Exhibit 4.11
--------------------------------------------------------------------------------
NGC CORPORATION,
DESTEC ENERGY, INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
_______________
SECOND SUPPLEMENTAL INDENTURE
Dated as of June 30, 1997
________________
Supplementing and Amending the Indenture
dated as of
September 26, 1996
--------------------------------------------------------------------------------
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of June 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, Destec Energy, Inc., a
Delaware corporation ("Destec"), and The First National Bank of Chicago, a
national banking association, as Trustee (herein called the "Trustee"). Any
capitalized term used in this Second Supplemental Indenture and not defined
herein shall have the meaning specified in the 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 September
26, 1996 (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 Indenture and the Securities are
guaranteed by the Subsidiary Guarantors.
The Company has duly authorized and issued a series of $175,000,000 of its
7 5/8% Senior Debentures due October 15, 2026 as Securities pursuant to the
Original Indenture.
Pursuant to a First Supplemental Indenture dated as of April 23, 1997 (the
"First Supplemental Indenture"), the Original Indenture was amended to clarify
an ambiguity in Section 1506 of the Original Indenture addressing the release of
a Subsidiary Guarantee and to memorialize the name change of NGC UK Limited to
NGC Great Britain, Ltd.
Destec will become a guarantor of certain Funded Indebtedness of the
Company.
Section 1505 of the Original Indenture generally provides that if a
Subsidiary of the Company guarantees or becomes primarily obligated with respect
to any Funded Indebtedness of the Company other than the Securities at any time
subsequent to the Issue Date, then the Company shall cause the Securities to be
equally and ratably guaranteed by such Subsidiary and cause such Subsidiary to
execute and deliver a supplemental indenture evidencing its provision of a
Subsidiary Guarantee in accordance with the terms of the Original Indenture.
It is deemed necessary and desirable to supplement and amend the Original
Indenture to add Destec as a Subsidiary Guarantor as provided in Section 1505 of
the Original Indenture (the Original Indenture, as so supplemented and amended
by the First Supplemental Indenture and this Second Supplemental Indenture,
being sometimes referred to herein as the "Indenture").
The Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, stating that this Second Supplemental Indenture has been
duly authorized and executed by Destec and constitutes the legal, valid, binding
and enforceable obligation of Destec subject to certain exceptions regarding
enforceability.
1
All things necessary to make this Second 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
ADDITIONAL SUBSIDIARY GUARANTOR
SECTION 1.1. ADDITION OF DESTEC AS A SUBSIDIARY GUARANTOR. Destec by
execution of this Second Supplemental Indenture hereby agrees to be bound by the
terms of the Indenture as a Subsidiary Guarantor and agrees to be subject to the
provisions (including the representations and warranties) of the Indenture
applicable to Subsidiary Guarantors.
ARTICLE TWO
ADDITIONAL REPRESENTATIONS AND
COVENANTS OF THE COMPANY AND DESTEC
SECTION 2.1 AUTHORITY OF THE COMPANY. The Company represents and
warrants that it is duly authorized by a resolution of its Board of Directors to
execute and deliver this Second Supplemental Indenture, and all corporate action
on its part required for the execution and delivery of this Second Supplemental
Indenture has been duly and effectively taken.
SECTION 2.2 AUTHORITY OF DESTEC. Destec represents and warrants that it
is duly authorized by a resolution of its Board of Directors to execute and
deliver this Second Supplemental Indenture, and all corporate action on its part
required for the execution and delivery of this Second 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 Second 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
2
the Company, the Subsidiary Guarantors and the respective Holders of Securities
at any time hereafter outstanding agree by their acceptance thereof.
SECTION 3.2 RESPONSIBILITY OF TRUSTEE FOR RECITALS, ETC. The recitals
and statements contained in this Second 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 Second Supplemental
Indenture, except that the Trustee is duly authorized to execute and deliver
this Second Supplemental Indenture.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.1 RELATION TO THE INDENTURE. The provisions of this Second
Supplemental Indenture shall be deemed to be effective immediately upon the
execution and delivery hereof. This Second 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 and this Second Supplemental Indenture. The Original
Indenture as so supplemented shall be read, taken and construed together as one
instrument.
SECTION 4.2 COUNTERPARTS OF SECOND SUPPLEMENTAL INDENTURE. This Second
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 Second Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
3
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be effective, all as of the day and year first above written.
COMPANY
NGC CORPORATION
By:____________________________________
Name:
Title:
SUBSIDIARY GUARANTOR
DESTEC ENERGY, INC.
By:____________________________________
Name:
Title:
4
TRUSTEE
THE FIRST NATIONAL BANK OF CHICAGO
By:____________________________________
Name:
Title:
5
