[Form of Supplemental Indenture for
non-convertible securities]
====================================
FIRST SUPPLEMENTAL INDENTURE
between
NORAM ENERGY CORP.
and
[Name of Debt Trustee]
Dated as of October __, 1995
=====================================
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms . . . . . . . . . . . 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount . . . . 4
SECTION 2.2. Maturity . . . . . . . . . . . . . . . . 4
SECTION 2.3. Form and Payment . . . . . . . . . . . . 4
SECTION 2.4. Global Debenture . . . . . . . . . . . . 4
SECTION 2.5. Interest . . . . . . . . . . . . . . . . 6
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Special Event Redemption . . . . . . . . 7
SECTION 3.2. Optional Redemption by Company . . . . . 8
SECTION 3.3. No Sinking Fund . . . . . . . . . . . . . 8
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period . . 9
SECTION 4.2. Notice of Extension . . . . . . . . . . . 9
Section 4.3. Limitation of Transactions . . . . . . . 10
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses . . . . . . . . . . . 10
Section 5.2. Payment Upon Resignation or Removal . . . 11
ARTICLE VI
SUBORDINATION
SECTION 6.1. Agreement to Subordinate . . . . . . . . 11
SECTION 6.2. Default on Senior Indebtedness . . . . . 12
SECTION 6.3. Liquidation; Dissolution; Bankruptcy . . 12
SECTION 6.4. Subrogation . . . . . . . . . . . . . . . 14
SECTION 6.5. Trustee to Effectuate Subordination . . . 15
SECTION 6.6. Notice by the Company . . . . . . . . . . 15
i
Page
SECTION 6.7. Rights of the Trustee; Holders of Senior
Indebtedness . . . . . . . . . . . . . . 16
SECTION 6.8. Subordination May Not Be Impaired . . . . 17
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1. Listing on an Exchange . . . . . . . . . 17
ARTICLE VIII
FORM OF DEBENTURE
SECTION 8.1. Form of Debenture . . . . . . . . . . . . 18
ARTICLE IX
ORIGINAL ISSUE OF DEBENTURES
SECTION 9.1. Original Issue of Debentures . . . . . . 24
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Ratification of Indenture . . . . . . . . 25
SECTION 10.2. Trustee Not Responsible for Recitals . . 25
SECTION 10.3. Governing Law . . . . . . . . . . . . . . 25
SECTION 10.4. Separability . . . . . . . . . . . . . . 25
SECTION 10.5. Counterparts . . . . . . . . . . . . . . 25
ii
FIRST SUPPLEMENTAL INDENTURE, dated as of ____________,
1995 (the "First Supplemental Indenture"), between NorAm Energy
Corp., a Delaware corporation (the "Company"), and [Name of Debt
Trustee], as trustee (the "Trustee") under the Indenture dated as
of ________, 1995 between the Company and the Trustee (the
"Indenture").
WHEREAS, the Company executed and delivered the Inden-
ture to the Trustee to provide for the future issuance of the
Company's unsecured junior subordinated debt securities to be
issued from time to time in one or more series as might be
determined by the Company under the Indenture, in an unlimited
aggregate principal amount which may be authenticated and deliv-
ered as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the
Company desires to provide for the establishment of a new series
of its Securities to be known as its ___% Junior Subordinated
Debentures due 20[25] (the "Debentures"), the form and substance
of such Debentures and the terms, provisions and conditions
thereof to be set forth as provided in the Indenture and this
First Supplemental Indenture;
WHEREAS, NorAm Financing [I] [II], a Delaware statutory
business trust (the "Trust"), has offered to the public $___
million aggregate liquidation amount of its ___% Trust Preferred
Securities (the "Preferred Securities"), representing undivided
beneficial interests in the assets of the Trust and proposes to
invest the proceeds from such offering, together with the pro-
ceeds of the issuance and sale by the Trust to the Company of
$___ million aggregate liquidation amount of its ___% Trust
Common Securities, in $____ million aggregate principal amount of
the Debentures; and
WHEREAS, the Company has requested that the Trustee
execute and deliver this First Supplemental Indenture and all
requirements necessary to make this First Supplemental Indenture
a valid instrument in accordance with its terms, and to make the
Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company,
have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase and
acceptance of the Debentures by the Holders thereof, and for the
purpose of setting forth, as provided in the Indenture, the form
and substance of the Debentures and the terms, provisions and
conditions thereof, the Company covenants and agrees with the
Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same
meaning when used in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a
Section or Article of this First Supplemental Indenture;
(e) headings are for convenience of reference only and
do not affect interpretation;
(f) the following terms have the meanings given to
them in the Declaration: (i) Business Day; (ii) Clearing Agency;
(iii) Delaware Trustee; (iv) Depositary; (v) Dissolution Tax
Opinion; (vi) No Recognition Opinion; (vii) Preferred Security
Certificate; (viii) Pricing Agreement; (ix) Institutional Trust-
ee; (x) Regular Trustees; (xi) Special Event; and (xii) Tax
Event; and (xiii) Underwriting Agreement;
(g) the following terms have the meanings given to
them in this Section 1.1(g):
"Additional Interest" shall have the meaning set forth
in Section 2.5.
"Compounded Interest" shall have the meaning set forth
in Section 4.1.
"Declaration" means the Amended and Restated Decla-
ration of Trust of NorAm Financing [I] [II], a Delaware statutory
business trust, dated as of _________, 1995.
"Deferred Interest" shall have the meaning set forth in
Section 4.1.
2
"Dissolution Event" means that, as a result of the
occurrence and continuation of a Special Event, the Trust is to
be dissolved in accordance with the Declaration, and the Deben-
tures held by the Institutional Trustee are to be distributed to
the holders of the Trust Securities issued by the Trust pro rata
in accordance with the Declaration.
"Extended Interest Payment Period" shall have the
meaning set forth in Section 4.1.
["Extended Maturity Date" means, if the Company elects
to extend the Maturity Date in accordance with Section 2.2(b),
the date selected by the Company which is after the Scheduled
Maturity Date but before October __, 2044.]
"Global Debenture" shall have the meaning set forth in
Section 2.4.
"Maturity Date" means the date on which the Debentures
mature and on which the principal shall be due and payable
together with all accrued and unpaid interest thereon including
Compounded Interest and Additional Interest, if any.
"Non Book-Entry Preferred Securities" shall have the
meaning set forth in Section 2.4.
"Optional Redemption Price" shall have the meaning set
forth in Section 3.2.
"Preferred Securities" has the meaning set forth in the
recitals to this First Supplemental Indenture.
["Scheduled Maturity Date" means October __, 2025.]
"Senior Indebtedness" means, with respect to the
Company, (i) the principal, premium, if any, and interest in
respect of (A) indebtedness of such obligor for money borrowed
and (B) indebtedness evidenced by securities, debentures, bonds
or other similar instruments issued by such obligor; (ii) all
capital lease obligations of such obligor; (iii) all obligations
of such obligor issued or assumed as the deferred purchase price
of property, all conditional sale obligations of such obligor and
all obligations of such obligor under any title retention agree-
ment (but excluding trade accounts payable arising in the ordi-
nary course of business); (iv) all obligations of such obligor
for the reimbursement on any letter of credit, banker's accep-
tance, security purchase facility or similar credit transaction;
(v) all obligations of the type referred to in clauses (i)
3
through (iv) of other Persons for the payment of which such
obligor is responsible or liable as obligor, guarantor or other-
wise; and (vi) all obligations of the type referred to in clauses
(i) through (v) of other Persons secured by any lien on any
property or asset of such obligor (whether or not such obligation
is assumed by such obligor), except for (1) any such indebtedness
that is by its terms subordinated to or pari passu with the
Debentures, and (2) any indebtedness between or among such obli-
gor and its Affiliates, including all other debt securities and
guarantees in respect of those debt securities, issued to (y) any
other NorAm Financing Trust or (z) any other trust, or a trustee
of such trust, partnership or other entity affiliated with the
Company which is a financing vehicle of the Company (a "Financing
Entity") in connection with the issuance by such Financial Entity
of preferred securities or other securities which rank pari passu
with, or junior to, the Preferred Securities.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Securities
designated the "___% Junior Subordinated Deferrable Interest
Debentures due 20[25]", limited in aggregate principal amount to
$___ million, which amount shall be as set forth in any written
order of the Company for the authentication and delivery of
Debentures pursuant to Section ___ of the Indenture.
SECTION 2.2. Maturity. [Select appropriate option]
[Use Option 1 if maturity is fixed -- The Maturity Date
is ____________, 2025.]
[Use Option 2 if maturity may be extended -- (a) The
Maturity Date will be either:
i) the Scheduled Maturity Date; or
ii) if the Company elects to extend the Maturity
Date beyond the Scheduled Maturity Date in accordance with
Section 2.2(b), the Extended Maturity Date;
(b) the Company may at any time before the day which
is 90 days before the Scheduled Maturity Date, elect to extend
the Maturity Date only once to the Extended Maturity Date provid-
4
ed that the following conditions in this Section 2.2(b) are
satisfied both at the date the Company gives notice in accordance
with Section 2.2(c) of its election to extend the Maturity Date
and at the Scheduled Maturity Date:
i) the Company is not in bankruptcy or otherwise
insolvent;
ii) the Company is not in default on any Securi-
ties issued to any NorAm Trust or any trustee of such NorAm
Trust in connection with the issuance of Trust Securities by
such NorAm Trust;
iii) the Company has made timely payments on the
Debenture for the immediately preceding six quarters without
deferrals;
iv) the Trust is not in arrears on payments of
Distributions on the Trust Securities issued by it; and
v) the Debentures are rated Investment grade or
the equivalent by Standard & Poor's Corporation, Xxxxx'x
Investors Service, Inc., Fitch Investor Services, Duff &
Xxxxxx Credit Rating Company or any other nationally recog-
nized statistical rating organization; and
(c) if the Company elects to extend the Maturity Date
in accordance with Section 2.2(b), the Company shall give notice
to registered holders of the Debentures, the Institutional
Trustee and the Trust of the extension of the Maturity Date and
the Extended Maturity Date at least 90 days before the Scheduled
Maturity Date.]
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Debentures shall
be issued in fully registered certificated form without interest
coupons. Principal and interest on the Debentures issued in
certificated form will be payable, the transfer of such Deben-
tures will be registrable and such Debentures will be exchange-
able for Debentures bearing identical terms and provisions at the
office or agency of the Trustee; provided, however, that payment
of interest may be made at the option of the Company by check
mailed to the Holder at such address as shall appear in the
Security Register. Notwithstanding the foregoing, so long as the
Holder of any Debentures is the Institutional Trustee, the
payment of the principal of and interest (including Compounded
5
Interest and Additional Interest, if any) on such Debentures held
by the Institutional Trustee will be made at such place and to
such account as may be designated by the Institutional Trustee.
SECTION 2.4. Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be
presented to the Trustee by the Institutional Trustee in
exchange for a global Debenture in an aggregate principal
amount equal to the aggregate principal amount of all out-
standing Debentures (a "Global Debenture"), to be registered
in the name of the Depositary, or its nominee, and delivered
by the Trustee to the Depositary for crediting to the ac-
counts of its participants pursuant to the instructions of
the Regular Trustees. The Company upon any such presenta-
tion shall execute a Global Debenture in such aggregate
principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Indenture
and this First Supplemental Indenture. Payments on the
Debentures issued as a Global Debenture will be made to the
Depositary; and
(ii) if any Preferred Securities are held in non
book-entry certificated form, the Debentures in certificated
form may be presented to the Trustee by the Institutional
Trustee and any Preferred Security Certificate which repre-
sents Preferred Securities other than Preferred Securities
held by the Clearing Agency or its nominee ("Non Book-Entry
Preferred Securities") will be deemed to represent benefi-
cial interests in Debentures presented to the Trustee by the
Institutional Trustee having an aggregate principal amount
equal to the aggregate liquidation amount of the Non Book-E-
ntry Preferred Securities until such Preferred Security
Certificates are presented to the Security Registrar for
transfer or reissuance at which time such Preferred Security
Certificates will be cancelled and a Debenture, registered
in the name of the holder of the Preferred Security Certifi-
cate or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount
of the Preferred Security Certificate cancelled, will be
executed by the Company and delivered to the Trustee for
authentication and delivery in accordance with the Indenture
and this First Supplemental Indenture. On issue of such
Debentures, Debentures with an equivalent aggregate princi-
6
pal amount that were presented by the Institutional Trustee
to the Trustee will be deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole
but not in part, only to another nominee of the Depositary, or to
a successor Depositary selected or approved by the Company or to
a nominee of such successor Depositary.
(c) If at any time the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary or if at
any time the Depositary for such series shall no longer be
registered or in good standing under the Securities Exchange Act
of 1934, as amended, or other applicable statute or regulation,
and a successor Depositary for such series is not appointed by
the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, the
Company will execute, and, subject to Article [Two] of the Inden-
ture, the Trustee, upon written notice from the Company, will
authenticate and deliver the Debentures in definitive registered
form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the
Global Debenture in exchange for such Global Debenture. In addi-
tion, the Company may at any time determine that the Debentures
shall no longer be represented by a Global Debenture. In such
event the Company will execute, and subject to Section [2.05] of
the Indenture, the Trustee, upon receipt of an Officers Certifi-
cate evidencing such determination by the Company, will authenti-
cate and deliver the Debentures in definitive registered form
without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global
Debenture in exchange for such Global Debenture. Upon the
exchange of the Global Debenture for such Debentures in defini-
tive registered form without coupons, in authorized denomina-
tions, the Global Debenture shall be cancelled by the Trustee.
Such Debentures in definitive registered form issued in exchange
for the Global Debenture shall be registered in such names and in
such authorized denominations as the Depositary, pursuant to in-
structions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such
Securities to the Depositary for delivery to the Persons in whose
names such Securities are so registered.
SECTION 2.5. Interest.
(a) Each Debenture will bear interest at the rate of
___% per annum (the "Coupon Rate") from the original date of
issuance until the principal thereof becomes due and payable, and
7
on any overdue principal and (to the extent that payment of such
interest is enforceable under applicable law) on any overdue
installment of interest at the Coupon Rate, compounded quarterly,
payable (subject to the provisions of Article Four) quarterly in
arrears on [March 31, June 30, September 30 and December 31] of
each year (each, an "Interest Payment Date," commencing on
__________, 1995), to the Person in whose name such Debenture or
any predecessor Debenture is registered, at the close of business
on the regular record date for such interest installment, which,
in respect of (i) Debentures of which the Institutional Trustee
is the Holder and the Preferred Securities are in book-entry only
form or (ii) a Global Debenture, shall be the close of business
on the Business Day next preceding that Interest Payment Date.
Notwithstanding the foregoing sentence, if (i) the Debentures are
held by the Institutional Trustee and the Preferred Securities
are no longer in book-entry only form or (ii) the Debentures are
not represented by a Global Debenture, the Company may select a
regular record date for such interest installment which shall be
any date at least one Business Day before an Interest Payment
Date.
(b) The amount of interest payable for any period will
be computed on the basis of a 360-day year of twelve 30-day
months. Except as provided in the following sentence, the amount
of interest payable for any period shorter than a full quarterly
period for which interest is computed, will be computed on the
basis of the actual number of days elapsed in such a 30-day
period. In the event that any date on which interest is payable
on the Debentures is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on such
date.
(c) If, at any time while the Institutional Trustee is
the Holder of any Debentures, the Trust or the Institutional -
Trustee is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding
taxes) imposed by the United States, or any other taxing authori-
ty, then, in any case, the Company will pay as additional inter-
est ("Additional Interest") on the Debentures held by the Instit-
utional Trustee, such additional amounts as shall be required so
that the net amounts received and retained by the Trust and the
Institutional Trustee after paying such taxes, duties, assess-
8
ments or other governmental charges will be equal to the amounts
the Trust and the Institutional Trustee would have received had
no such taxes, duties, assessments or other government charges
been imposed.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Special Event Redemption.
If a Tax Event has occurred and is continuing and:
(a) the Company has received a Redemption Tax Opinion;
or
(b) after receiving a Dissolution Tax Opinion, the
Regular Trustees shall have been informed by tax counsel
rendering the Dissolution Tax Opinion that a No Recognition
Opinion cannot be delivered to the Trust,
then, notwithstanding Section 3.2(a) but subject to Section
3.2(b), the Company shall have the right upon not less than 30
days nor more than 60 days notice to the Holders of the Deben-
tures to redeem the Debentures, in whole or in part, for cash
within 90 days following the occurrence of such Tax Event (the
"90 Day Period") at a redemption price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid
interest thereon to the date of such redemption (the "Redemption
Price"), provided that if at the time there is available to the
Company the opportunity to eliminate, within the 90 Day Period,
the Tax Event by taking some ministerial action ("Ministerial Ac-
tion"), such as filing a form or making an election, or pursuing
some other similar reasonable measure which has no adverse effect
on the Company, the Trust or the Holders of the Trust Securities
issued by the Trust, the Company shall pursue such Ministerial
Action in lieu of redemption, and, provided, further, that the
Company shall have no right to redeem the Debentures while the
Trust is pursuing any Ministerial Action pursuant to its obliga-
tions under the Declaration. The Redemption Price shall be paid
prior to 12:00 noon, New York time, on the date of such redemp-
tion or such earlier time as the Company determines, provided
that the Company shall deposit with the Trustee an amount suffi-
cient to pay the Redemption Price by 10:00 a.m., New York time,
on the date such Redemption Price is to be paid.
9
SECTION 3.2. Optional Redemption by Company.
(a) Subject to the provisions of Section 3.2(b) and to
the provisions of Article [III] of the Indenture, except as
otherwise may be specified in this First Supplemental Indenture,
the Company shall have the right to redeem the Debentures, in
whole or in part, from time to time, on or after _________, 2000,
at a redemption price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon to the date
of such redemption (the "Optional Redemption Price"). Any re-
demption pursuant to this paragraph will be made upon not less
than 30 days nor more than 60 days notice to the Holder of the
Debentures, at the Optional Redemption Price. If the Debentures
are only partially redeemed pursuant to this Section 3.2, the
Debentures will be redeemed pro rata or by lot or by any other
method utilized by the Trustee; provided, that if at the time of
redemption the Debentures are registered as a Global Debenture,
the Depositary shall determine, in accordance with its proce-
dures, the principal amount of such Debentures held by each
Holder of Debenture to be redeemed. The Optional Redemption
Price shall be paid prior to 12:00 noon, New York time, on the
date of such redemption or at such earlier time as the Company
determines provided that the Company shall deposit with the
Trustee an amount sufficient to pay the Optional Redemption Price
by 10:00 a.m., New York time, on the date such Optional Redemp-
tion Price is to be paid.
(b) If a partial redemption of the Debentures would
result in the delisting of the Preferred Securities issued by the
Trust from any national securities exchange or other organization
on which the Preferred Securities are then listed, the Company
shall not be permitted to effect such partial redemption and may
only redeem the Debentures in whole.
SECTION 3.3. No Sinking Fund.
The Debentures are not entitled to the benefit of any
sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
The Company shall have the right, at any time and from
time to time during the term of the Debentures, to defer payments
10
of interest by extending the interest payment period of such
Debentures for a period not exceeding 20 consecutive quarters
(the "Extended Interest Payment Period"), during which Extended
Interest Payment Period no interest shall be due and payable;
provided that no Extended Interest Payment Period may extend
beyond the Maturity Date. To the extent permitted by applicable
law, interest, the payment of which has been deferred because of
the extension of the interest payment period pursuant to this
Section 4.1, will bear interest thereon at the Coupon Rate
compounded quarterly for each quarter of the Extended Interest
Payment Period ("Compounded Interest"). At the end of the
Extended Interest Payment Period, the Company shall pay all
interest accrued and unpaid on the Debentures, including any
Additional Interest and Compounded Interest (together, "Deferred
Interest") that shall be payable to the Holders of the Debentures
in whose names the Debentures are registered in the Security
Register on the first record date after the end of the Extended
Interest Payment Period. Before the termination of any Extended
Interest Payment Period, the Company may further extend such
period, provided that such period together with all such further
extensions thereof shall not exceed 20 consecutive quarters, or
extend beyond the maturity date of the Debentures. Upon the
termination of any Extended Interest Payment Period and upon the
payment of all Deferred Interest then due, the Company may
commence a new Extended Interest Payment Period, subject to the
foregoing requirements. No interest shall be due and payable
during an Extended Interest Payment Period, except at the end
thereof, but the Company may prepay at any time all or any
portion of the interest accrued during an Extended Interest
Payment Period.
SECTION 4.2. Notice of Extension.
(a) If the Institutional Trustee is the only regis-
tered Holder of the Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall give written
notice to the Regular Trustees, the Institutional Trustee and the
Trustee of its selection of such Extended Interest Payment Period
one Business Day before the earlier of (i) the next succeeding
date on which Distributions on the Trust Securities issued by the
Trust are payable, or (ii) the date the Trust is required to give
notice of the record date, or the date such Distributions are
payable, to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Preferred
Securities issued by the Trust, but in any event at least one
Business Day before such record date.
11
(b) If the Institutional Trustee is not the only
Holder of the Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall give the
Holders of the Debentures and the Trustee written notice of its
selection of such Extended Interest Payment Period 10 Business
Days before the earlier of (i) the next succeeding Interest
Payment Date, or (ii) the date the Company is required to give
notice of the record or payment date of such interest payment to
the New York Stock Exchange or other applicable self-regulatory
organization or to Holders of the Debentures.
(c) The quarter in which any notice is given pursuant
to paragraphs (a) or (b) of this Section 4.2 shall be counted as
one of the 20 quarters permitted in the maximum Extended Interest
Payment Period permitted under Section 4.1.
Section 4.3. Limitation of Transactions.
If (i) the Company shall exercise its right to defer
payment of interest as provided in Section 4.1, or (ii) there
shall have occurred any Event of Default, as defined in the
Indenture, then (a) the Company shall not declare or pay any
dividend on, make any distributions with respect to, or redeem,
purchase, acquire or make a liquidation payment with respect to,
any of its capital stock (other than (i) purchases or acquisi-
tions of shares of its common stock in connection with the satis-
faction by the Company of its obligations under any employee
benefit plans or the satisfaction by the Company of its obliga-
tions pursuant to any contract or security requiring the Company
to purchase shares of its common stock, (ii) as a result of a
reclassification of its capital stock or the exchange or conver-
sion of one class or series of its capital for another class or
series of its capital stock or, (iii) the purchase of fractional
interests in shares of its capital stock pursuant to the conver-
sion or exchange provisions of such capital stock or security
being converted or exchanged) or make any guarantee payment with
respect thereto and (b) the Company shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities issued by the Company which rank
pari passu with or junior to the Debentures; provided, however,
the Company may declare and pay a stock dividend where the
dividend stock is the same stock as that on which the dividend is
being paid.
12
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of
the Debentures to the Institutional Trustee and in connection
with the sale of the Trust Securities by the Trust, the Company,
in its capacity as borrower with respect to the Debentures,
shall:
(a) pay all costs and expenses relating to the offer-
ing, sale and issuance of the Debentures, including commissions
to the underwriters payable pursuant to the Underwriting Agree-
ment and the Pricing Agreement and compensation of the Trustee
under the Indenture in accordance with the provisions of Section
[7.06] of the Indenture;
(b) pay all costs and expenses of the Trust (includ-
ing, but not limited to, costs and expenses relating to the
organization of the Trust, the offering, sale and issuance of the
Trust Securities (including commissions to the underwriters in
connection therewith), the fees and expenses of the Institutional
Trustee and the Delaware Trustee, the costs and expenses relating
to the operation of the Trust, including without limitation,
costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing, and disposition of
Trust assets);
(c) be primarily liable for any indemnification
obligations arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and
all liabilities, costs and expenses with respect to such taxes of
the Trust.
Section 5.2. Payment Upon Resignation or Removal.
Upon termination of this First Supplemental Indenture
or the Indenture or the removal or resignation of the Trustee
pursuant to this Section 6.10, the Company shall pay to the
Trustee all amounts accrued to the date of such termination,
13
removal or resignation. Upon termination of the Declaration or
the removal or resignation of the Delaware Trustee or the Insti-
tutional Trustee, as the case may be, pursuant to Section 5.6 of
the Declaration, the Company shall pay to the Delaware Trustee or
the Institutional Trustee, as the case may be, all amounts
accrued to the date of such termination, removal or resignation.
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1. Listing on an Exchange.
If the Debentures are to be issued as a Global Deben-
ture in connection with the distribution of the Debentures to the
holders of the Preferred Securities issued by the Trust upon a
Dissolution Event, the Company will use its best efforts to list
such Debentures on the New York Stock Exchange, Inc. or on such
other exchange as the Preferred Securities are then listed.
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.1. Form of Debenture.
The Debentures and the Trustee's Certificate of Authen-
tication to be endorsed thereon are to be substantially in the
following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT
THE FOLLOWING -- This Debenture is a Global Debenture within the
meaning of the Indenture hereinafter referred to and is regis-
tered in the name of a Depositary or a nominee of a Depositary.
This Debenture is exchangeable for Debentures registered in the
name of a person other than the Depositary or its nominee only in
the limited circumstances described in the Indenture, and no
transfer of this Debenture (other than a transfer of this Deben-
ture as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx,
00
Xxx Xxxx, Xxx Xxxx) to the issuer or its agent for registration
of transfer, exchange or payment, and any Debenture issued is
registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust
Company and any payment hereon is made to Cede & Co., ANY TRANS-
FER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co.,
has an interest herein.]
No. ______________________
NORAM ENERGY CORP.
___% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE 20[44]
NorAm Energy Corp., a Delaware corporation (the "Compa-
ny", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to, ______________ or registered assigns, the
principal sum of _____________ Dollars ($___________) on ______-
___, ____, and to pay interest on said principal sum from ___-
_________, 1995, or from the most recent interest payment date
(each such date, an "Interest Payment Date") to which interest
has been paid or duly provided for, quarterly (subject to defer-
ral as set forth herein) in arrears on [March 31, June 30, Sep-
tember 30 and December 31] of each year commencing ___________,
1995, at the rate of ___% per annum until the principal hereof
shall have become due and payable, and on any overdue principal
and premium, if any, and (without duplication and to the extent
that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the same rate per
annum compounded quarterly. The amount of interest payable on
any Interest Payment Date shall be computed on the basis of a
360-day year of twelve 30-day months. In the event that any date
on which interest is payable on this Debenture is not a Business
Day, then payment of interest payable on such date will be made
on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on such date. The interest installment so
payable, and punctually paid or duly provided for, on any Inter-
15
est Payment Date will, as provided in the Indenture, be paid to
the person in whose name this Debenture (or one or more Predeces-
sor Securities, as defined in said Indenture) is registered at
the close of business on the regular record date for such inter-
est installment. [which shall be the close of business on the
business day next preceding such Interest Payment Date unless
otherwise provided in the Indenture] [IF PURSUANT TO THE PROVI-
SIONS OF THE INDENTURE THE DEBENTURES ARE NO LONGER REPRESENTED
BY A GLOBAL DEBENTURE -- which shall be the close of business on
the ____ business day next preceding such Interest Payment Date.]
Any such interest installment not punctually paid or duly provid-
ed for shall forthwith cease to be payable to the registered
Holders on such regular record date and may be paid to the Person
in whose name this Debenture (or one or more Predecessor Securi-
ties) is registered at the close of business on a special record
date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered Holders
of this series of Debentures not less than 10 days prior to such
special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed, and
upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. The principal of (and premium,
if any) and the interest on this Debenture shall be payable at
the office or agency of the Trustee maintained for that purpose
in any coin or currency of the United States of America that at
the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the regis-
tered Holder at such address as shall appear in the Security
Register. Notwithstanding the foregoing, so long as the Holder
of this Debenture is the Institutional Trustee, the payment of
the principal of (and premium, if any) and interest on this
Debenture will be made at such place and to such account as may
be designated by the Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the
extent provided in the Indenture, subordinate and junior in right
of payment to the prior payment in full of all Senior Indebted-
ness, and this Debenture is issued subject to the provisions of
the Indenture with respect thereto. Each Holder of this Deben-
ture, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his or
her behalf to take such action as may be necessary or appropriate
to acknowledge or effectuate the subordination so provided and
(c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each Holder hereof, by his or her acceptance
16
hereof, hereby waives all notice of the acceptance of the subor-
dination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereaf-
ter incurred, and waives reliance by each such holder upon said
provisions.
This Debenture shall not be entitled to any benefit
under the Indenture hereinafter referred to, be valid or become
obligatory for any purpose until the Certificate of Authentica-
tion hereon shall have been signed by or on behalf of the Trust-
ee.
The provisions of this Debenture are continued on the
reverse side hereof and such continued provisions shall for all
purposes have the same effect as though fully set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this instru-
ment to be executed.
Dated __________________
NORAM ENERGY CORP.
By: ______________________________
Name:
Title
Attest:
By: ______________________
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Deben-
tures described in the within-mentioned Indenture.
[ ]
or as Authentication Agent
17
By______________________ By______________________
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of
Debentures of the Company (herein sometimes referred to as the
"Debentures"), specified in the Indenture, all issued or to be
issued in one or more series under and pursuant to an Indenture
dated as of _______, 1995, duly executed and delivered between
the Company and The Chase Manhattan Bank, N.A., as Trustee (the
"Trustee"), as supplemented by the First Supplemented Indenture
dated as of _______, 1995, between the Company and the Trustee
(the Indenture as so supplemented, the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is
hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Debentures. By the
terms of the Indenture, the Debentures are issuable in series
that may vary as to amount, date of maturity, rate of interest
and in other respects as provided in the Indenture. This series
of Debentures is limited in aggregate principal amount as speci-
fied in said First Supplemental Indenture.
Because of the occurrence and continuation of a Tax
Event, in certain circumstances, this Debenture may become due
and payable at the principal amount together with any interest
accrued thereon (the "Redemption Price"). The Redemption Price
shall be paid prior to 12:00 noon, New York time, on the date of
such redemption or at such earlier time as the Company deter-
mines. The Company shall have the right to redeem this Debenture
at the option of the Company, without premium or penalty, in
whole or in part at any time on or after ________, 2000 (an "Op-
tional Redemption"), or at any time in certain circumstances upon
the occurrence of a Tax Event, at a redemption price equal to
100% of the principal amount plus any accrued but unpaid inter-
est, to the date of such redemption (the "Optional Redemption
Price"). Any redemption pursuant to this paragraph will be made
upon not less than 30 days nor more than 60 days notice, at the
Optional Redemption Price. If the Debentures are only partially
redeemed by the Company pursuant to an Optional Redemption, the
Debentures will be redeemed pro rata or by lot or by any other
method utilized by the Trustee; provided that if, at the time of
redemption, the Debentures are registered as a Global Debenture,
the Depositary shall determine the principal amount of such
18
Debentures held by each Debentureholder to be redeemed in accor-
dance with its procedures.
In the event of redemption of this Debenture in part
only, a new Debenture or Debentures of this series for the unre-
deemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Inden-
ture, shall have occurred and be continuing, the principal of all
of the Debentures may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the
Company and the Trustee, with the consent of the Holders of not
less than a majority in aggregate principal amount of the Deben-
tures of each series affected at the time outstanding, as defined
in the Indenture, to execute supplemental indentures for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights
of the Holders of the Debentures; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any
Debentures of any series, or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption
thereof, without the consent of the Holder of each Debenture so
affected, or (ii) reduce the aforesaid percentage of Debentures,
the Holders of which are required to consent to any such supple-
mental indenture, without the consent of the Holders of each
Debenture then outstanding and affected thereby. The Indenture
also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Debentures of any series at the
time outstanding affected thereby, on behalf of all of the Hold-
ers of the Debentures of such series, to waive any past default
in the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture with respect
to such series, and its consequences, except a default in the
payment of the principal of or premium, if any, or interest on
any of the Debentures of such series. Any such consent or waiver
by the registered Holder of this Debenture (unless revoked as
provided in the Indenture) shall be conclusive and binding upon
such Holder and upon all future Holders and owners of this
Debenture and of any Debenture issued in exchange herefor or in
place hereof (whether by registration of transfer or otherwise),
19
irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference herein to the Indenture and no provision
of this Debenture or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and premium, if any, and interest on this
Debenture at the time and place and at the rate and in the money
herein prescribed.
The Company shall have the right at any time during the
term of the Debentures and from time to time to extend the inter-
est payment period of such Debentures for up to 20 consecutive
quarters (an "Extended Interest Payment Period"), at the end of
which period the Company shall pay all interest then accrued and
unpaid (together with interest thereon at the rate specified for
the Debentures to the extent that payment of such interest is
enforceable under applicable law). Before the termination of any
such Extended Interest Payment Period, the Company may further
extend such Extended Interest Payment Period, provided that such
Extended Interest Payment Period together with all such further
extensions thereof shall not exceed 20 consecutive quarters. At
the termination of any such Extended Interest Payment Period and
upon the payment of all accrued and unpaid interest and any addi-
tional amounts then due, the Company may commence a new Extended
Interest Payment Period.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by
the registered Holder hereof on the Security Register of the
Company, upon surrender of this Debenture for registration of
transfer at the office or agency of the Trustee in the City and
State of New York accompanied by a written instrument or instru-
ments of transfer in form satisfactory to the Company or the
Trustee duly executed by the registered Holder hereof or his
attorney duly authorized in writing, and thereupon one or more
new Debentures of authorized denominations and for the same ag-
gregate principal amount and series will be issued to the desig-
nated transferee or transferees. No service charge will be made
for any such transfer, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in relation thereto.
Prior to due presentment for registration of transfer
of this Debenture, the Company, the Trustee, any paying agent and
the Security Registrar may deem and treat the registered holder
hereof as the absolute owner hereof (whether or not this Deben-
20
ture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security Regis-
trar) for the purpose of receiving payment of or on account of
the principal hereof and premium, if any, and interest due hereon
and for all other purposes, and neither the Company nor the
Trustee nor any paying agent nor any Security Registrar shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the princi-
pal of or the interest on this Debenture, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect
of the Indenture, against any incorporator, stockholder, officer
or director, past, present or future, as such, of the Company or
of any predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration
for the issuance hereof, expressly waived and released.
[The Debentures of this series are issuable only in
registered form without coupons in denominations of $25 and any
integral multiple thereof.] [This Global Debenture is exchange-
able for Debentures in definitive form only under certain limited
circumstances set forth in the Indenture. Debentures of this
series so issued are issuable only in registered form without
coupons in denominations of $25 and any integral multiple there-
of.] As provided in the Indenture and subject to certain limita-
tions [herein and] therein set forth, Debentures of this series
[so issued] are exchangeable for a like aggregate principal
amount of Debentures of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Debenture that are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of $_-
__________ may, upon execution of this First Supplemental Inden-
ture, be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and
deliver said Debentures to or upon the written order of the
21
Company, signed by its Chairman, its Vice Chairman, its Presi-
dent, or any Vice President and its Treasurer or an Assistant
Treasurer, without any further action by the Company.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture.
The Indenture, as supplemented by this First Supple-
mental Indenture, is in all respects ratified and confirmed, and
this First Supplemental Indenture shall be deemed part of the
Indenture in the manner and to the extent herein and therein
provided.
SECTION 9.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company
and not by the Trustee, and the Trustee assumes no responsibility
for the correctness thereof. The Trustee makes no representation
as to the validity or sufficiency of this First Supplemental
Indenture.
SECTION 9.3. Governing Law.
This First Supplemental Indenture and each Debenture
shall be deemed to be a contract made under the internal laws of
the State of New York, and for all purposes shall be construed in
accordance with the laws of said State.
SECTION 9.4. Separability.
In case any one or more of the provisions contained in
this First Supplemental Indenture or in the Debentures shall for
any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall
not affect any other provisions of this First Supplemental
Indenture or of the Debentures, but this First Supplemental
Indenture and the Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been
contained herein or therein.
SECTION 9.5. Counterparts.
This First Supplemental Indenture may be executed in
any number of counterparts each of which shall be an original;
22
but such counterparts shall together constitute but one and the
same instrument.
23
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and attested,
on the date or dates indicated in the acknowledgements and as of
the day and year first above written.
NORAM ENERGY CORP.
By________________________________
Name:
Title:
[Seal]
Attest:
By:______________________
[Name of Debt Trustee]
as Trustee
By_______________________________
Name:
Title:
Attest:
By:___________________
24