NGC CORPORATION,
THE SUBSIDIARY GUARANTORS
NAMED HEREIN
AND
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
_______________
FIFTH SUPPLEMENTAL INDENTURE
Dated as of September 30, 1997
________________
Supplementing and Amending the Indenture
dated as of
December 11, 1995
THIS FIFTH SUPPLEMENTAL INDENTURE, dated as of September 30, 1997, is among
NGC Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, the Subsidiary
Guarantors parties hereto (the "Subsidiary Guarantors") and The First National
Bank of Chicago, a national banking association, as Trustee (herein called the
"Trustee"). Any capitalized term used in this Third Supplemental Indenture and
not defined herein shall have the meaning specified in the Original Indenture
(as defined below).
RECITALS OF THE COMPANY
The Company and each of the Initial Subsidiary Guarantors heretofore have
made, executed and delivered to the Trustee an Indenture dated as of December
11, 1995 (the "Original Indenture") to provide for the issuance from time to
time of unsecured debentures, notes or other evidences of indebtedness of the
Company (herein called the "Securities"), to be issued in one or more series as
provided in the Original Indenture.
The Company's obligations under the Original Indenture and the Securities
are guaranteed by the Subsidiary Guarantors.
The Company has duly authorized and issued a series of $150,000,000
aggregate principal amount of its 6 3/4% Senior Notes due December 15, 2005 (the
"Notes") as Securities pursuant to the Original Indenture.
Pursuant to a First Supplemental Indenture dated as of August 31, 1996 (the
"First Supplemental Indenture"), (i) Xxxxxx Petroleum Company, Limited
Partnership, a Delaware limited partnership ("Xxxxxx Petroleum"), (ii) WPC LP,
Inc., a Delaware corporation ("WPC"), and (iii) WTLPS, Inc., a Delaware
corporation ("WTLPS"), each became an Additional Subsidiary Guarantor.
Pursuant to a Second Supplemental Indenture dated as of October 11, 1996
(the "Second Supplemental Indenture"), Electric Clearinghouse, Inc. ("ECI")
became an Additional Subsidiary Guarantor.
Pursuant to a Third Supplemental Indenture dated as of April 23, 1997 (the
"Third Supplemental Indenture"), (i) Xxxxxx Petroleum was reclassified as an
Initial Subsidiary Guarantor rather than an Additional Subsidiary Guarantor,
(ii) Xxxxxx Energy Resources, Limited Partnership, Xxxxxx Gas Marketing, Inc.,
Xxxxxx NGL Pipeline Company, Kansas Gas Supply Corporation, Xxxxxx Intrastate
Gas Supply, Inc., NGC Great Britain Ltd., NGC Canada, Inc. and NGC Futures, Inc.
were each reclassified as Additional Subsidiary Guarantors rather than Initial
Subsidiary Guarantors and (iii) NGC Storage, Inc., HUB Services, Inc. and NGC
Anadarko Gathering Systems, Inc. were permanently released as guarantors of the
Securities. In addition, the names of certain Subsidiary Guarantors were
changed in the Third Supplemental Indenture.
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Pursuant to a Fourth Supplemental Indenture dated as of June 30, 1997 (the
"Fourth Supplemental Indenture"), Destec Energy, Inc. ("Destec") became an
Additional Subsidiary Guarantor.
Section 901(11) of the Original Indenture provides that under certain
conditions, the Company, the Subsidiary Guarantors and the Trustee may, without
the consent of any Holders of Securities, from time to time and at any time,
enter into an indenture or indentures supplemental thereto, for the purpose of
releasing an Additional Subsidiary Guarantor from its Subsidiary Guarantee
pursuant to Section 1506 of the Original Indenture, as supplemented and amended.
The Original Indenture, as so supplemented and amended by the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture, and this Fifth
Supplemental Indenture, being sometimes referred to herein as the "Indenture".
It is deemed necessary and desirable to supplement and amend the Original
Indenture in accordance with Section 901 of the Indenture to permanently release
NGC Futures, Inc.; Electric Clearinghouse, Inc.; Kansas Gas Supply Corporation;
NGC Great Britain Ltd.; NGC Canada, Inc.; Xxxxxx Gas Marketing, Inc.; Xxxxxx
Intrastate Gas Supply, Inc.; Xxxxxx NGL Pipeline Company; WPC LP, Inc.; and
WTLPS, Inc. as guarantors of the Securities.
The Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, stating that this Fifth Supplemental Indenture has been duly
authorized and executed by the Company and the Subsidiary Guarantors.
All things necessary to make this Fifth Supplemental Indenture and the
Original Indenture a valid agreement of the Company and each of the Subsidiary
Guarantors, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
(together with the related Subsidiary Guarantees) by the Holders thereof, it is
mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities or of a series thereof (together with the related Subsidiary
Guarantees), as follows:
ARTICLE ONE
MODIFICATION OF THE INDENTURE
Section 1.1. Amendment to Section 205 of the Indenture. The signature
block containing the names of the Subsidiary Guarantors at the end of Section
205 is hereby amended in its entirety to read as follows:
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NATURAL GAS CLEARINGHOUSE
By: Clearinghouse Holdings, Inc., its general partner
XXXXXX NGL, INC.
XXXXXX ENERGY RESOURCES, LIMITED PARTNERSHIP
By: Xxxxxx Energy, Inc., its general partner
XXXXXX GAS LIQUIDS, INC.
NGC OIL TRADING AND TRANSPORTATION, INC.
XXXXXX PETROLEUM COMPANY, LIMITED PARTNERSHIP
By: Xxxxxx Petroleum GP, Inc., its general partner
DESTEC ENERGY, INC.
By _____________________________
ARTICLE TWO
ADDITIONAL REPRESENTATIONS
AND COVENANTS OF THE COMPANY
AND THE SUBSIDIARY GUARANTORS
SECTION 2.1 AUTHORITY OF THE COMPANY. The Company represents and warrants
that it is duly authorized by a resolution of the Board of Directors to execute
and deliver this Fifth Supplemental Indenture, and all corporate action on its
part required for the execution and delivery of this Fifth Supplemental
Indenture has been duly and effectively taken.
SECTION 2.2 AUTHORITY OF SUBSIDIARY GUARANTORS. Each of the Subsidiary
Guarantors represents and warrants that it is duly authorized by a resolution of
its respective Board of Directors to execute and deliver this Fifth Supplemental
Indenture, and all corporate action on the part of each required for the
execution and delivery of this Fifth Supplemental Indenture has been duly and
effectively taken.
SECTION 2.3 RECITALS AND STATEMENTS. The Company warrants that the
recitals of fact and statements contained in this Fifth Supplemental Indenture
are true and correct, and that the recitals of fact and statements contained in
all certificates and other documents furnished hereunder will be true and
correct.
ARTICLE THREE
CONCERNING THE TRUSTEE
SECTION 3.1 ACCEPTANCE OF TRUSTS. The Trustee accepts the trust hereunder
and agrees to perform the same, but only upon the terms and conditions set forth
in the Indenture, to all of which the Company, Subsidiary Guarantors and the
respective Holders of Securities at any time hereafter outstanding agree by
their acceptance thereof.
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SECTION 3.2 RESPONSIBILITY OF TRUSTEE FOR RECITALS, ETC. The recitals and
statements contained in this Fifth Supplemental Indenture shall be taken as the
recitals and statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Fifth Supplemental
Indenture, except that the Trustee is duly authorized to execute and deliver
this Fifth Supplemental Indenture.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.1 RELATION TO THE INDENTURE. The provisions of this Fifth
Supplemental Indenture shall be deemed to be effective immediately upon the
execution and delivery hereof. This Fifth Supplemental Indenture and all the
terms and provisions herein contained shall form a part of the Indenture as
fully and with the same effect as if all such terms and provisions had been set
forth in the Original Indenture. The Original Indenture is hereby ratified and
confirmed and shall remain and continue in full force and effect in accordance
with the terms and provision thereof, as supplemented and amended by the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture and this Fifth
Supplemental Indenture. The Original Indenture as so supplemented shall be
read, taken and construed together as one instrument.
SECTION 4.2 COUNTERPARTS OF FIFTH SUPPLEMENTAL INDENTURE. This Fifth
Supplemental Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 4.3 GOVERNING LAW. This Fifth Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed, all as of the day and year first above written.
COMPANY
NGC CORPORATION
By:
Xxxxxx X. Xxxx, Xx.
Vice President and Treasurer
SUBSIDIARY GUARANTORS
NATURAL GAS CLEARINGHOUSE
By: Clearinghouse Holdings, Inc., its general
partner
XXXXXX NGL, INC.
XXXXXX ENERGY RESOURCES, LIMITED PARTNERSHIP
By: Xxxxxx Energy, Inc., its general partner
XXXXXX GAS LIQUIDS, INC.
NGC OIL TRADING AND TRANSPORTATION, INC.
XXXXXX PETROLEUM COMPANY, LIMITED PARTNERSHIP
By: Xxxxxx Petroleum G.P., Inc., its general
partner
DESTEC ENERGY, INC.
By: _____________________________
Xxxxxx X. Xxxx, Xx.
Vice President and Treasurer
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TRUSTEE
THE FIRST NATIONAL BANK OF CHICAGO
By
Name:
Title:
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