EXHIBIT 10.70
FISCAL AGENCY AGREEMENT
Between
NORTHERN NATURAL GAS COMPANY,
Issuer
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
Fiscal Agent
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Dated as of May 24, 1999
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7.00% Senior Notes due June 1, 2011
TABLE OF CONTENTS
Page
RECITALS OF THE ISSUER 1
1. The Securities 1
(a) General 1
(b) Form of Securities; Denominations of Securities 1
(c) Temporary Securities 2
(d) Legends 2
(e) Book-Entry Provisions 2
2. Fiscal Agent; Other Agents 3
3. Authentication 4
4. Payment and Cancellation 4
(a) Payment 4
(b) Cancellation 5
5. Exchange of Securities 5
6. Register; Record Date for Certain Actions 5
7. Delivery of Certain Information 7
(a) Non-Reporting Issuer 7
(b) Information After Two Years 7
(c) Periodic Reports 7
8. Conditions of Fiscal Agent's Obligations 8
(a) Compensation and Indemnity 8
(b) Agency 8
(c) Advice of Counsel 9
(d) Reliance 9
(e) Interest in Securities, etc. 9
(f) Certifications 9
(g) No Implied Obligations 9
(h) No Liability 10
(i) No Inquiry 10
(j) Agents 10
9. Resignation and Appointment of Successor 10
(a) Fiscal Agent and Paying Agent 10
(b) Resignation 10
(c) Successors 11
(d) Acknowledgment 11
(e) Merger, Consolidation, etc. 11
10. Payment of Taxes 11
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11. Amendments 12
(a) Approval 12
(b) Binding Nature of Amendments, Notice, Notations, etc. 12
(c) "Outstanding" Defined 13
12. GOVERNING LAW 13
13. Notices 13
14. Defeasance (Legal and Covenant) 14
(a) Issuer's Option to Effect Defeasance or Covenant
Defeasance 14
(b) Defeasance and Discharge 14
(c) Covenant Defeasance 14
(d) Conditions to Defeasance and Covenant Defeasance 15
(e) Deposit in Trust; Miscellaneous 16
(f) Reinstatement 17
15. Headings 17
16. Counterparts 17
17. Successors and Assigns 17
18. Separability Clause 17
EXHIBIT A - FORM OF SECURITY
ii
FISCAL AGENCY AGREEMENT ("Agreement"), dated as of May 24, 1999,
between NORTHERN NATURAL GAS COMPANY, a corporation duly organized under the
laws of the State of Delaware (the "Issuer"), and CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, a national banking association duly organized and existing under
the laws of the United States of America, as Fiscal Agent.
RECITALS OF THE ISSUER
The Issuer has duly authorized the creation of an issue of its 7.00%
Senior Notes due June 1, 2011 (herein called the "Securities") of substantially
the tenor and amount hereinafter set forth, and to provide therefor the Issuer
has duly authorized the execution and delivery of this Agreement.
All things necessary to make the Securities, when executed by the
Issuer and authenticated and delivered hereunder and duly issued by the Issuer,
the valid obligations of the Issuer, and to make this Agreement a valid
agreement of the Issuer, in accordance with their and its terms, have been done.
1. The Securities.
(a) General. The aggregate principal amount of Securities
which may be authenticated and delivered under this Agreement is limited to
$250,000,000 except for Securities authenticated and delivered upon registration
of transfer, or in exchange for, or in lieu of other Securities pursuant to the
provisions of this Agreement or the Securities.
The Securities shall be known and designated as the 7.00%
Senior Notes due June 1, 2011 of the Issuer. The Securities will be unsecured,
direct, unconditional and general obligations of the Issuer and will rank pari
passu with all other unsecured and unsubordinated indebtedness of the Issuer.
(b) Form of Securities: Denominations of Securities. The
Securities will be issued in registered form without coupons in substantially
the form of Exhibit A hereto and in minimum denominations of $100,000 and in
integral multiples of $1,000 in excess of $100,000. The Securities shall be
executed manually or in facsimile on behalf of the Issuer by its Chairman of the
Board, President or a Vice President and by its Secretary or an Assistant
Secretary (the "Authorized Officers"), notwithstanding that such officers, or
any of them, shall have ceased, for any reason, to hold such offices prior to
the authentication and delivery of such Securities or did not hold such offices
at the date of such Securities. The Securities may also have such additional
provisions, omissions, variations or substitutions as are not inconsistent with
the provisions of this Agreement and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with any law or with any rules made pursuant thereto or
with the rules of any securities exchange or governmental agency or as may
consistently herewith, be determined by the Authorized Officers of the Issuer
executing such Securities, as conclusively evidenced by their execution of such
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Securities. All of the Securities shall be otherwise substantially identical
except as to denominations of Securities and as provided herein.
(c) Temporary Securities. Until definitive Securities are
prepared, the Issuer may execute, and there shall be authenticated and delivered
in accordance with the provisions of Section 3 hereof (in lieu of definitive
printed Securities), temporary Securities. Such temporary Securities may be in
registered global form. Such temporary Securities shall be subject to the same
limitations and conditions and entitled to the same rights and benefits as
definitive Securities, except as provided herein or therein. Temporary
Securities shall be exchangeable for definitive Securities, when such definitive
Securities are available for delivery; and upon the surrender for exchange of
such temporary Securities, the Issuer shall execute and there shall be
authenticated and delivered in accordance with the provisions of Sections 5 and
6 hereof, in exchange for such temporary Securities, a like aggregate principal
amount of definitive Securities of like tenor. The Issuer shall pay all charges,
including (without limitation) stamp and other taxes and governmental charges,
incident to any exchange of temporary Securities for definitive Securities. All
temporary Securities shall be identified as such and shall describe the right of
the holder thereof to effect an exchange for definitive Securities and the
manner in which such an exchange may be effected.
(d) Legends. Securities shall be stamped or otherwise be
imprinted with the legends set forth on the face of the text of the Securities
attached as Exhibit A hereto and any legend pursuant to Section 1(d) or 1(e)
hereof. The legends so provided on the face of the text of the Securities may be
removed from any Security, upon written order signed in the name of the Issuer
by its Chairman of the Board, President or a Vice President and by its Secretary
or an Assistant Secretary and delivered to the Fiscal Agent ("Order"), (i) two
years from the later of issuance of the Security or the date such Security (or
any predecessor) was last acquired from an "affiliate" of the Issuer within the
meaning of Rule 144 under the Securities Act of 1933, as amended, (the "Act") or
(ii) in connection with a sale made pursuant to the volume (and other
restrictions) of Rule 144 under the Act following one year from such time,
provided that, if the legend is removed and the Security is subsequently held by
such an affiliate of the Issuer, the legend shall be reinstated. Any legends
provided pursuant to Sections 1(d) and (e) hereof may be removed as provided in
such Sections.
(e) Book-Entry Provisions. This Section 1(e) shall apply
only to global Securities deposited with or on behalf of a depository located in
the United States (a "U.S. Depository").
The Securities will be issued initially in the form of one or
more registered global Securities deposited with or on behalf of a U.S.
Depository, that (i) shall be registered in the name of the U.S. Depository for
such global Security or Securities or the nominee of such U.S. Depository, (ii)
shall be delivered by the Fiscal Agent to such U.S. Depository or pursuant to
such U.S. Depository's instruction and (iii) shall bear a legend substantially
to the following effect: "Unless this certificate is presented by an authorized
representative of [insert name and address of Depository] to the issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of [insert name of nominee of Depository], or
such other name as is requested by an authorized representative of [insert name
of Depository], and any payment hereon is made to [insert name of nominee of
Depository], any transfer, pledge or other use hereof for value or otherwise by
or to any person is wrongful, since the registered owner hereof [insert name of
nominee of Depository], has an interest herein."
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Members of, or participants in, a U.S. Depository ("Agent
Members") shall have no rights under this Agreement with respect to any global
Security held on their behalf by a U.S. Depository or under the global Security,
and such U.S. Depository may be treated by the Issuer, the Fiscal Agent; and any
agent of the Issuer, or the Fiscal Agent as the owner of such global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Issuer, the Fiscal Agent, or any agent of the Issuer, or the Fiscal
Agent, from giving effect to any written certification, proxy or other
authorization furnished by a U.S. Depository or impair; as between a U.S.
Depository and its Agent Members, the operation of customary practices governing
the exercise of the rights of a holder of any Security.
So long as the U.S. Depository is the registered owner of
Securities, the U.S. Depository will for all purposes of the Securities and this
Agreement be considered the sole owner or holder of such Securities. Until such
time as definitive Securities may be issued, beneficial owners of Securities
will not be entitled to have Securities registered in their names, will not
receive or be entitled to receive physical delivery of Securities in definitive
form, and will not be considered the owners or holders thereof under this
Agreement for any purpose.
If (i) the Issuer notifies the Fiscal Agent in writing that
the U.S. Depository is no longer willing or able to act as a depository and the
Issuer is unable to locate a qualified successor within 90 days or (ii) the
Issuer, at its option, notifies the Fiscal Agent in writing that it elects to
cause the issuance of Securities in definitive form, then, upon surrender by the
global Security holder of its global Security, Securities in such form will be
issued to each person that such global Security holder and the U.S. Depository
identifies as the beneficial owner of the related Securities. Upon such
issuance, the Fiscal Agent shall register such Securities in the name of, and
cause the same to be delivered to, such person or persons (or the nominee
thereof).
2. Fiscal Agent: Other Agents.
The Issuer hereby appoints Chase Bank of Texas, National Association
acting through its corporate trust office in Houston, Texas as fiscal agent of
the Issuer in respect of the Securities, upon the terms and subject to the
conditions herein set forth, and Chase Bank of Texas, National Association
hereby accepts such appointment. Chase Bank of Texas, National Association and
any successor or successors as such fiscal agent qualified and appointed in
accordance with Section 9 hereof are herein called the "Fiscal Agent." The
Fiscal Agent shall have the powers and authority granted to and conferred upon
it in the Securities and hereby and such further powers and authority to act on
behalf of the Issuer as may be mutually agreed upon by the Issuer and the Fiscal
Agent. All of the terms and provisions with respect to such powers and authority
contained in the Securities are subject to and governed by the terms and
provisions hereof.
The Issuer may appoint one or more agents (a "Paying Agent" or "Paying
Agents") for the payment (subject to applicable laws and regulations) of the
principal of and interest on the Securities, and one or more agents (a "Transfer
Agent" or Transfer Agents") for the transfer and exchange of Securities, at such
place or places as the Issuer may determine; provided, however, the Issuer shall
at all times maintain a Paying Agent or agent thereof and Transfer Agent or
agent thereof in the Borough of Manhattan, The City of New York (which Paying
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Agent and Transfer Agent may be the Fiscal Agent or any of its affiliates). The
Issuer initially appoints the Fiscal Agent as Paying Agent and Transfer Agent.
The Issuer shall promptly notify the Fiscal Agent of the name and address of
each Paying Agent and Transfer Agent appointed, and will notify the Fiscal Agent
of the resignation or termination of any Paying Agent or Transfer Agent. Subject
to the provisions of Section 9(c) hereof, the Issuer may vary or terminate the
appointment of any such Paying Agent or Transfer Agent at any time and from time
to time upon giving not less than 90 days' notice to such Paying Agent or
Transfer Agent, as the case may be, and to the Fiscal Agent.
The Issuer shall cause notice of any resignation, termination or
appointment of any Paying Agent or Transfer Agent or of the Fiscal Agent and of
any change in the office through which any such Agent will act to be given as
provided in the text of the Securities.
3. Authentication.
The Fiscal Agent is authorized, upon receipt of Securities duly
executed on behalf of the Issuer for the purposes of the original issuance of
the Securities, (i) to authenticate said Securities in an aggregate principal
amount not in excess of $250,000,000 and to deliver said Securities in
accordance with an Order or Orders and (ii) thereafter to authenticate and
deliver said Securities in accordance with the provisions hereinafter set forth.
The Fiscal Agent may, with the consent of the Issuer, appoint by an
instrument or instruments in writing one or more agents (which may include
itself) for the authentication of Securities and, with such consent, vary or
terminate any such appointment upon written notice and approve any change in the
office through which any authenticating agent acts. The Issuer (by written
notice to the Fiscal Agent and the authenticating agent whose appointment is to
be terminated) may also terminate any such appointment at any time. The Fiscal
Agent hereby agrees to solicit written acceptances from the entities concerned
(in form and substance satisfactory to the Issuer) of such appointments. In its
acceptance of such appointment, each such authenticating agent shall agree to
act as an authenticating agent pursuant to the terms and conditions of this
Agreement.
4. Payment and Cancellation.
(a) Payment. Subject to the following provisions, the
Issuer shall provide to the Fiscal Agent in funds available on or prior to each
date on which a payment of principal of or any interest on the Securities shall
become due, as set forth in the text of the Securities, such amount, in such
coin or currency, as is necessary to make such payment, and the Issuer hereby
authorizes and directs the Fiscal Agent from funds so provided to it to make or
cause to be made payment of the principal of and interest, as the case may be,
on the Securities set forth herein and in the text of the Securities.
Notwithstanding the foregoing, the Issuer may provide directly to a Paying Agent
funds for the payment of the principal thereof and premium and interest, if any,
payable thereon under an agreement with respect to such funds containing
substantially the same terms and conditions set forth in this Section 4(a) and
in Section 8(b) hereof; and the Fiscal Agent shall have no responsibility with
respect to any funds so provided by the Issuer to any such Paying Agent.
Any interest on the Securities shall be paid, unless otherwise
provided in the text of the Securities, to the persons (the "registered owners")
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in whose names such Securities are registered on the register maintained
pursuant to Section 6 hereof at the close of business on the record dates
designated in the text of the Securities. Payments of principal of Securities
shall be payable against surrender thereof at the corporate trust office or
office of an agent of the Fiscal Agent and at the offices of such other Paying
Agents as shall have been appointed pursuant to Section 2 hereof. Payments of
principal shall be made against surrender of Securities, and payments of
interest on Securities shall be made in accordance with the foregoing and
subject to applicable laws and regulations, by check mailed on or before the due
date for such payment to the person entitled thereto at such person's address
appearing on the register of the Securities maintained pursuant to Section 6
hereof, or, in the case of payments of principal, to such other address as the
registered owner shall provide in writing at the time of such surrender;
provided, however, that such payments may be made, in the case of a registered
owner of greater than $1,000,000 aggregate principal amount of Securities, by
transfer to an account maintained by the payee with a bank if such registered
owner so elects by giving notice to the Fiscal Agent, not less than 15 days (or
such fewer days as the Fiscal Agent may accept at its discretion) prior to the
date of the payments to be obtained, of such election and of the account to
which payment is to be made.
(b) Cancellation. All Securities delivered to the Fiscal
Agent (or any other Agent appointed pursuant to Section 2 hereof) for payment,
redemption, registration of transfer or exchange as herein or in the Securities
provided shall be forwarded to the Fiscal Agent by the Agent to which they are
delivered. All such Securities shall be canceled and destroyed by the Fiscal
Agent or such other person as may be jointly designated by the Issuer and the
Fiscal Agent which shall thereupon furnish certificates of such destruction to
the Issuer upon the Issuer's request.
5. Exchange of Securities.
The Fiscal Agent, or its agent duly authorized by the Fiscal Agent, is
hereby authorized from time to time in accordance with the provisions of the
Securities, Section 1(e) and of this Section to authenticate and deliver:
(i) Securities in exchange for or in lieu of Securities
of like tenor and of like form which become
mutilated, destroyed, stolen or lost; and
(ii) registered Securities of authorized denominations in
exchange for a like aggregate principal amount of
Securities of like tenor and of like form.
The Securities shall be dated the date of their authentication by the
Fiscal Agent. Each Security authenticated and delivered upon any transfer or
exchange for or in lieu of the whole or any part of any Security shall carry all
the rights if any, to interest accrued and unpaid and to accrue which were
carried by the whole or such part of such Security. Notwithstanding anything to
the contrary herein contained, such new Security shall be so dated that neither
gain nor loss in interest shall result from such transfer or exchange.
6. Register: Record Date for Certain Actions.
The Fiscal Agent, as agent of the Issuer, shall maintain at its
corporate trust office in Houston, Texas and at its agent's office in the
Borough of Manhattan, The City of New York, a register for the Securities for
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the registration and registration of transfers of the Securities. Upon
presentation for the purpose at the said office of the Fiscal Agent or its agent
of any Security, accompanied by a written instrument of transfer in the form
approved by the Issuer and the Fiscal Agent (it being understood that, until
notice to the contrary is given to holders of Securities, the Issuer and the
Fiscal Agent shall each be deemed to have approved the form of instrument of
transfer, if any, printed on any definitive Security), executed by the
registered holder, in person or by such holder's attorney thereunto duly
authorized in writing, such Security shall be transferred upon the register for
the Securities, and a new Security of like tenor shall be authenticated and
issued in the name of the transferee. Transfers and exchanges of Securities
shall be subject to Section 1(e), to such restrictions as shall be set forth in
the text of the Securities and to such reasonable regulations as may be
prescribed by the Issuer and the Fiscal Agent. Successive registrations and
registrations of transfers as aforesaid may be made from time to time as desired
and each such registration shall be noted on the Security register. No service
charge shall be made for any registration, registration of transfer or exchange
of Securities, but, except as otherwise provided herein with respect to the
exchange of temporary Securities for definitive Securities, the Fiscal Agent
(and any Transfer Agent or authenticating agent appointed pursuant to Section 2
or 3 hereof, respectively) may require payment of a sum sufficient to cover any
stamp or other tax or governmental charge in connection therewith and any other
amounts required to be paid by the provisions of the Securities.
Any Transfer Agent appointed pursuant to Section 2 hereof shall provide
to the Fiscal Agent such information as the Fiscal Agent may reasonably require
in connection with the delivery by such Transfer Agent of Securities in exchange
for other Securities.
Neither the Fiscal Agent nor any Transfer Agent shall be required to
make registrations of transfer or exchange of Securities during any periods set
forth in the text of the Securities.
Upon receipt by the Fiscal Agent of any written demand, request or
notice with respect to any matter on which the holders of Securities are
entitled to act under this Agreement, a record date shall be established for
determining holders of Outstanding Securities entitled to join in such demand,
request or notice, which record date shall be at the close of business on the
day the Fiscal Agent receives such demand, request or notice. The holders on
such record date, or their duly designated proxies, and only such persons, shall
be entitled to join in such demand, request or notice, whether or not such
holders remain holders after such record date; provided, however, unless the
holders of the requisite principal amount of the Outstanding Securities shall
have joined in such demand, request or notice prior to the day which is the
ninetieth day after such record date, such demand, request or notice shall
automatically and without further action by any holder be cancelled and of no
further effect. Nothing in this paragraph shall prevent a holder, or a proxy of
a holder, from giving, (i) after expiration of such 90-day period, a new demand,
request or notice identical to a demand, request or notice which has been
cancelled pursuant to the proviso in the preceding sentence or (ii) during any
such 90-day period, a new demand, request or notice contrary to or different
from such demand, request or notice, in either of which events a new record date
shall be established pursuant to the provisions of this paragraph.
The Issuer may, but shall not be obligated to, fix a record date for
the purpose of determining the persons entitled to consent to or approve any
action or waive any term, provision or condition of any covenant of this
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Agreement. If a record date is faxed, the holders on such record date, or their
duly designated proxies, and only such persons, shall be entitled to consent to
or approve any such action or waive any such term, provision, condition or
covenant, whether or not such holders remain holders after such record date;
provided, however, that unless such consent, waiver or approval is obtained from
the requisite principal amount of holders of Outstanding Securities, or their
duly designated proxies, prior to the date which is the ninetieth day after such
record date, any such consent, waiver or approval previously given shall
automatically and without further action by any holder be cancelled and of no
further effect.
7. Delivery of Certain Information.
(a) Non-Reporting Issuer. Subject to Section 7(b), as
long as the Issuer is not subject to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended ("Exchange Act"), at any time upon the request
of a registered holder of a Security, the Issuer, or the Fiscal Agent upon
request by and at the expense of the Issuer, will promptly furnish or cause to
be furnished "Rule 144A Information" (as defined below) with respect to the
Issuer to such holder or to a prospective purchaser of such Security designated
by such holder in order to permit compliance by such holder with Rule 144A under
the Act in connection with the resale of such Security by such holder. "Rule
144A Information" with respect to the Issuer shall be such information with
respect to it as is specified pursuant to Rule 144A(d)(4)(i) under the Act (or
any successor provision thereto) which, at the date of this Agreement, consists
of (x) a very brief statement of the nature of the business, products and
services of the Issuer, as the case may be, (which statement shall be as of a
date within 12 months prior to the date of the intended resale) and (y) the most
recent financial statements of the Issuer and its financial statements for the
two fiscal years preceding the period covered in the most recent financial
statements. Such financial statements of the Issuer shall include its balance
sheet (as of a date less than 16 months before the date of the intended resale)
and its profit and loss and retained earnings statements (for the twelve month
period preceding the date of such balance sheet and, if the balance sheet is not
as of a date less than six months before the date of the intended resale, the
most recent profit and loss and retained earnings statements shall be for the
period from the date of such balance sheet to a date less than six months before
the date of the intended resale) and shall be audited to the extent reasonably
available.
(b) Information After Two Years. Neither the Issuer, nor
the Fiscal Agent shall be required to furnish Rule 144A Information with respect
to the Issuer as contemplated by Sections 7(a) and 7(b), (x) to the holder or a
prospective purchaser of a Security in connection with any request made on or
after the date which is two years from the later of (i) the date such Security
(or any predecessor Security) was acquired from the Issuer or (ii) the date such
Security (or any predecessor Security) was last acquired from an "affiliate" of
the Issuer within the meaning of Rule 144 under the Act or (y) at any time to a
prospective purchaser located outside the United States who is not a "U.S.
person" within the meaning of Regulation S under the Act.
(c) Periodic Reports. So long as any Securities are
Outstanding (as defined in Section 11(c) hereof), the Issuer, or the Fiscal
Agent upon request by and at the expense of the Issuer, will furnish or cause to
be furnished to holders of Securities and to the Fiscal Agent, (i) at any time
when the Issuer is subject to Section 13 or 15(d) of the Exchange Act, copies of
its annual and quarterly reports to stockholders and of each report or
definitive proxy statement filed with the Securities and Exchange Commission
(the "Commission") under the Exchange Act, such reports or statements to be so
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furnished within 15 days after the due date for filing with the Commission, and
(ii) at any time when the Issuer is not subject to Section 13 or 15(d) of the
Exchange Act, (A) its annual financial statements prepared in accordance with
generally accepted accounting principles applied consistently (except as
otherwise noted therein) with those of the prior years (together with notes
thereto and a report thereon by an independent accounting firm of established
national reputation), such report to be so furnished as soon as reasonably
available and in any event within 120 days after the end of the fiscal year
covered thereby, (B) its unaudited comparative financial statements for each of
the first three fiscal quarters and the corresponding quarter of the prior year
prepared in accordance with generally accepted accounting principles applied
consistently (except as otherwise noted therein) with those of the most recent
annual financial statements (which unaudited statements and related notes may be
condensed to the extent permitted by Form 10-Q under the Exchange Act or any
successor form), such statements to be so furnished as soon as reasonably
available and in any event within 60 days after the end of the fiscal quarter
covered thereby, (C) any other interim reports or financial statements prepared
generally for its nonaffiliated investors or lenders, such reports or statements
to be so furnished concurrently with their distribution to such investors or
lenders, and (D) at each time of delivery of the financial statements in (A), an
Officers' Certificate stating whether or not to the best knowledge of the
signers thereof the Issuer is in default in the performance and observance of
any of the terms, provisions and conditions of the Securities or this Agreement
and, if the Issuer shall be in default, specifying all such defaults and the
nature and status thereof of which they may have knowledge.
8. Conditions of Fiscal Agent's Obligations.
The Fiscal Agent accepts its obligations herein set forth upon the
terms and conditions hereof, including the following, to all of which the Issuer
agrees and to all of which the rights of holders from time to time of Securities
are subject:
(a) Compensation and Indemnity. The Fiscal Agent shall be
entitled to reasonable compensation as agreed with the Issuer for all services
rendered by it, and the Issuer agrees promptly to pay such compensation and to
reimburse the Fiscal Agent for the reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred by it or its agents in connection with its
services hereunder. The Issuer also agrees to indemnify the Fiscal Agent for,
and to hold it harmless against, any loss, liability or expense, including,
without limitation, damages, fines, suits, actions, demands, penalties, costs,
out-of-pocket or incidental expenses, legal fees and expenses, and the allocated
costs and expenses of in-house counsel, incurred without negligence or willful
misconduct, arising out of or in connection with its acting as Fiscal Agent or
in any other capacity hereunder, as well as the reasonable costs and expenses of
defending against any claim of liability in the premises. The obligations of the
Issuer under this Section 9(a) shall survive payment of all the Securities or
the resignation or removal of the Fiscal Agent.
(b) Agency. In acting under this Agreement and in
connection with the Securities, the Fiscal Agent is acting solely as agent of
the Issuer and does not assume any responsibility for the correctness of the
recitals in the Securities (except for the correctness of the statement in its
certificate of authentication on the Securities) or any obligation or
relationship of agency or trust, for or with any of the owners or holders of the
Securities, except that all funds held by the Fiscal Agent for the payment of
principal of and any interest on the Securities shall be held in trust for such
owners or holders, as the case may be, as set forth herein and in the
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Securities; provided, however, that monies held in respect of the Securities
remaining unclaimed at the end of two years after the principal of or any
interest on the Securities shall have become due and payable (whether at
maturity or otherwise) and monies sufficient therefor shall have been duly made
available for payment shall, together with any interest made available for
payment thereon, be repaid to the Issuer upon Order. Upon such repayment, the
aforesaid trust with respect to the Securities shall terminate and all liability
of the Fiscal Agent and Paying Agents with respect to such funds shall thereupon
cease. with respect to the Securities shall terminate and all liability of the
Fiscal Agent and Paying Agents with respect to such funds shall thereupon cease.
(c) Advice of Counsel. The Fiscal Agent and any Paying
Agent or Transfer Agent appointed by the Issuer pursuant to Section 2 hereof may
consult with their respective counsel or other counsel satisfactory to them, and
the opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken or suffered by them hereunder in good
faith and without negligence and in accordance with such opinion.
(d) Reliance. The Fiscal Agent and any Paying Agent or
Transfer Agent appointed by the Issuer pursuant to Section 2 hereof each shall
be protected and shall incur no liability for or in respect of any action taken
or thing suffered by it in reliance upon any Security, notice, direction,
consent, certificate, affidavit, statement, or other paper or document believed
by it, in good faith and without negligence, to be genuine and to have been
passed or signed by the proper party or parties.
(e) Interest in Securities, etc. The Fiscal Agent, any
authenticating agent, and any Paying Agent or Transfer Agent appointed by the
Issuer pursuant to Section 2 hereof and their respective officers, directors and
employees may become the owners of, or acquire any interest in, any Securities,
with the same rights that they would have if they were not the Fiscal Agent,
such authenticating agent, such other Paying Agent or Transfer Agent or such
person, and may engage or be interested in any financial or other transaction
with the Issuer, and may act on, or as depository, trustee or agent for, any
committee or body of holders of Securities or other obligations of the Issuer,
as freely as if they were not the Fiscal Agent, such authenticating agent, such
other Paying Agent or Transfer Agent or such person. The provisions of this
Section 8(e) shall extend to affiliates of the Fiscal Agent, such authenticating
agent, any Paying Agent or any Transfer Agent.
(f) Certifications. Whenever in the administration of
this Agreement the Fiscal Agent shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action hereunder, the
Fiscal Agent (unless other evidence be herein specifically prescribed) may, in
the absence of bad faith or negligence on its part, rely upon a certificate
signed by any Authorized Officer of the Issuer and delivered to the Fiscal
Agent.
(g) No Implied Obligations. The duties and obligations of
the Fiscal Agent shall be determined solely by the express provisions of this
Agreement, and the Fiscal Agent shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this Agreement,
and no implied covenants or obligations shall be read into this Agreement
against the Fiscal Agent. In no event shall the Fiscal Agent be liable for any
lost profits, lost savings or other special, exemplary, consequential or
incidental damages.
-9-
(h) No Liability. The Fiscal Agent shall not be liable
for any interest on any funds held by the Fiscal Agent and shall never be
required to use, advance or risk its own funds or otherwise incur financial
liability in the performance of its duties hereunder.
(i) No Inquiry. The Fiscal Agent shall not be bound to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, covenants or agreements of the Securities or other documents on the
part of the Issuer or as to the existence of any event of default thereunder.
(j) Agents. The Fiscal Agent may execute any of its
trusts or powers or perform any duties under this Agreement either directly or
by or through agents or attorneys, may in all cases pay such reasonable
compensation as it deems proper to all such agents and attorneys reasonably
employed or retained by it, and shall not be responsible for any misconduct or
negligence of any agent or attorney appointed with due care by it.
9. Resignation and Appointment of Successor.
(a) Fiscal Agent and Paying Agent. The Issuer agrees, for
the benefit of the holders from time to time of the Securities, that there shall
at all times be a Fiscal Agent hereunder which shall be a bank or trust company
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, in good standing and having an
established place of business or agency in the Borough of Manhattan, The City of
New York, and authorized under such laws to exercise corporate trust powers
until all the Securities authenticated and delivered hereunder (i) shall have
been delivered to the Fiscal Agent for cancellation or (ii) become due and
payable and monies sufficient to pay the principal of and any interest on the
Securities shall have been made available for payment and either paid or
returned to the Issuer as provided herein and in such Securities.
(b) Resignation. The Fiscal Agent may at any time resign
by giving written notice to the Issuer of such intention on its part, specifying
the date on which its desired resignation shall become effective, provided that
such date shall not be less than three (3) months from the date on which such
notice is given, unless the Issuer agrees to accept shorter notice. The Fiscal
Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed on behalf of the Issuer and specifying such removal
and the date when it shall become effective. Notwithstanding the dates of
effectiveness of resignation or removal, as the case may be, to be specified in
accordance with the preceding sentences, such resignation or removal shall take
effect only upon the appointment by the Issuer of a successor Fiscal Agent
(which, to qualify as such, shall be a bank or trust company organized and doing
business under the laws of the United States of America, any state thereof or
the District of Columbia, in good standing and having and acting through an
established place of business or agency in the Borough of Manhattan, The City of
New York, authorized under such laws to exercise corporate trust powers and
having a combined capital and surplus in excess of U.S. $20,000,000) and the
acceptance of such appointment by such successor Fiscal Agent. Upon its
resignation or removal, the Fiscal Agent shall be entitled to payment by the
Issuer pursuant to Section 8 hereof compensation for services rendered and to
reimbursement of reasonable out-of-pocket expenses incurred hereunder.
-10-
(c) Successors. In case at any time the Fiscal Agent or
any Paying Agent in respect of the Securities (if such Paying Agent is the only
Paying Agent located in a place where, by the terms of the Securities or this
Agreement, the Issuer is required to maintain a Paying Agent) shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make
an assignment for the benefit of its creditors or consent to the appointment of
a receiver of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they severally mature, or if a
receiver of it or of any substantial part of its property shall be appointed, or
if an order of any court shall be entered approving any petition filed by or
against it under the provisions of the Federal Bankruptcy Act or under the
provisions of any similar legislation, or if a receiver of it or its property
shall be appointed, or if any public officer shall take charge or control of it
or of its property or affairs, for the purpose or rehabilitation, conservation
or liquidation, a successor Fiscal Agent or Paying Agent, as the case may be,
qualified as aforesaid, shall be appointed by the Issuer by an instrument in
writing, filed with the successor Fiscal Agent or Paying Agent, as the case may
be, and the predecessor Fiscal Agent or Paying Agent, as the case may be. Upon
the appointment as aforesaid of a successor Fiscal Agent or Paying Agent, as the
case may be, and acceptance by such successor of such appointment, the Fiscal
Agent or Paying Agent, as the case may be, so succeeded shall cease to be Fiscal
Agent or Paying Agent, as the case may be, hereunder. If no successor Fiscal
Agent or other Paying Agent, as the case may be, shall have been so appointed by
the Issuer and shall have accepted appointment as hereinafter provided, and, in
the case of such other Paying Agent, if such other Paying Agent is the only
Paying Agent located in a place where, by the terms of the Securities of this
Agreement, the Issuer is required to maintain a Paying Agent, then any holder of
a Security who has been a bona fide holder of a Security for at least six
months, on behalf of such holder and all others similarly situated, or the
Fiscal Agent may petition any court of competent jurisdiction for the
appointment of a successor agent. The Issuer shall give prompt written notice to
each other Paying Agent of the appointment of a successor Fiscal Agent.
(d) Acknowledgment. Any successor Fiscal Agent appointed
hereunder shall execute, acknowledge and deliver to its predecessor and to the
Issuer an instrument accepting such appointment hereunder, and thereupon such
successor Fiscal Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts, immunities, duties
and obligations of such predecessor with like effect as if originally named as
Fiscal Agent hereunder, and such predecessor, upon payment of its compensation,
and reimbursement of its disbursements then unpaid, shall thereupon become
obligated to transfer, delivery and pay over, and such successor Fiscal Agent
shall be entitled to receive, all monies, securities, books, records or other
property on deposit with or held by such predecessor as Fiscal Agent hereunder.
(e) Merger, Consolidation, etc. Any corporation into
which the Fiscal Agent hereunder may be merged, or any corporation resulting
from any merger or consolidation to which the Fiscal Agent shall be a party, or
any corporation to which the Fiscal Agent shall sell or otherwise transfer all
or substantially all of the corporate trust business of the Fiscal Agent,
provided that it shall be qualified as aforesaid, shall be the successor Fiscal
Agent under this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
10. Payment of Taxes.
-11-
The Issuer will pay all stamp and other duties, if any, which may be
imposed by the United States of America or any political subdivision thereof or
taxing authority of or in the foregoing with respect to this Agreement or the
issuance of the Securities.
11. Amendments.
(a) Approval. With the written consent of the registered
owners of not less than a majority in aggregate principal amount of the
Securities then Outstanding (or of such other percentage as may be set forth in
the text of the Securities with respect to the action being taken), the Issuer
and the Fiscal Agent may modify, amend or supplement the terms of the Securities
and this Agreement in any way, and the holders of Securities may make, take or
give any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Agreement or the Securities to be made, given or
taken by holders of Securities; provided, however, that no such action may,
without the consent of the holder of each Security affected thereby, (A) change
the due date for the payment of the principal of or any installment of interest
on any Security, (B) reduce the principal amount of any Security or the interest
rate thereon or any premium payable upon the redemption thereof, (C) change the
coin or currency in which or the place at which payment with respect to interest
or principal in respect of Securities are payable as required by the proviso of
the first sentence of the second paragraph of Section 2 hereof, or (D) reduce
the proportion of the principal amount of Securities, the consent of the holders
of which is necessary to modify, amend or supplement this Agreement or the terms
and conditions of the Securities or to make, take or give any request, demand,
authorization, direction, notice, consent, waiver or other action provided
hereby or thereby to be made, taken or given. The Issuer and the Fiscal Agent
may, without the consent of any holder of Securities, amend this Agreement or
the Securities for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective provision thereof, hereof, or in any manner which
the Issuer and the Fiscal Agent may determine that shall not be inconsistent
with the Securities and shall not adversely affect the interest of any holder of
Securities.
It shall not be necessary for the consent of the holders of
Securities to approve the particular form of any proposed modification,
amendment, supplement, request, demand, authorization, direction, notice,
consent, waiver or other action, but it shall be sufficient if such consent
shall approve the substance thereof.
(b) Binding Nature of Amendments, Notice, Notations, etc.
Any instrument given by or on behalf of any holder of a Security in connection
with any consent to any such modification, amendment, supplement, request,
demand, authorization, direction, notice, consent, waiver or other action will
be irrevocable once given and will be conclusive and binding on all subsequent
holders of such Security or any Security issued directly or indirectly in
exchange or substitution therefore or in lieu thereof. Any such modification,
amendment, supplement, request, demand, authorization, direction, notice,
consent, waiver or other action will be conclusive and binding on all holders of
Securities, whether or not they have given such consent, and whether or not
notation of such modification, amendment, supplement, request, demand,
authorization, direction, notice, consent, waiver or other action is made upon
the Securities. Notice of any modification or amendment of, supplement to, or
request, demand, authorization, direction, notice, consent, waiver or other
action with respect to the Securities or this Agreement (other than for purposes
-12-
of curing any ambiguity or of curing, correcting or supplementing any defective
provision hereof or thereof) shall be given to each holder of Securities
affected thereby, in all cases as provided in the Securities.
Securities authenticated and delivered after the effectiveness
of any such modification, amendment, supplement, request, demand, authorization,
direction, notice, consent, waiver or other action may bear a notation in the
form approved by the Fiscal Agent and the Issuer as to any matter provided for
in such modification, amendment, supplement, request, demand, authorization,
direction, notice, consent, waiver or other action. New Securities modified to
conform, in the opinion of the Fiscal Agent and the Issuer, to any such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action may be prepared by the Issuer,
authenticated by the Fiscal Agent (or any authenticating agent appointed
pursuant to Section 3 hereof) and delivered in exchange for Outstanding
Securities.
(c) "Outstanding" Defined. For purposes of the provisions
of this Agreement and the Securities, any Security authenticated and delivered
pursuant to this Agreement shall, as of any date of determination, be deemed to
be "Outstanding", except:
(i) Securities theretofore canceled by the Fiscal Agent or
delivered to the Fiscal Agent for cancellation or held by the
Fiscal Agent for reissuance but not reissued by the Fiscal
Agent;
(ii) Securities which have become due and payable at maturity or
otherwise and with respect to which monies sufficient to pay
the principal thereof and any interest thereon shall have been
made available to the Fiscal Agent; or
(iii) Securities which have been defeased pursuant to Section 14(b)
hereof; or
(iv) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered
pursuant to this Agreement;
provided, however, that in determining whether the holders of the requisite
principal amount of Outstanding Securities have consented to any request,
demand, authorization, direction, notice, consent, waiver, amendment,
modification or supplement hereunder, Securities owned directly or indirectly by
the Issuer or any affiliate of the Issuer shall be disregarded and deemed not to
be Outstanding.
12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
13. Notices.
All notices or communications hereunder, except as herein otherwise
specifically provided, shall be in writing and if sent to the Fiscal Agent shall
be delivered, transmitted by facsimile, telexed or telegraphed to it at 600
-13-
ββββββ Street, Suite 1150, βββββββ, βββββ βββββ, Attention: Global Trust
Services, facsimile no. (βββ) βββ-ββββ or if sent to the Issuer shall be
delivered, transmitted by facsimile, telexed or telegraphed to it at ββββ βββββ
ββββββ, βββββββ, βββββ βββββ, Attention: Vice President, Finance and Accounting,
facsimile no. (βββ) βββ-ββββ. The foregoing addresses for notices or
communications may be changed by written notice given by the addressee to each
party hereto, and the addressee's address shall be deemed changed for all
purposes from and after the giving of such notice.
If the Fiscal Agent shall receive any notice or demand addressed to the
Issuer by the holder of a Security, the Fiscal Agent shall promptly forward such
notice or demand to the Issuer.
14. Defeasance (Legal and Covenant).
(a) Issuer's Option to Effect Defeasance or Covenant
Defeasance. The Issuer may at its option, by Order of the Issuer delivered to
the Fiscal Agent, elect to have either Section 14(b) or Section 14(c) applied to
the Outstanding Securities upon compliance with the conditions set forth below
in this Section 14.
(b) Defeasance and Discharge. Upon exercise by the Issuer
of the option provided in Section 14(a) applicable to this Section 14(b), the
Issuer shall be deemed to have been discharged from its obligations with respect
to the Outstanding Securities on the date the conditions set forth below are
satisfied (hereinafter, "Defeasance"). For this purpose, such Defeasance means
that the Issuer shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Securities and to have satisfied all
its other obligations under such Securities and this Agreement insofar as the
Securities are concerned (and the Issuer and the Fiscal Agent shall execute
proper instruments acknowledging the same), except for the following, which
shall survive until otherwise terminated or discharged hereunder: (i) the rights
of holders of the Securities to receive, solely from the trust fund described in
Section 14(d) and as more fully set forth in such Section, payments in respect
of the principal of and any interest on the Securities when such payments are
due, (ii) the Issuer's obligations with respect to the Securities under Sections
1(d), 2, 4(a), 5, 6, 7(a), 7(b) and 9 of this Agreement and paragraphs 3, 4(a),
9 (insofar as it relates to Sections 7(a) and 7(b) of this Agreement), 10 and 11
of the Securities and (iii) this Section 14. Subject to compliance with this
Section 14, the Issuer may exercise its option under this Section 14(b)
notwithstanding the prior exercise of its option under Section 14(c).
(c) Covenant Defeasance. Upon the Issuer's exercise of
the option provided in Section 14(a) applicable to this Section 14(c), the
Issuer shall be released from its obligations under paragraphs 6(c), 7, and
8(a)(iii) of the Securities on and after the date the conditions set forth below
are satisfied (hereinafter, "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that the Issuer may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such Section, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of the Issuer's obligations shall be unaffected thereby.
-14-
(d) Conditions to Defeasance and Covenant Defeasance. The
following shall be the conditions to application of either Section 14(b) or
Section 14(c) to the then Outstanding Securities:
(i) The Issuer shall irrevocably have deposited or caused to be
deposited with a trustee, who may be the Fiscal Agent and who
shall agree to comply with the provisions of this Section 14
applicable to it (the "Defeasance Trustee"), as trust funds in
trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to,
the benefit of the holders of the Securities, (A) money in an
amount, or (B) U.S. Government Obligations and/or Eligible
Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certifi-
cation thereof delivered to the Defeasance Trustee, to pay and
discharge, and which shall be applied by the Defeasance
Trustee to pay and discharge, the principal of and each
installment of interest on the Securities not later than one
day before the stated maturity of such principal or install-
ment of interest in accordance with the terms of this Agree-
ment and of the Securities. For this purpose; "U.S. Government
Obligations" means securities that are (x) direct obligations
of the United States of America for the payment of which its
full faith and credit are pledged or (y) obligations of a
person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Act) as
custodian with respect to any such U.S. Government Obligation
or a specific payment of principal of or interest on any such
U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt, provided
that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest
on the U.S. Government Obligation evidenced by such depository
receipt; and "Eligible Obligations" means interest bearing
obligations as a result of the deposit of which the Securities
are rated in the highest generic long-term debt rating
category assigned to legally defeased debt by one or more
nationally recognized rating agencies.
(ii) In the case of an election under Section 14(b), the Issuer
shall have delivered to the Defeasance Trustee an opinion of
counsel stating that (x) the Issuer has received from, or
there has been published by, the U.S. Internal Revenue Service
a ruling, or (y) since the date of this Agreement there has
been a change in the applicable U.S. Federal income tax law,
in either case to the effect that, and based thereon such
opinion shall confirm that, the holders of the Outstanding
Securities will not recognize gain or loss for U.S. Federal
income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to U.S. Federal income tax
-15-
on the same amount, in the same manner and at the same times
as would have been the case if such deposit defeasance and
discharge had not occurred.
(iii) In the case of an election under Section 14(c), the Issuer
shall have delivered to the Defeasance Trustee an opinion of
counsel to the effect that the holders of the Outstanding
Securities will not recognize gain or loss for Federal income
tax purposes as a result of such deposit and covenant
defeasance and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would
have been the case if such deposit and covenant defeasance had
not occurred.
(iv) No event of default under paragraph 6 of the Securities or
event which with notice or lapse of time or both would become
such an event of default shall have occurred and be continuing
on the date of such deposit or, insofar as paragraphs 6(d) and
(e) of the Securities are concerned, at any time during the
period ending on the 121st day after the date of such deposit
(it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(v) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, any
other agreement or instrument to which the Issuer is a party
or by which it is bound.
(vi) The Issuer shall have delivered to the Fiscal Agent and the
Defeasance Trustee an Officers' Certificate and an opinion of
counsel, each stating that all conditions precedent provided
for relating to either the defeasance under Section 14(b) or
the covenant defeasance under Section 14(c) (as the case may
be) have been complied with.
(vii) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment
company as defined in the Investment Company Act of 1940, as
amended, or such trust shall be qualified under such act or
exempt from regulation thereunder.
(e) Deposit in Trust: Miscellaneous. All money, U.S.
Government Obligations and Eligible Obligations (including the proceeds thereof)
deposited with the Defeasance Trustee pursuant to Section 14(d) in respect of
the Securities shall be held in trust and applied by the Defeasance Trustee, in
accordance with the provisions of the Securities and this Agreement, to the
payment, either directly or through any Paying Agent as the Defeasance Trustee
may determine, to the holders of the Securities, of all sums due and to become
due thereon in respect of principal and any interest, but such money need not be
segregated from other funds except to the extent required by law. Any money
deposited with the Defeasance Trustee for the payment of the principal of or any
interest on any Security and remaining unclaimed for two years after such
principal or interest has become due and payable shall be paid to the Issuer
upon Order, and the holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Issuer for payment thereof, and all liability
of the Defeasance Trustee with respect to such trust money shall thereupon
cease.
-16-
The Issuer shall pay and indemnify the Defeasance Trustee
against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations or Eligible Obligations deposited pursuant to Section
14(d) or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the holders of
the Outstanding Securities.
Anything in this Section 14 to the contrary notwithstanding,
the Defeasance Trustee shall deliver or pay to the Issuer from time to time upon
the request of the Issuer any money, U.S. Government Obligations or Eligible
Obligations held by it as provided in Section 14(d) which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Defeasance Trustee, are in excess
of the amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance.
(f) Reinstatement. If the Defeasance Trustee is unable to
apply any money in accordance with Section 14(b) or 14(c) by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Issuer's obligations under this
Agreement and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Section 14 until such time as the
Defeasance Trustee is permitted to apply all such money in accordance with
Section 14(b) or 14(c); provided, however, that if the Issuer makes any payment
of principal of or interest on any Security following the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the holders of such
Securities to receive such payment from the money held by the Defeasance
Trustee.
15. Headings.
The section headings herein are for convenience only and shall not
affect the construction hereof.
16. Counterparts.
This Agreement may be executed in one or more counterparts, and by each
party separately on a separate counterpart, and each such counterpart when
executed and delivered shall be deemed to be an original. Such counterparts
shall together constitute one and the same instrument.
17. Successors and Assigns.
All covenants and agreements in this Agreement by the Issuer shall bind
its respective successors and assigns, whether so expressed or not.
18. Separability Clause.
In case any provision in this Agreement or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
-17-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
NORTHERN NATURAL GAS COMPANY
By: /s/ ββββββ β. Fastuca
---------------------
Name: ββββββ β. Fastuca
Title: Vice President, Finance and
Accounting
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
as Fiscal Agent
By: /s/ βββββ β. ββββββ
-------------------
Authorized Signatory
-18-
EXHIBIT A
FORM OF SECURITY
[Form of Face
of Security]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM AND IN ANY
EVENT MAY BE SOLD OR OTHERWISE TRANSFERRED ONLY IN ACCORDANCE WITH THE FISCAL
AGENCY AGREEMENT, COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE CORPORATE
TRUST OFFICE OF THE FISCAL AGENT. THE EXEMPTION PROVIDED BY RULE 144A UNDER THE
ACT MAY BE AVAILABLE TO PERMIT SALE OR TRANSFER OF THIS SECURITY TO QUALIFIED
INSTITUTIONAL BUYERS (WITHIN THE MEANING OF RULE 144A) WITHOUT REGISTRATION.
EACH HOLDER OF THIS SECURITY REPRESENTS TO THE ISSUER THAT (A) SUCH
HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY (WITHOUT CONSENT OF THE
ISSUER) PRIOR TO TWO YEARS FROM THE LATER OF MAY 27, 1999 OR THE DATE ON WHICH
THIS SECURITY WAS LAST HELD BY AN AFFILIATE OF THE ISSUER OTHER THAN (I) TO A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A, (II) TO
A NON-U.S. PERSON IN A TRANSACTION COMPLYING WITH REGULATION S UNDER THE ACT,
(III) FOLLOWING ONE YEAR FROM SUCH TIME, IN A TRANSACTION COMPLYING WITH RULE
144 UNDER THE ACT, OR (IV) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE ACT (IT BEING UNDERSTOOD THAT AS A CONDITION TO THE
REGISTRATION OF TRANSFER OF THIS SECURITY, THE ISSUER OR THE FISCAL AGENT MAY,
IN CIRCUMSTANCES THEY BELIEVE APPROPRIATE, REQUIRE EVIDENCE AS TO COMPLIANCE
WITH ANY SUCH EXEMPTION) AND THAT (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, ββ βββββ ββββββ, ββββ βββββ, βββ ββββ, βββ ββββ
βββββ-ββββ, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DEPOSITORY
TRUST COMPANY, AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER,
A-1
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE FOREGOING LEGENDS MAY BE REMOVED FROM THE SECURITIES ON THE
CONDITIONS SPECIFIED IN THE FISCAL AGENCY AGREEMENT.
A-2
No. RA-.......... [Denomination]
NORTHERN NATURAL GAS COMPANY
7.00% Senior Notes due June 1, 2011
NORTHERN NATURAL GAS COMPANY, a corporation duly organized under the
laws of the State of Delaware (herein called the "Issuer"), for value received,
hereby promises to pay to __________________________ or registered assigns, the
principal sum of ________________ on ___________________ and to pay interest
thereon from May 27, 1999, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually in arrears on
June 1 and December 1 in each year, commencing December 1, 1999 (each an
"Interest Payment Date"), at the rate of 7.00% per annum, until the principal
hereof is paid or made available for payment and (to the extent that the payment
of such interest shall be legally enforceable) at the rate per annum equal to
the above rate plus 1% per annum on any overdue principal and on any overdue
installment of interest. Interest on the Securities shall be computed on the
basis of a 360-day year of twelve 30-day months. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Fiscal Agency Agreement hereinafter referred to, be paid to the
person (the "registered holder") in whose name this Security (or one or more
predecessor Securities) is registered at the close of business on May 15 or
November 15 (whether or not a business day), as the case may be (each a "Regular
Record Date"), next preceding such Interest Payment Date. Any such interest no
so punctually paid or duly provided for will forthwith cease to be payable to
the registered holder on such Regular Record Date and shall be paid to the
person in whose name this Security (or one or more predecessor Securities) is
registered at the close of business on a special record date for the payment of
such interest to be fixed by the Issuer, notice whereof shall be given to
registered holders of Securities not less than 10 days prior to such special
record date.
Principal of this Security shall be payable against surrender hereof at
the corporate trust office or office of an agent of the Fiscal Agent hereinafter
referred to or at such other offices or agencies as the Issuer may designate and
at the offices of such other Paying Agents as the Issuer shall have appointed
pursuant to the Fiscal Agency Agreement. Payments of principal shall be made
against surrender of this Security, and payments of interest on this Security
shall be made, in accordance with the foregoing and subject to applicable laws
and regulations, by check mailed on or before the due date for such payment to
the person entitled thereto at such person's address appearing on the
aforementioned register or, in the case of payments of principal to such other
address as the registered holder may specify upon such surrender; provided
however, that any payments shall be made, in the case of a registered holder of
at least $1,000,000 aggregate principal amount of Securities, by transfer to an
account maintained by the payee with a bank if such registered holder so elects
by giving notice to the Fiscal Agent, not less than 15 days (or such fewer days
as the Fiscal Agent may accept at its discretion) prior to the date of the
payments to be obtained, of such election and of the account to which payments
are to be made. The Issuer covenants that until this Security has been delivered
to the Fiscal Agent for cancellation, or monies sufficient to pay the principal
of and interest on this Security have been made available for payment and either
paid or returned to the Issuer as provided herein, it will at all times maintain
A-3
an established place of business or agency in the Borough of Manhattan, The City
of New York for the payment of the principal of and interest on the Securities
as herein provided.
Reference is hereby made to the further provisions of this Security set
forth on the following pages hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Fiscal Agent by manual signature, this Security shall not be valid or
obligatory for any purpose.
A-4
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed and its corporate seal to be affixed hereto.
Date: NORTHERN NATURAL GAS COMPANY
By:_________________________________
ββββββ β. Fastuca
Vice President, Finance and
Accounting
[Corporate Seal]
Attest:
______________________________________
Vice President and Assistant Secretary
This is one of the Securities referred to in the within-mentioned
Fiscal Agency Agreement.
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION,
as Fiscal Agent
By:_________________________________
Date of Authentication: _________________
A-5
[Form of reverse
of Security]
1. This Security is one of a duly authorized issue of securities of the
Issuer designated as its 7.00% Senior Notes due June 1, 2011 (herein called the
"Securities"), limited in aggregate principal amount to $250,000,000, issued and
to be issued in accordance with a Fiscal Agency Agreement, dated as of May 24,
1999 (herein called the "Fiscal Agency Agreement"), between the Issuer and Chase
Bank of Texas, National Association, as Fiscal Agent (herein called the "Fiscal
Agent", which term includes any successor fiscal agent under the Fiscal Agency
Agreement), copies of which Fiscal Agency Agreement are on file and available
for inspection at the corporate trust office of the Fiscal Agent which at the
date hereof is at βββ ββββββ ββββββ, βββββ ββββ, βββββββ, βββββ βββββ.
The Securities are unsecured direct, unconditional and general
obligations of the Issuer and will rank equally with all other unsecured and
unsubordinated indebtedness of the Issuer:
2. The Securities are issuable only in fully registered form, without
coupons, in minimum denominations of U.S. $100,000 and integral multiples of
$1,000 above that amount.
3. The Issuer shall maintain in the Borough of Manhattan, The City of
New York, an established place of business or agency where Securities may be
surrendered for registration of transfer or exchange. The Issuer has initially
appointed the Fiscal Agent acting through its corporate trust office in Houston,
Texas and at its agent's office in the Borough of Manhattan, The City of New
York, as their agent for such purpose and the Issuer has agreed to cause to be
kept at such offices a register in which, subject to such reasonable regulations
as it may prescribe, the Issuer will provide for the registration of Securities
and of transfers of Securities. The Issuer reserves the right to vary or
terminate the appointment of the Fiscal Agent as security registrar or of any
Transfer Agent or to appoint additional or other registrars or Transfer Agents
or to approve any change in the office through which any security registrar or
any Transfer Agent acts, provided that there will at all times be a security
registrar or agent thereof in the Borough of Manhattan, The City of New York.
Registered holders of the Securities will receive notice of any such change.
The transfer of a Security is registrable on the aforementioned
register upon surrender of such Security at the corporate trust office of the
Fiscal Agent or the office of the agent of the Fiscal Agent or any Transfer
Agent duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Issuer and the Fiscal Agent duly executed by, the
registered holder thereof or such holder's attorney duly authorized in writing.
Upon such surrender of this Security for registration of transfer, the Issuer
shall execute, and the Fiscal Agent shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities, dated
the date of authentication thereof, of any authorized denominations and of a
like aggregate principal amount.
At the option of the registered holder upon request confirmed in
writing, Securities may be exchanged for Securities of any authorized
denominations and of a like tenor, form and aggregate principal amount upon
surrender of the Securities to be exchanged at the office of any Transfer Agent
or at the corporate trust office of the Fiscal Agent or agent thereof. Whenever
A-6
any Securities are so surrendered for exchange, the Issuer shall execute, and
the Fiscal Agent shall authenticate and deliver, the Securities which the
registered holder making the exchange is entitled to receive. Any registration
of transfer or exchange will be effected upon the Transfer Agent or the Fiscal
Agent, as the case may be, being satisfied with the documents of title and
identity of the person making the request and subject to such reasonable
regulations as the Issuer may from time to time agree with the Transfer Agent
and the Fiscal Agent.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations, of the Issuer evidencing the same
debt, and entitled to the same benefits, as the Securities surrendered upon such
registration of transfer or exchange. No service charge shall be made for any
registration of transfer or exchange, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal Agent may
treat the person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Issuer, the Fiscal Agent nor any such agent shall be affected by notice to the
contrary.
4. (a) The Issuer shall pay to the Fiscal Agent at its
principal office in Houston, Texas on or prior to each Interest Payment Date and
the maturity date of the Securities, in such amounts sufficient (with any
amounts then held by the Fiscal Agent and available for the purpose) to pay the
interest on and the principal of the Securities due and payable on such Interest
Payment Date or maturity date, as the case may be in funds available on such
date. The Fiscal Agent shall apply the amounts so paid to it to the payment of
such interest and principal in accordance with the terms of the Securities. Any
monies paid by the Issuer to the Fiscal Agent for the payment of the principal
of or interest on any Securities and remaining unclaimed at the end of two years
after such principal or interest shall have become due and payable (whether at
maturity or otherwise) shall then be repaid to the Issuer upon its written
request, and upon such repayment all liability of the Fiscal Agent with respect
thereto shall cease, without, however, limiting in any way any obligation the
Issuer may have to pay the principal of and interest on this Security as the
same shall become due.
(b) In any case where the due date for the payment of the
principal of or interest on any Security shall be at any place of payment a day
on which banking instructions are authorized or obligated by law to close, then
payment of principal or interest need not be made on such date at such place but
may be made on the next succeeding day at such place which is not a day on which
banking institutions are authorized or obligated by law to close, with the same
force and effect as if made on the date for such payment and no interest shall
accrue for the period after such date.
5. The Issue shall pay all stamp and other duties, if any, which may be
imposed by the United States or any political subdivision thereof or taxing
authority of or in the foregoing with respect to the Fiscal Agency Agreement or
the issuance of this Security. Except as otherwise provided in this Security,
the Issuer shall not be required to make any payment with respect to any tax,
assessment or other governmental charge imposed by any government or any
political subdivision or taxing authority thereof or therein.
6. In the event of:
A-7
(i) default in the payment of any interest on any Security for
a period of 30 days after the date when due; or
(ii) default in the payment of the principal of any Security
when due (whether at maturity or otherwise); or
(iii) default in the performance or breach of any other
covenant or agreement of the Issuer contained in the Securities or in
the Fiscal Agency Agreement for a period of 60 days after the date on
which written notice of such default requiring the Issuer to remedy the
same and stating that such notice is a "Notice of Default" shall first
have been given to the Issuer and the Fiscal Agent by the holders of at
least 25% in principal amount of the Securities at the time Outstanding
(as defined in the Fiscal Agency Agreement); or
(iv) the entry by a court having jurisdiction in the premises
of (1) a decree or order for relief in respect of the Issuer in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (2) a
decree or order adjudging the Issuer bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Issuer
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Issuer or of any substantial part of the property of
the Issuer, or ordering the winding up or liquidation of the affairs of
the Issuer, and any such decree or order for relief or any such other
decree or order shall continue unstayed and in effect for a period of
60 consecutive days; or
(v) commencement by the Issuer of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
the Issuer to the entry of a decree or order for relief in respect of
the Issuer in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against the Issuer, or the filing by the Issuer of a
petition or answer or consent seeking reorganization or relief under
any such applicable Federal or State law, or the consent by the Issuer
to the filing of such petition or to the appointment of or the taking
possession by a custodian, receiving, liquidator, assignee, trustee,
sequestrator or other similar official of the Issuer or of any
substantial part of its property, or the making by the Issuer of an
assignment for the benefit of creditors, or the taking of action by the
Issuer in furtherance of any action;
the registered holder of this Security may, at such holder's option, declare the
principal of this Security and the interest accrued hereon to be due and payable
immediately by written notice to the Issuer and the Fiscal Agent at its
corporate trust office, and unless all such defaults shall have been cured by
the Issuer prior to receipt of such written notice, the principal of the
Security and the interest accrued thereon shall become and be immediately due
and payable. For purposes of the Securities, "Subsidiary" of the Issuer means a
corporation all of the outstanding voting stock of which is owned, directly or
indirectly, by the Issuer or by one or more other Subsidiaries. For the purposes
A-8
of this definition, "voting stock" means stock which ordinarily has voting power
for the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
7. So long as any of the Securities are Outstanding, the Issuer will
not pledge, mortgage or hypothecate, or permit to exist, and will not cause,
suffer or permit any Subsidiary of it to pledge, mortgage or hypothecate, or
permit to exist, except in favor of the Issuer or any Subsidiary of it, any
mortgage, pledge or other lien upon, any Principal Property (as hereinafter
defined) at any time owned by it, to secure any Indebtedness (as hereinafter
defined) of it, without making effective provision whereby the Outstanding
Securities shall be equally and ratably secured with any and all such
Indebtedness of the Company and with any other Indebtedness of it similarly
entitled to be equally and ratably secured; provided, however, that this
restriction shall not apply to or prevent the creation or existence of:
(i) undetermined or inchoate liens and charges incidental to
construction, maintenance, development or operation;
(ii) any liens of taxes and assessments for the then current
year;
(iii) any liens of taxes and assessments not at the time
delinquent;
(iv) any liens of specified taxes and assessments which are
delinquent but the validity of which is being contested in good faith
at the time by the Issuer or any Subsidiary of it;
(v) any liens reserved in leases for rent and for compliance
with the terms of the lease in the case of leasehold estates;
(vi) any obligations or duties, affecting the property of the
Issuer or any Subsidiary of it, to any municipality or public authority
with respect to any franchise, grant, license, permit or similar
arrangement;
(vii) the liens of any judgments or attachments in an
aggregate amount not in excess of $10,000,000, or the lien of any
judgment or attachment the execution or enforcement of which has been
stayed or which has been appealed and secured, if necessary, by the
filing of an appeal bond;
(viii) any mortgage, pledge, lien or encumbrance on any
property held or used by the Issuer or any Subsidiary of it in
connection with the exploration for, development of or production of
oil, gas, natural gas (including liquified gas and storage gas), other
hydrocarbons, helium, coal, metals, minerals, steam, timber, geothermal
or other natural resources or synthetic fuels, such properties to
include, but not be limited to, the interest of the Issuer or such
Subsidiary in any mineral fee interests, oil, gas or other mineral
leases, royalty, overriding royalty or net profits interests,
production payments and other similar interests, wellhead production
A-9
equipment, tanks, field gathering lines, leasehold or field separation
and processing facilities, compression facilities and other similar
personal property and fixtures;
(ix) any mortgage, pledge, lien or encumbrance on oil, gas,
natural gas (including liquefied gas and storage gas), and other
hydrocarbons, helium, coal, metals, minerals, steam, timber, geothermal
or other natural resources or synthetic fuels produced or recovered
from any property, an interest in which is owned or leased by the
issuer or any Subsidiary of it;
(x) mortgages, pledges, liens or encumbrances upon any
property heretofore or hereafter acquired, created at the time of
acquisition or within 365 days thereafter to secure all or a portion of
the purchase price thereof, or existing thereon at the date of
acquisition, whether or not assumed by the Issuer or any Subsidiary of
it, provided that every such mortgage, pledge, lien or encumbrance
shall apply only to the property so acquired and fixed improvements
thereon;
(xi) any extension, renewal or refunding, in whole or in part,
of any mortgage, pledge, lien or encumbrance permitted by Section (x)
above, if limited to the same property or any portion thereof subject
to, and securing not more than the amount secured by, the mortgage,
pledge, lien or encumbrance extended, renewed or refunded;
(xii) mortgages, pledges, liens or encumbrances upon any
property heretofore or hereafter acquired by any corporation that is or
becomes such a Subsidiary of the Issuer after the date of the Fiscal
Agency Agreement ("Acquired Entity"), provided that every such
mortgage, pledge, lien or encumbrance (1) shall either (a) exist prior
to the time the Acquired Entity becomes such a Subsidiary or (b) be
created at the time the Acquired Entity becomes such a Subsidiary or
within 365 days thereafter to secure all or a portion of the
acquisition price thereof and (2) shall only apply to those properties
owned by the Acquired Entity at the time it becomes such a Subsidiary
or thereafter acquired by it from sources other than the Issuer or any
other Subsidiary of it;
(xiii) the pledge of current assets, in the ordinary course of
business, to secure current liabilities;
(xiv) mechanics' or materialmen's liens, any liens or charges
arising by reason of pledges or deposits to secure payment of workmen's
compensation or other insurance, good faith deposits in connection with
tenders, leases of real estate, bids or contracts (other than contracts
for the payment of money), deposits to secure duties or public or
statutory obligations, deposits to secure, or in lieu of, surety, stay
or appeal bonds, and deposits as security for the payment of taxes or
assessments or similar charges;
(xv) any lien arising by reason of deposits with, or the
giving of any form of security to, any governmental agency or any body
created or approved by law or governmental regulation for any purpose
at any time in connection with the financing of the acquisition or
construction of property to be used in the business of the Issuer or
A-10
any Subsidiary of it or as required by law or governmental regulation
as a condition to the transaction of any business or the exercise of
any privilege or license, or to enable the Issuer or any such
Subsidiary to maintain self-insurance or to participate in any funds
established to cover any insurance risks or in connection with
workmen's compensation, unemployment insurance, old age pensions or
other social security, or to share in the privileges or benefits
required for companies participating in such arrangements;
(xvi) any lien to secure Indebtedness of the Issuer other than
Funded Debt (as hereinafter defined);
(xvii) any mortgage, pledge, lien or encumbrance of or upon
any office equipment, data processing equipment (including, without
limitation, computer and computer peripheral equipment), or
transportation equipment (including without limitation, motor vehicles,
tractors, trailers, marine vessels, barges, towboats, rolling stock and
aircraft);
(xviii) any mortgage, pledge, lien or encumbrance created or
assumed by the Issuer or any Subsidiary of it in connection with the
issuance of debt securities the interest on which is excludable from
gross income of the holder of such security pursuant to the Internal
Revenue Code of 1986, as amended, for the purpose of financing, in
whole or in part, the acquisition or construction of property to be
used by the Issuer or any such Subsidiary; or
(xix) the pledge or assignment of accounts receivable, or the
pledge or assignment of conditional sales contracts or chattel
mortgages and evidences of indebtedness secured thereby, received in
connection with the sale by the Issuer or any Subsidiary of it of goods
or merchandise to customers of the Issuer or any Subsidiary.
In case the Issuer or any Subsidiary of it shall propose to pledge,
mortgage or hypothecate any Principal Property at any time owned by it to secure
any of its Indebtedness, other than as permitted by subdivisions (i) to (xix),
inclusive, of this Paragraph 7, the Issuer will prior thereto give written
notice thereof to the Fiscal Agent, and the Issuer will, or will cause such
Subsidiary to, prior to or simultaneously with such pledge, mortgage or
hypothecation, effectively secure all the Securities equally and ratably with
such Indebtedness.
Notwithstanding the foregoing provisions of this Paragraph 7, the
Issuer or any Subsidiary of it may issue, assume or guarantee Indebtedness
secured by a mortgage which would otherwise be subject to the foregoing
restrictions in an aggregate amount which, together with all other Indebtedness
of the Issuer or a Subsidiary of it secured by a mortgage which (if originally
issued, assumed or guaranteed at such time) would otherwise be subject to the
foregoing restrictions (not including Indebtedness permitted to be secured under
clauses (i) through (xix) above), does not at the time exceed 10% of the
Consolidated Net Tangible Assets of the Issuer as shown on its audited
consolidated financial statements as of the end of the fiscal year preceding the
date of determination.
For purposes of the Securities,
"Consolidated Net Tangible Assets" of any corporation means total
assets less (a) total current liabilities (excluding indebtedness due within 365
days) and (b) goodwill, patents and trademarks, all as reflected in such
corporation's audited consolidated balance sheet preceding the date of a
determination under the immediately preceding paragraph of this Paragraph 7.
A-11
"Funded Debt" as applied to any corporation means all Indebtedness
incurred, created, assumed or guaranteed by such corporation, or upon which it
customarily pays interest charges, which matures, or is renewable by such
corporation to a date, more than one year after the date as of which Funded Debt
is being determined; provided, however, that the term "Funded Debt" shall not
include (i) Indebtedness incurred in the ordinary course of business
representing borrowings, regardless of when payable, of such corporation from
time to time against, but not in excess of the face amount of, its installment
accounts receivable for the sale of appliances and equipment sold in the regular
course of business or (ii) advances for construction and security deposits
received by such corporation in the ordinary course of business.
"Indebtedness" as applied to any corporation, shall mean bonds,
debentures, notes and other instruments representing obligations created or
assumed by any such corporation for the repayment of money borrowed (other than
unamortized debt discount or premium). All Indebtedness secured by a lien upon
property owned by any corporation and upon which Indebtedness any such
corporation customarily pays interest, although any such corporation has not
assumed or become liable for the payment of such Indebtedness, shall for all
purposes of the Securities be deemed to be Indebtedness of any such corporation.
All Indebtedness for money borrowed incurred by other persons which is directly
guaranteed as to payment of principal by any corporation shall for all purposes
of the Securities be deemed to be Indebtedness of such corporation, but no other
contingent obligation of such corporation in respect of Indebtedness incurred by
other persons shall for any purpose be deemed Indebtedness of such corporation.
Indebtedness of any corporation shall not include: (i) amounts which are payable
only out of all or a portion of the oil, gas, natural gas, helium, coal, metals,
minerals, steam, timber, hydrocarbons, or geothermal or other natural resources
produced, derived, or extracted from properties owned or developed by such
corporation; (ii) any amount representing capitalized lease obligations; (iii)
any indebtedness incurred to finance oil, gas, natural gas, helium, coal, metal,
mineral, steam, timber, hydrocarbons, or geothermal or other natural resources
or synthetic fuel exploration or development, payable with respect to principal
and interest, solely out of the proceeds of oil, gas, natural gas, helium, coal,
metals, minerals, steam, timber, hydrocarbons, or geothermal or other natural
resources or synthetic fuel to be produced, sold, and/or delivered by any such
corporation; (iv) indirect guarantees or other contingent obligations in
connection with the Indebtedness of others, including agreements, contingent or
otherwise, with such other persons or with third persons with respect to, or to
permit or ensure the payment of, obligations of such other persons, including,
without limitation, agreements to purchase or repurchase obligations of such
other persons, agreements to advance or supply funds to or to invest in such
other persons, or agreements to pay for property, products, or services of such
other persons (whether or not conferred, delivered or rendered), and any demand
charge, throughput, take-or-pay, keep-well, make-whole, cash deficiency,
maintenance of working capital or earnings or similar agreements; and (v) any
guarantees with respect to lease or other similar periodic payments to be made
by other persons.
"Principal Property" of the Issuer means any oil or gas pipeline, gas
processing plant or chemical plant located in the United States, except any such
pipeline, facility, station or plant that in the opinion of the Board of
Directors of the Issuer is not of material importance to the total business
conducted by the Issuer or its Subsidiaries. "Principal Property" shall not
include any oil or gas property, the production or any proceeds of production
A-12
from an oil or gas producing property or the production or any proceeds of
production of gas processing plants or oil or gas or petroleum products in any
pipeline. "Principal Property" shall also include any gas storage facility or
gas compressor station located in the United States, except any such facility or
station that in the opinion of the Board of Directors of the Issuer is not of
material importance to the total business conducted by the Issuer or its
Subsidiaries, and "Principal Property" shall not include any liquefied natural
gas plants and related storage facilities or any natural gas liquids processing
plants.
8. (a) The Issuer shall not consolidate with or merge into any
other person or convey, transfer or lease its properties and assets
substantially as an entirety to any person, and the Issuer shall not permit any
person to consolidate with or merge into the Issuer or convey, transfer or lease
its properties and assets substantially as an entirety to the Issuer unless:
(i) in case the Issuer shall consolidate with or
merge into another person or convey, transfer or lease its properties
and assets substantially as an entirety to any person, the person
formed by such consolidation or into which the Issuer is merged or the
person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Issuer substantially as an entirety shall
be a corporation, partnership or trust, shall be organized and validly
existing under the laws of the United States of America, any State
thereof or the District of Columbia (the "Successor Person") and shall
expressly assume, by amendment to the Fiscal Agency Agreement signed by
the Issuer and such Successor Person and delivered to the Fiscal Agent,
the due and punctual payment of the principal of an interest on all the
Securities and the performance or observance of every covenant hereof
and of the Fiscal Agency Agreement on the part of the Issuer to be
performed or observed;
(ii) immediately after giving effect to such
transaction and treating any indebtedness which becomes an obligation
of the Issuer or any Subsidiary of it as a result of such transaction
as having been incurred by the Issuer or any such Subsidiary at the
time of such transaction, no event of default (as set forth in
Paragraph 6), and no event which, with notice or lapse of time or both,
would become such an event of default, shall have happened and be
continuing;
(iii) if, as a result of any such consolidation or
merger or such conveyance, transfer or lease, properties or assets of
the Issuer or any Subsidiary of it would become subject to a mortgage,
pledge, lien, security interest or other encumbrance which would not be
permitted by Paragraph 7 hereof, the Issuer, or the Successor Person,
as the case may be, shall take such steps as shall be necessary
effectively to secure the Securities equally and ratably with (or prior
to) all Indebtedness secured by such mortgage, pledge, lien, security
interest or other encumbrance; and
(iv) the Issuer has delivered to the Fiscal Agent an
Officers' Certificate and a written opinion or opinions of counsel
satisfactory to the Fiscal Agent (who may be counsel to the Issuer),
stating that such consolidation, merger, conveyance, transfer or lease
and such amendment to the Fiscal Agency Agreement comply with this
Paragraph 8 and that all conditions precedent herein provided for
relating to such transaction have been complied with.
A-13
(b) Upon any such consolidation or merger, or any
conveyance, transfer or lease of the properties and assets of the Issuer
substantially as an entirety in accordance with Paragraph 8(a), the Successor
Person shall succeed to, and be substituted for, and may exercise every right
and power of the Issuer under the Fiscal Agency Agreement and the Securities
with the same effect as if the Successor Person had been named as the Issuer in
the Fiscal Agency Agreement and the Securities, and thereafter the Issuer,
except in the case of a lease of its properties and assets, shall be released
from its liability as obligor on any of the Securities and under the Fiscal
Agency Agreement.
9. Section 7 of the Fiscal Agency Agreement, which requires the Issuer
to provide registered holders of Securities or, in the case of clauses (a) and
(b) thereof, designated prospective purchasers of Securities with certain
information and an Officers' Certificate, is hereby incorporated mutatis
mutandis by reference herein.
10. Until the date that is two years from the date of original issuance
of the Securities, the Issuer will not, and will not permit any of its
"affiliates" (as defined under Rule 144 under the Act or any successor provision
thereto) to, resell any Securities which constitute "restricted securities"
under Rule 144 that have been reacquired by any of them.
11. If any mutilated Security is surrendered to the Fiscal Agent, the
Issuer shall execute, and the Fiscal Agent shall authenticate and deliver in
exchange therefore, a new Security of like tenor and principal amount, bearing a
number not contemporaneously outstanding.
If there be delivered to the Issuer and the Fiscal Agent (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of each of them harmless, then, in the absence of notice to the Issuer
or the Fiscal Agent that such Security has been acquired by a bona fide
purchaser, the Issuer shall execute, and upon its request the Fiscal Agent shall
authenticate and deliver in lieu of any such destroyed, lost or stolen Security
a new Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
Upon the issuance of any new Security under this Paragraph, the Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and the expenses of the Fiscal Agent) connected
therewith.
Every new Security issued pursuant to this Paragraph in lieu of any
destroyed, lost or stolen Security, shall constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone.
Any new Security delivered pursuant to this Paragraph shall be so dated
that neither gain nor loss in interest shall result from such exchange.
The Provisions of this Paragraph 11 are exclusive and shall preclude
(to the extent lawful) all other nights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
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12. Section 11 of the Fiscal Agency Agreement, which Section is hereby
incorporated mutatis mutandis by reference herein, provides that, with certain
exceptions as therein provided and by written consent of a majority in the
principal amount of all Outstanding Securities, the Issuer and the Fiscal Agent
may modify, amend or supplement the Fiscal Agency Agreement or the terms of the
Securities or may give consents or waivers or take other actions with respect
thereto. Any such modification, amendment, supplement, consent, waiver, or other
action shall be conclusive and binding on the holder of this Security and on all
future holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange heretofore or in lieu hereof, whether or not
notation thereof is made upon this Security. The Fiscal Agency Agreement and the
terms of the Securities may be modified or amended by the Issuer and the Fiscal
Agent, without the consent of any holders of Securities, for the purpose of (i)
adding to the covenants of the Issuer for the benefit of the holders of
Securities, or (ii) surrendering any right or power conferred upon the Issuer,
or (iii) securing the Securities pursuant to the requirements of the Securities
or otherwise, or (iv) evidencing the succession of another corporation to the
Issuer and the assumption by any such successor of the covenants and obligations
of the Issuer in the Securities or in the Fiscal Agency Agreement pursuant to
Paragraph 8 hereof, or (v) correcting or supplementing any defective provision
contained in the Securities or in the Fiscal Agency Agreement, to all of which
each holder of any Security, by acceptance thereof, consents.
13. No reference herein to the Fiscal Agency Agreement and no provision
of this Security or of the Fiscal Agency Agreement shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to pay the
principal of and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
14. This Security is subject to the provisions of Section 14 of the
Fiscal Agency Agreement (which are incorporated mutatis mutandis by reference
herein) which provide for the defeasance at any time of (i) the entire
indebtedness of this Security or (ii) certain covenants and events of default,
in each case upon compliance with certain conditions set forth therein.
15. THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
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