that it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Trust Preferred Securities Guarantee, if, at the time of any
such payment, any amounts are due and unpaid under this Trust Preferred
Securities Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount
in trust for the Holders and to pay over such amount to the Holders.
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SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Trust
Preferred Securities, and that the Guarantor shall be liable as principal and
as debtor hereunder to make Guarantee Payments pursuant to the terms of this
Trust Preferred Securities Guarantee notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions
So long as any Trust Preferred Securities remain outstanding,
if (a) for any distribution period, full distributions on a cumulative basis on
any Trust Preferred Securities have not been paid or declared and set apart for
payment, (b) an Event of Default (as defined in the Subordinated Indenture) has
occurred and is continuing or there shall have occurred and be continuing any
event of which the Guarantor has actual knowledge that, with the giving of
notice or lapse of time, or both, would constitute an Event of Default with
respect to the Subordinated Debentures, (c) the Guarantor is in default of its
obligations under this Trust Preferred Securities Guarantee or the Trust Common
Securities Guarantee, or (d) the Guarantor shall have given notice of its
selection of an Extension Period (as defined in the Subordinated Indenture) as
provided in the Subordinated Indenture with respect to the Subordinated
Debentures and shall not have rescinded such notice, or such Extension Period
(or any extension thereof) shall be continuing, then, during such period the
Guarantor shall not (i) declare or pay dividends on, make distributions with
respect to, or redeem, purchase or acquire, or make a liquidation payment with
respect to any of its capital stock (except for (x) dividends or distributions
in shares of, or options, warrants or rights to subscribe for or purchase
shares of, its capital stock and conversions or exchanges of common stock of
one class into common stock of another class and (y) redemptions or purchases
of any rights pursuant to the Rights Agreement and the issuance of capital
stock pursuant to such rights) or (ii) make any payments of principal, interest
or premium, if any, on or repay or repurchase or redeem any debt securities
(including guarantees of indebtedness for money borrowed) of the Guarantor that
rank pari passu with or junior to the Subordinated Debentures (other than (u)
any redemption, liquidation, interest, principal or guarantee payment by the
Guarantor where the payment is made by way of securities (including capital
stock) that rank pari passu with or junior to the securities on which such
redemption, liquidation, interest, principal or guarantee payment is being
made, (v) payments under this Trust Preferred Securities Guarantee or the Trust
Common Securities Guarantee, (w) purchases of Common Stock related to the
issuance of Common Stock under any of the Guarantor's benefit plans for its
directors, officers or employees, (x) as a result of a reclassification of the
Guarantor's capital stock or the exchange or conversion of one series or class
of the Guarantor's capital stock for another series or class of the Guarantor's
capital stock, (y) the purchase of fractional interests in shares of the
Guarantor's capital stock pursuant to the conversion
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or exchange provisions of such capital stock or the security being converted or
exchanged and (z) redemptions or purchases of any rights pursuant to the Rights
Agreement and the issuance of capital stock pursuant to such rights).
SECTION 6.2 Ranking
(a) This Trust Preferred Securities Guarantee will
constitute an unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all other liabilities of the
Guarantor (other than the obligations of the Guarantor under the Trust Common
Securities Guarantee, which are subordinate and junior to this Trust Preferred
Securities Guarantee to the extent provided therein), (ii) pari passu with the
most senior preferred or preference stock now or hereafter issued by the
Guarantor or any of its Affiliates and (iii) senior to the Guarantor's common
stock. Any similar guarantee given hereafter by the Guarantor with respect to
trust preferred securities that is silent as to seniority will rank pari passu
with this Trust Preferred Securities Guarantee.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Trust Preferred Securities Guarantee shall terminate upon
(i) full payment of the Redemption Price of all Trust Preferred Securities,
(ii) upon the distribution of the Subordinated Debentures to the Holders of all
of the Trust Preferred Securities, (iii) upon the conversion of all Trust
Preferred Securities pursuant to the Declaration or (iv) upon full payment of
the amounts payable in accordance with the Declaration upon liquidation of the
Issuer. Notwithstanding the foregoing, this Trust Preferred Securities
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder of Trust Preferred Securities must restore
payment of any sums paid under the Trust Preferred Securities or under this
Trust Preferred Securities Guarantee.
ARTICLE VIII
CERTAIN COVENANTS
SECTION 8.1 Payment of Additional Sums
Guarantor covenants and agrees that if and so long as (i) the
Issuer is the holder of all the Subordinated Debentures, (ii) a Trust Tax Event
(as defined in the Declaration) in respect of the Issuer has occurred and is
continuing and (iii) the Guarantor has elected, and has not revoked such
election, to pay Additional Sums (as defined in the Declaration) in respect of
the Trust
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Common Securities and Trust Preferred Securities, the Guarantor will pay to the
Issuer such Additional Sums.
SECTION 8.2 Continued Ownership of Trust Common Securities, Etc.
The Guarantor covenants and agrees (i) for so long as the Trust
Preferred Securities remain outstanding, (a) to maintain directly or indirectly
100% ownership of the Trust Common Securities, provided that certain successor
Persons in transactions which are permitted by Article VIII of the Subordinated
Indenture may succeed to the Guarantor's ownership of the Trust Common
Securities, (b) not to voluntarily terminate, wind-up or liquidate the Issuer,
except (I) in connection with a distribution of the Subordinated Debentures to
the holders of the Trust Securities in liquidation of the Issuer, (II) the
redemption of all Trust Securities or (III) in connection with certain mergers,
consolidations or amalgamations permitted by the Declaration, and (c) not to
convert Subordinated Debentures except pursuant to a notice of conversion
delivered to the Conversion Agent (as defined in the Declaration) by a Holder or
by a holder of Trust Common Securities, (ii) to use its reasonable commercial
efforts, consistent with the terms and provisions of the Declaration, to cause
the Issuer to remain classified as a grantor trust and not taxable as a
corporation for United States federal income tax purposes, (iii) to maintain the
reservation for issuance of the number of shares of Common Stock that would be
required from time to time upon the conversion of all the Subordinated
Debentures then outstanding, (iv) to deliver shares of Common Stock upon an
election by a Holder to convert such Trust Preferred Securities into or for
Common Stock, and (v) to honor all obligations relating to the conversion or
exchange of the Trust Preferred Securities into or for Common Stock or
Subordinated Debentures.
ARTICLE IX
INDEMNIFICATION, ETC.
SECTION 9.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith in accordance with this
Trust Preferred Securities Guarantee and in a manner that such Indemnified
Person reasonably believed to be within the scope of the authority conferred on
such Indemnified Person by this Trust Preferred Securities Guarantee or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Guarantor and upon such
information, opinions, reports or statements presented to the Guarantor by any
Person as to matters the Indemnified Person reasonably believes are within such
other Person's professional or expert competence and if selected by such
Indemnified Person,
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has been selected by such Indemnified Person with reasonable care by or on
behalf of the Guarantor, including information, opinions, reports or statements
as to the value and amount of the assets, liabilities, profits, losses, or any
other facts pertinent to the existence and amount of assets from which
Distributions to Holders of Trust Preferred Securities might properly be paid.
SECTION 9.2 Fees, Expenses and Indemnification
The Guarantor covenants and agrees to pay to the Trust
Preferred Guarantee Trustee from time to time, and the Trust Preferred
Guarantee Trustee shall be entitled to, reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust), and the Guarantor will pay or reimburse the Trust Preferred Guarantee
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trust Preferred Guarantee Trustee in
accordance with any of the provisions of this Trust Preferred Securities
Guarantee (including the reasonable compensation and the expenses and
disbursements of its counsel and all Persons not regularly in its employ),
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Guarantor also agrees to indemnify each
Indemnified Person for, and to hold each Indemnified Person harmless against,
any and all loss, liability, damage, claim or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligations of the Guarantor under this Section 9.2 shall survive the
termination of this Trust Preferred Securities Guarantee or the earlier
resignation or removal of the Trust Preferred Guarantee Trustee.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns
All guarantees and agreements contained in this Trust
Preferred Securities Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the benefit of
the Holders of the Trust Preferred Securities then outstanding.
SECTION 10.2 Amendments
Except with respect to any changes that do not materially
adversely affect the rights of Holders (in which case no consent of Holders
will be required), this Trust Preferred Securities Guarantee may only be
amended with the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Trust Preferred Securities. The provisions of the
Declaration with respect
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to consents to amendments (whether at a meeting or otherwise) shall apply to
the giving of such approval.
SECTION 10.3 Holding Company Formation, Consolidations and Mergers
Notwithstanding anything to the contrary in this Agreement the
Company may form a holding company by merger with or into a single direct or
indirect wholly owned subsidiary of the Company, whether under Section 251(g) of
the General Corporation Law of Delaware or otherwise, and in connection
therewith the Company may sell, lease or transfer any of its properties and
assets to such holding company. Upon any consolidation of the Guarantor with, or
merger of the Guarantor into, any other Person or any sale, transfer or lease of
the properties and assets of the Guarantor as, or substantially as, an entirety
by the Guarantor or upon any holding company formation in accordance with the
preceding sentence, the successor Person formed by such consolidation or into
which the Guarantor is merged or to which such sale, transfer or lease is made
or which constitutes the holding company formed as contemplated in the preceding
sentence, shall execute and deliver to the Trust Preferred Guarantee Trustee an
instrument of assumption in form satisfactory to the Trust Preferred Guarantee
Trustee whereby such successor expressly assumes the due and punctual
performance and observance of all of the covenants and conditions of this Trust
Preferred Securities Guarantee to be performed by the Guarantor and such
successor Person shall thereupon succeed to, and be substituted for, and may
exercise every right and power of, the Guarantor under this Trust Preferred
Securities Guarantee with the same effect as if such successor Person had been
named originally as the Guarantor herein, and thereafter, except in the case of
a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Trust Preferred Securities Guarantee. Notwithstanding the
foregoing, the predecessor Person may elect, at its option, not to be so
relieved of such obligations and covenants, provided that the predecessor Person
and the successor Person shall agree in writing to be co-obligors jointly and
severally with respect to all such obligations and covenants. Concurrently
with the delivery to the Trust Preferred Guarantee Trustee of such instrument
of assumption, the Guarantor shall deliver to the Trust Preferred Guarantee
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, transfer, sale or lease or the formation of such
holding company and the transactions effected in connection therewith and the
related instrument of assumption comply with this Article and that all
conditions precedent herein provided relating to such transaction and
assumption have been complied with.
SECTION 10.4 Notices
All notices provided for in this Trust Preferred Securities
Guarantee shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Trust Preferred Guarantee Trustee, at
the Trust Preferred Guarantee Trustee's Corporate Trust Office, Attention:
Corporate Trustee, Administration Department.
(b) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may give notice
of to the Holders of the Trust Preferred Securities and the Trust Preferred
Guarantee Trustee):
El Paso Natural Gas Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President and Treasurer
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(c) If given to any Holder of Trust Preferred Securities,
at the address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 10.5 Benefit
This Trust Preferred Securities Guarantee is solely for the
benefit of the Holders of the Trust Preferred Securities and, subject to
Section 3.1(a), is not separately transferable from the Trust Preferred
Securities.
SECTION 10.6 Governing Law
THIS TRUST PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
THIS TRUST PREFERRED SECURITIES GUARANTEE is executed as of
the day and year first above written.
EL PASO NATURAL GAS COMPANY,
as Guarantor
By:
-----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trust Preferred Guarantee Trustee
By:
-----------------------------------
Name:
Title:
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