FISCAL AGENCY AGREEMENT Between NORTHERN NATURAL GAS COMPANY, as Issuer and THE BANK OF NEW YORK TRUST COMPANY, N.A., as Fiscal Agent Dated as of February 12, 2007 5.800% Senior Bonds due 2037
EXHIBIT
99.1
Between
NORTHERN
NATURAL GAS COMPANY,
as
Issuer
and
THE
BANK
OF NEW YORK TRUST COMPANY, N.A.,
as
Fiscal
Agent
__________
Dated
as
of February 12, 2007
__________
5.800%
Senior Bonds due 2037
TABLE
OF CONTENTS
Page
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1.
|
The
Securities
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1
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|
(a)
|
General
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1
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(b)
|
Form
of Securities; Denominations of Securities
|
1
|
|
(c)
|
Temporary
Securities
|
4
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|
(d)
|
Legends
|
5
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|
(e)
|
Book-Entry
Provisions
|
5
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|
2.
|
Fiscal
Agent; Other Agents
|
6
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3.
|
Authentication
|
7
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4.
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Payment
and Cancellation
|
7
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(a)
|
Payment
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7
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|
(b)
|
Cancellation
|
8
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|
5.
|
Transfer
and Exchange of Securities
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8
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|
(a)
|
Transfers
of Global Securities as Such
|
8
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(b)
|
Exchanges
of Global Securities for Definitive Securities
|
8
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|
(c)
|
Beneficial
Interests
|
9
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|
(d)
|
Special
Provisions Regarding Transfer of Beneficial Interests in a Regulation
S
Global Security
|
9
|
|
(e)
|
Special
Provisions Regarding Transfer of Beneficial Interests in a Rule
144A
Global Security
|
12
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|
(f)
|
Special
Provisions Regarding Transfer of Restricted Definitive
Securities
|
15
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|
6.
|
Mutilated,
Destroyed, Stolen or Lost Securities
|
17
|
|
7.
|
Register;
Record Date for Certain Actions
|
17
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8.
|
Delivery
of Certain Information
|
19
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|
(a)
|
Non-Reporting
Issuer
|
19
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(b)
|
Information
After Two Years
|
19
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|
(c)
|
Periodic
Reports
|
19
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|
9.
|
Conditions
of Fiscal Agent’s Obligations
|
20
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|
(a)
|
Compensation
and Indemnity
|
20
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|
(b)
|
Agency
|
20
|
|
(c)
|
Advice
of Counsel
|
21
|
|
(d)
|
Reliance
|
21
|
i
(e)
|
Interest
in Securities, etc.
|
21
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|
(f)
|
Certifications
|
21
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|
(g)
|
No
Implied Obligations
|
21
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|
(h)
|
No
Liability
|
22
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|
(i)
|
No
Inquiry
|
22
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|
(j)
|
Agents
|
22
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|
(k)
|
Directors,
Officers
|
22
|
|
10.
|
Resignation
and Appointment of Successor
|
22
|
|
(a)
|
Fiscal
Agent and Paying Agent
|
22
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|
(b)
|
Resignation
|
22
|
|
(c)
|
Successors
|
23
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|
(d)
|
Acknowledgment
|
23
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|
(e)
|
Merger,
Consolidation, etc.
|
24
|
|
11.
|
Payment
of Taxes
|
24
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|
12.
|
Amendments
|
24
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|
(a)
|
Approval
|
24
|
|
(b)
|
Binding
Nature of Amendments, Notice, Notations, etc.
|
25
|
|
(c)
|
“Outstanding”
Defined
|
25
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|
13.
|
GOVERNING
LAW
|
26
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14.
|
Notices
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26
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15.
|
Defeasance
(Legal and Covenant)
|
26
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|
(a)
|
Issuer’s
Option to Effect Defeasance or Covenant Defeasance
|
26
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|
(b)
|
Defeasance
and Discharge
|
26
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|
(c)
|
Covenant
Defeasance
|
27
|
|
(d)
|
Conditions
of Defeasance and Covenant Defeasance
|
27
|
|
(e)
|
Deposit
in Trust; Miscellaneous
|
29
|
|
(f)
|
Reinstatement
|
30
|
|
16.
|
Headings
|
30
|
|
17.
|
Counterparts
|
30
|
|
18.
|
Successors
and Assigns
|
30
|
|
19.
|
Separability
Clause
|
30
|
|
20.
|
Waiver
of Jury Trial
|
30
|
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21.
|
Force
Majeure
|
30
|
ii
FISCAL
AGENCY AGREEMENT (this “Agreement”),
dated
as of February 12, 2007, between NORTHERN NATURAL GAS COMPANY, a
corporation duly organized under the laws of the State of Delaware (the
“Issuer”),
and
THE BANK OF NEW YORK TRUST COMPANY, N.A., a national banking association, as
Fiscal Agent (as defined in Section
2
hereof).
RECITALS
OF THE ISSUER
The
Issuer has duly authorized the creation of an issue of its 5.800% Senior Bonds
due February 15, 2037 (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.
The
Securities.
General.
The
aggregate principal amount of Securities which may be authenticated and
delivered under this Agreement is limited to $150,000,000 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 “5.800% Senior Bonds due 2037”
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.
Form
of
Securities; Denominations of Securities.
The
Securities will be issued in registered form without coupons in substantially
the form, and including the terms, provided for herein and on Exhibit
A.
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 one 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 Securities. All of the Securities shall
be
otherwise substantially identical except as to denominations of Securities
and
as provided herein.
(i) |
Except
as otherwise set forth in this Agreement, the Securities offered
and sold
in their initial resale distribution to a qualified institutional
buyer
(as defined in Rule 144A (“Rule
144A”)
under the Securities Act of 1933, as amended (the “Act”),
each a “QIB”)
in reliance on Rule 144A (“Rule
144A Securities”)
shall initially be issued in the form of one or more Global Securities
(as
defined in Section 1(e) hereof) in definitive, fully registered form,
substantially in the form set forth on Exhibit
A,
with such applicable legends as are provided for herein and on
Exhibit
A,
and in minimum denominations of $100,000 and in integral multiples
of
$1,000 in excess of $100,000. Such Global Securities shall be duly
executed by the Issuer and authenticated by the Fiscal Agent as
hereinafter provided, and deposited with the U.S. Depository (as
defined
in Section 1(e) hereof). Until such time as the Holding Period (as
defined
below) shall have terminated, each such Security shall be referred
to as a
“Rule
144A Global Security.”
The aggregate principal amount of any Rule 144A Global Security may
be
adjusted by endorsements to Schedule A on the reverse thereof in
any
situation where adjustment is permitted or required by this Agreement
or
provided for on Exhibit
A.
Unless the Issuer determines otherwise in accordance with applicable
law,
the legend setting forth transfer restrictions shall be removed or
deemed
removed from a Rule 144A Security in accordance with the procedures
set
forth in Section
1(d)
after such time as the applicable Holding Period shall have terminated,
and each such Security shall thereafter be held as an unrestricted
Security. As used herein, the term “Holding
Period,”
with respect to Rule 144A Securities, means the period referred to
in Rule
144(k) under the Act or any successor provision thereto (“Rule
144(k)”)
and as may be amended or revised from time to time, beginning from
the
later of (i) the original issue date of such Securities or (ii) the
last
date on which the Issuer or any affiliate of the Issuer was the beneficial
owner of such Securities (or any predecessor thereof).
|
(ii) |
Except
as otherwise set forth in this Agreement, Securities offered and
sold in
reliance on Regulation S under the Act (“Regulation
S”)
will be issued initially in the form of one or more temporary Global
Securities in the form provided for herein and on Exhibit
A,
with such applicable legends as are provided for herein and on
Exhibit
A,
and in minimum denominations of $100,000 and in integral multiples
of
$1,000 in excess of $100,000 equal to the outstanding principal amount
of
the Securities initially sold in reliance on Rule 903 of Regulation
S
under the Act (the “Regulation
S Temporary Global Securities”).
The Regulation S Temporary Global Securities, which will be deposited
on
behalf of the purchasers of the Securities represented thereby with
the
Fiscal Agent, as custodian for the U.S. Depository, and registered
in the
name of the U.S. Depository or the nominee of the U.S. Depository
for the
accounts of designated agents holding on behalf of Euroclear Bank
S.A./N.V., as operator of the Euroclear System (“Euroclear”),
or Clearstream Banking, S.A. (“Clearstream”),
shall be duly executed by the Issuer and authenticated by the Fiscal
Agent
as hereinafter provided. Following the termination of the Restricted
Period (as defined below) and upon the receipt by the Fiscal Agent
of:
|
2
a. a
written
certificate from the U.S. Depository, together with copies of certificates
from
Euroclear and Clearstream, certifying that they have received certification
of
non-United States beneficial ownership of 100% of the aggregate principal amount
of the Regulation S Temporary Global Securities (except to the extent of any
beneficial owners thereof who acquired an interest therein during the Restricted
Period pursuant to another exemption from registration under the Act and who
will take delivery of a beneficial ownership interest in a Rule 144A Global
Security or a Restricted Definitive Security (as defined below), all as
contemplated by Section
5(d)
hereof);
and
b. a
certificate signed by the Authorized Officers (“Officers’
Certificate”),
beneficial
interests in the Regulation S Temporary Global Securities will be exchanged
for
beneficial interests in a permanent global Security in the form provided for
herein and on Exhibit
A,
issued
in a denomination equal to the outstanding principal amount of the Regulation
S
Temporary Global Securities (the “Regulation
S Permanent Global Securities”)
pursuant to the rules and regulations of the U.S. Depository, Euroclear or
Clearstream, as applicable, in each case pertaining to beneficial interests
in
Global Securities (“Applicable
Procedures”).
Simultaneously with the authentication of the Regulation S Permanent Global
Securities, the Fiscal Agent will cancel the Regulation S Temporary Global
Securities. As used herein, “Regulation
S Global Securities”
means
the Regulation S Temporary Global Securities or the Regulation S Permanent
Global Securities, as applicable.
The
aggregate principal amount of the Regulation S Temporary Global Securities
and
the Regulation S Permanent Global Securities may be adjusted by endorsements
to
Schedule A on the reverse thereof in any situation where adjustment is permitted
or required by this Agreement. As used herein, the term “Restricted
Period,”
with
respect to Regulation S Securities, means the period of 40 consecutive days
beginning on and including the later of (i) the date on which interests in
such
Securities are offered to Persons (as defined below) other than distributors
(as
defined in Regulation S) and (ii) the original issue date of such Securities.
Except as otherwise provided in this Agreement, no Regulation S Global Security
shall be issued except as provided in this paragraph to evidence Securities
offered and sold in reliance on Regulation S. Unless the Issuer determines
otherwise in accordance with applicable law, the legend setting forth transfer
restrictions shall be removed or deemed removed from a Regulation S Security
in
accordance with the procedures set forth in Section
1(d)
hereof,
and each such Security shall thereafter be held as an unrestricted Security.
As
used herein, “Person”
means
any individual, corporation, limited liability company, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
3
The
provisions of the “Operating Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” and the “General Terms and Conditions of
Clearstream Banking” and “Customer Handbook” of Clearstream will be applicable
to transfers of beneficial interests in the Regulation S Temporary Global
Securities and the Regulation S Permanent Global
Securities that are held by Agent Members (as defined in Section 1(e)) through
Euroclear or Clearstream.
(iii) |
Except
as otherwise provided in this Agreement, Securities offered and sold
in
their initial resale distribution to purchasers who are institutional
“accredited investors” as described in Rule 501(a)(1), (2), (3) or (7)
under the Act and who are not QIBs shall be issued in the form of
fully
registered, definitive, physical certificates, substantially in the
form
set forth herein and on Exhibit
A,
with such applicable legends as are provided for on Exhibit
A,
and in minimum denominations of $250,000 and in integral multiples
of
$1,000 in excess of $250,000 (such securities are herein referred
to as
“Restricted
Definitive Securities”).
Unless the Issuer determines otherwise in accordance with applicable
law,
the legend setting forth transfer restrictions shall be removed or
deemed
removed from a Restricted Definitive Security in accordance with
the
procedures set forth in Section
1(d)
after such time as the applicable Holding Period shall have terminated,
and each such Security shall thereafter be held as an unrestricted
Security. As used herein, the term “Holding
Period,”
with respect to Restricted Definitive Securities, means the period
referred to in Rule 144(k) or any successor provision thereto and
as may
be amended or revised from time to time, beginning from the later
of (i)
the original issue date of such Securities or (ii) the last date on
which the Issuer or any affiliate of the Issuer was the beneficial
owner
of such Securities (or any predecessor
thereof).
|
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
6
and
7
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.
4
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,
including any legend provided for pursuant to Section
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 the
Authorized Officers 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 (“Rule
144”)
under
the Act or (ii) in connection with a sale made pursuant to the volume (and
other
restrictions) of Rule 144 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
Section
1(e)
hereof
may be removed in the event the applicable Global Securities cease to be Global
Securities in accordance with Section
5
hereof.
Book-Entry
Provisions.
The
Securities may be issued initially in the form of one or more registered global
Securities (“Global
Securities”)
deposited with or on behalf of a depository located in the United States, which
initially shall be The Depository Trust Company together with its nominee Cede
& Co. (the “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 similar to
the following:
“THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE FISCAL AGENCY AGREEMENT
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE U.S. DEPOSITORY
OR
A NOMINEE OF THE U.S. DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE U.S. DEPOSITORY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE FISCAL AGENCY AGREEMENT,
AND
NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE
BY THE U.S. DEPOSITORY TO A NOMINEE OF THE U.S. DEPOSITORY OR BY A NOMINEE
OF
THE U.S. DEPOSITORY TO THE U.S. DEPOSITORY OR ANOTHER NOMINEE OF THE U.S.
DEPOSITORY OR BY THE U.S. DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR U.S.
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR U.S. DEPOSITORY) MAY BE REGISTERED
EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS
THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE U.S.
DEPOSITORY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR
PAYMENT, AND ANY CERTIFICATE IS ISSUED IN THE NAME OR NAMES AS DIRECTED IN
WRITING BY THE U.S. DEPOSITORY, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED
HOLDER HEREOF, THE U.S. DEPOSITORY, HAS AN INTEREST HEREIN.”
5
Members
of, or direct of indirect participants in, the U.S. Depository (“Agent
Members”)
shall
have no rights under this Agreement with respect to any Global Security held
on
their behalf by the 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 the U.S. Depository or impair, as between the 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 or its nominee is the registered holder of the
Securities, the U.S. Depository or such nominee 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.
The
Issuer initially appoints the Fiscal Agent to serve as custodian for the Global
Securities.
This
Section
1(e)
shall
apply only to Global Securities deposited with or on behalf of the U.S.
Depository.
Fiscal
Agent; Other Agents.
The
Issuer hereby appoints The Bank of New York Trust Company, N.A., acting through
its corporate trust office in Chicago, Illinois (the “Corporate
Trust Office”),
as
fiscal agent of the Issuer in respect of the Securities, upon the terms and
subject to the conditions herein set forth, and The Bank of New York Trust
Company, N.A. hereby accepts such appointment. The Bank of New York Trust
Company, N.A. and any successor or successors as such fiscal agent qualified
and
appointed in accordance with Section 10
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 Agent and Transfer Agent may be the Fiscal Agent or any of its
affiliates). The Issuer initially appoints the Fiscal Agent, acting through
its
offices in the Borough of Manhattan, The City of New York, 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
10(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.
6
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 to registered holders
of the Securities.
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 $150,000,000 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.
2. Payment
and Cancellation.
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 on, as the case may be, the Securities set forth herein and in
the
text of the Securities. The Fiscal Agent shall arrange directly with any Paying
Agent who may have been appointed pursuant to the provisions of Section
2
hereof
for the payment from funds so paid by the Issuer of the principal of and
interest on the Securities as 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
9(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.
7
Any
interest on the Securities shall be paid, unless otherwise provided in the
text
of the Securities, to the Persons in whose names such Securities are registered
on the register maintained pursuant to Section
7
hereof
at the close of business on the record dates designated in the text of the
Securities (the “registered
holders”).
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
7
hereof,
or, in the case of payments of principal, to such other address as the
registered holder shall provide in writing at the time of such surrender;
provided,
however,
that
such payments may be made, in the case of a registered holder 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 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 payment is to
be
made.
Cancellation.
All
Securities delivered to the Fiscal Agent (or any other Agent appointed pursuant
to Section
2
hereof)
for payment, 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 disposed of 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 disposal to
the
Issuer upon the Issuer’s request.
Transfer
and Exchange of Securities.
Transfers
of Global Securities as Such.
Except
as otherwise expressly set forth in this Agreement or any amendment hereto,
a
Global Security representing all or a portion of the Securities may not be
transferred in global form, except as a whole (i) by the U.S. Depository to
a
nominee of such U.S. Depository, (ii) by a nominee of such U.S. Depository
to
such U.S. Depository or another nominee of such U.S. Depository or (iii) by
such
U.S. Depository or any such nominee to a successor U.S. Depository or a nominee
of such successor U.S. Depository.
Exchanges
of Global Securities for Definitive Securities.
A
Global Security shall be exchangeable, in whole but not in part, for definitive
Securities if (a) the U.S. Depository notifies the Issuer that it is unwilling
or unable to continue to hold book-entry interests in such Global Security
or
the U.S. Depository at any time ceases to be a “clearing agency” registered as
such under the Exchange Act of 1934, as amended (the “Exchange
Act”),
and,
in either case, a successor is not appointed by the Issuer within 120 days,
(b)
while a Global Security is a restricted Security the book-entry interests in
such Global Security cease to be eligible for the U.S. Depository’s services
because the Securities are neither (i) rated in one of the top four categories
by a nationally recognized statistical rating organization nor (ii) included
within a Self-Regulatory Organization system approved by the Securities and
Exchange Commission (the “Commission”)
for
the reporting of quotation and trade information of securities eligible for
transfer pursuant to Rule 144A, such as the PORTAL system, (c) the U.S.
Depository for Securities notifies the Issuer that it is unwilling or unable
to
continue as U.S. Depository with respect to such Global Security and no
successor is appointed within 120 days or (d) the Issuer in its sole discretion
executes and delivers to the Fiscal Agent an Officers’ Certificate providing
that such Global Security shall be so exchangeable; provided,
however,
that in
no event shall the Regulation S Temporary Global Securities be exchanged by
the
Issuer for definitive Securities prior to (x) the expiration of the Restricted
Period and (y) the receipt by the Transfer Agent of any certificates required
pursuant to Rule 903(b)(3)(ii)(B) under the Act. Securities so issued in
exchange for any such Global Security shall have the same interest rate, if
any,
and maturity and have the same terms as such Global Security, in authorized
denominations and in the aggregate having the same principal amount as such
Global Security and registered in such names as the U.S. Depository for such
Global Security shall direct. Upon such exchange, the surrendered Global
Security shall be cancelled by the Fiscal Agent.
8
A
Global
Security shall be exchangeable, in whole or in part, for definitive registered
Securities if there shall have occurred and be continuing an event of default
(as set forth in paragraph 7 of the Securities) and the registered holder,
in
such circumstances, shall have requested in writing that all or a part of the
Global Security be exchanged for one or more definitive Securities (an
“Optional
Definitive Security Request”),
provided,
however,
that in
no event shall the Regulation S Temporary Global Securities be exchanged by
the
Issuer for definitive registered Securities prior to (x) the expiration of
the
Restricted Period and (y) the receipt by the Transfer Agent of any certificates
required pursuant to Rule 903(b)(3)(ii)(B) under the Act. Upon any such
surrender, (i) the Issuer shall execute and the Fiscal Agent shall authenticate
and deliver without charge to each Person specified by the U.S. Depository,
in
exchange for such Person’s beneficial interest in the Global Security, a new
Security or Securities in definitive registered form having the same interest
rate, if any, and maturity and having the same terms as such Global Security,
in
any authorized denomination requested by such Person and in an aggregate
principal amount equal to such Person’s beneficial interest in the Global
Security, and (ii) if the Global Security is being exchanged (x) as a whole,
then the surrendered Global Security shall be cancelled by the Fiscal Agent,
or
(y) in part, then the principal amount of the surrendered Global Security shall
be reduced by an endorsement on Schedule A thereto in the appropriate
amount.
Unless
otherwise provided by the Issuer, definitive Securities issued in exchange
for a
Global Security pursuant to this Section
5(b)
shall be
issued only in registered form and shall be registered in such names and in
such
authorized denominations as the U.S. Depository for such Global Security,
pursuant to instructions of its Agent Members or otherwise, shall instruct
the
Fiscal Agent. The Fiscal Agent shall deliver such Securities to the Persons
in
whose names such Securities are so registered.
(a) Beneficial
Interests.
Subject
to the provisions herein, beneficial interests in a Global Security may be
transferred in any manner consistent with the Applicable
Procedures.
9
Special
Provisions Regarding Transfer of Beneficial Interests in a Regulation S Global
Security.
The
transfer of beneficial interests in a Regulation S Global Security shall be
effected in a manner not inconsistent with the following provisions:
(i) |
Transfer
Through a Rule 144A Global Security.
If the holder of a beneficial interest in a Regulation S Global Security
wishes at any time to transfer such interest to a Person who wishes
to
take delivery thereof in the form of a beneficial interest in a Rule
144A
Global Security, such transfer may be effected, subject to the Applicable
Procedures, only in accordance with this Section
5(d)(i),
provided,
however,
that prior to the expiration of the Restricted Period, transfers
of
beneficial interests in the Regulation S Temporary Global Securities
may
not be made to a U.S. person (as defined under Regulation S) or for
the
account or benefit of a U.S. person (other than an initial purchaser).
Upon receipt by the U.S. Depository of the instructions, order and
certificate set forth below, the U.S. Depository shall promptly forward
the same to the Transfer Agent at the Corporate Trust Office. Upon
receipt
by the Transfer Agent from the U.S. Depository at the Corporate Trust
Office of (1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the U.S. Depository to
cause to
be credited to a specified Agent Member’s account a beneficial interest in
the Rule 144A Global Security equal to that of the beneficial interest
in
the Regulation S Global Security to be so transferred, (2) a written
order
given in accordance with the Applicable Procedures containing information
regarding the account of the Agent Member to be credited with, and
the
account of the Agent Member held for Euroclear or Clearstream to
be
debited for, such beneficial interest, and (3) a certificate substantially
in the form set forth in or contemplated by Exhibit
B
given by the transferor of such beneficial interest, the Transfer
Agent,
shall (A) reduce the principal amount of the Regulation S Global
Security,
and increase the principal amount of the Rule 144A Global Security,
in
each case by an amount equal to the principal amount of the beneficial
interest in the Regulation S Global Security to be so transferred,
as
evidenced by appropriate endorsements on Schedule A of the respective
Global Securities, and (B) instruct the U.S. Depository, (x) to make
corresponding reductions and increases in the amounts represented
by the
respective Global Securities and (y) to cause to be credited to the
account of the Person specified in such instructions a beneficial
interest
in the Rule 144A Global Security having a principal amount equal
to the
amount by which the principal amount of the Regulation S Global Security
was reduced upon such transfer.
|
Delivery
of a beneficial interest in the Regulation S Global Security may not be taken
in
the form of a beneficial interest in the Rule 144A Global Security if
immediately prior to the contemplated transfer no Rule 144A Global Security
is
then Outstanding (as defined in Section
12(c)
hereof).
10
(ii) |
Interests
in Regulation S Global Security Initially to be Held Through Euroclear
or
Clearstream.
Beneficial interests in a Regulation S Temporary Global Security
may be
held only through Agent Members acting for and on behalf of Euroclear
or
Clearstream.
|
(iii) |
Transfer
Through Restricted Definitive Security.
If the holder of a beneficial interest in a Regulation S Global Security
wishes at any time to transfer such interest to a Person who wishes
to
take delivery thereof in the form of a Restricted Definitive Security,
such transfer may be effected, subject to the Applicable Procedures,
only
in accordance with this Section
5(d)(iii),
provided,
however,
that in no event shall the Regulation S Temporary Global Securities
be
exchanged by the Issuer for Restricted Definitive Securities prior
to (x)
the expiration of the Restricted Period and (y) the receipt by the
Transfer Agent of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Act. Upon receipt by the U.S. Depository
of the
instructions and certificate set forth below, the U.S. Depository
shall
promptly forward the same to the Transfer Agent at the Corporate
Trust
Office. Upon receipt by the Transfer Agent from the U.S. Depository
at the
Corporate Trust Office of (1) written instructions given in accordance
with the Applicable Procedures from an Agent Member directing the
U.S.
Depository to cause to be issued a Restricted Definitive Security
to such
Person in a principal amount equal to that of the beneficial interest
in
the Global Security to be so transferred and (2) a certificate
substantially in the form set forth in or contemplated by Exhibit
C
given by the transferor of such beneficial interest, the Transfer
Agent
shall (A) reduce the principal amount of the Regulation S Global
Security
by an amount equal to the principal amount of the beneficial interest
in
the Regulation S Global Security to be so transferred, as evidenced
by
appropriate endorsement on Schedule A of the Regulation S Global
Security
and (B) cause to be issued a Restricted Definitive Security to such
Person
in a principal amount equal to the amount by which the principal
amount of
the Regulation S Global Security was reduced upon such transfer.
|
(iv) |
Transfer
Through an Unrestricted Global Security.
If the holder of a beneficial interest in a Regulation S Global Security
wishes at any time to transfer such interest to a Person who wishes
to
take delivery thereof in the form of a beneficial interest in an
unrestricted Global Security, such transfer may be effected, subject
to
the Applicable Procedures, only in accordance with this Section 5(d)(iv).
Upon receipt by the U.S. Depository of the instructions, order and
certificate set forth below, the U.S. Depository shall promptly forward
the same to the Transfer Agent at the Corporate Trust Office. Upon
receipt
by the Transfer Agent from the U.S. Depository at the Corporate Trust
Office of (1) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the U.S. Depository
to cause to be credited to a specified Agent Member’s account a beneficial
interest in the unrestricted Global Security equal to that of the
beneficial interest in the Regulation S Global Security to be so
transferred, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Agent
Member, and the Euroclear or Clearstream account for which such Agent
Member’s account is held, to be credited with, and the account of the
Agent Members to be debited for, such beneficial interest, and (3)
a
certificate substantially in the form set forth in or contemplated
by
Exhibit
D
given by the transferor of such beneficial interest, the Transfer
Agent
shall (A) reduce the principal amount of the Regulation S Global
Security, and increase the principal amount of the unrestricted Global
Security, in each case by an amount equal to the principal amount
of the
beneficial interest in the Regulation S Global Security to be so
transferred, as evidenced by appropriate endorsements on Schedule
A of the
respective Global Securities and (B) instruct the U.S. Depository,
(x) to
make corresponding reductions and increases to the transferor’s beneficial
interests in the respective Global Securities and (y) to cause to
be
credited to the account of the Person specified in such instructions
a
beneficial interest in the unrestricted Global Security having a
principal
amount equal to the amount by which the principal amount of the Regulation
S Global Security was reduced upon such
transfer.
|
11
(v) |
Beneficial
Interests in Regulation S Temporary Global Securities to Definitive
Securities.
Notwithstanding the foregoing, a beneficial interest in a Regulation
S
Temporary Global Security may not be exchanged for a definitive Security
or transferred to a Person who takes delivery thereof in the form
of a
definitive Security prior to (A) the expiration of the Restricted
Period
and (B) the receipt by the Registrar of any certificates required
pursuant to Rule 903(b)(3)(ii)(B) under the Act, except in the case
of a
transfer pursuant to an exemption from the registration requirements
of
the Act other than Rule 903 or Rule
904.
|
Special
Provisions Regarding Transfer of Beneficial Interests in a Rule 144A Global
Security.
The
transfer of beneficial interests in a Rule 144A Global Security shall be
effected in a manner not inconsistent with the following provisions:
(vi) |
Transfer
Through a Regulation S Global Security.
If the holder of a beneficial interest in a Rule 144A Global Security
wishes at any time to transfer such interest to a Person who wishes
to
take delivery thereof in the form of a beneficial interest in a Regulation
S Global Security, such transfer may be effected, subject to the
Applicable Procedures, only in accordance with this Section 5(e)(i).
Upon receipt by the U.S. Depository of the instructions, order and
certificate set forth below, the U.S. Depository shall promptly forward
the same to the Transfer Agent at the Corporate Trust Office. Upon
receipt
by the Transfer Agent from the U.S. Depository at the Corporate Trust
Office of (1) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the U.S. Depository
to cause to be credited to a specified Agent Member’s account a beneficial
interest in the Regulation S Global Security equal to that of the
beneficial interest in the Rule 144A Global Security to be so transferred,
(2) a written order given in accordance with the Applicable Procedures
containing information regarding the account of the Agent Members
held for
Euroclear to be credited with, and the account of the Agent Members
to be
debited for, such beneficial interest, and (3) a certificate substantially
in the form set forth in or contemplated by Exhibit
E
given by the transferor of such beneficial interest, the Transfer
Agent
shall (A) reduce the principal amount of the Rule 144A Global Security,
and increase the principal amount of the Regulation S Global Security,
in
each case by an amount equal to the principal amount of the beneficial
interest in the Rule 144A Global Security to be so transferred, as
evidenced by appropriate endorsements on Schedule A of the respective
Global Securities and (B) instruct the U.S. Depository, (x) to make
corresponding reductions and increases to the amounts represented
by the
respective Global Securities and (y) to cause to be credited to the
account of the Person specified in such instructions a beneficial
interest
in the Regulation S Global Security having a principal amount equal
to the
amount by which the principal amount of the Rule 144A Global Security
was
reduced upon such transfer.
|
12
Delivery
of a beneficial interest in the Rule 144A Global Security may not be taken
in
the form of a beneficial interest in the Regulation S Global Security if
immediately prior to the contemplated transfer no Regulation S Global Security
is then Outstanding.
(vii) |
Transfer
Through Restricted Definitive Security.
If the holder of a beneficial interest in a Rule 144A Global Security
wishes at any time to transfer such interest to a Person who wishes
to
take delivery thereof in the form of a Restricted Definitive Security,
such transfer may be effected, subject to the Applicable Procedures,
only
in accordance with this Section
5(e)(ii).
Upon receipt by the U.S. Depository of the instructions and certificate
set forth below, the U.S. Depository shall promptly forward the same
to
the Transfer Agent at the Corporate Trust Office. Upon receipt by
the
Transfer Agent from the U.S. Depository at the Corporate Trust Office
of
(1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the U.S. Depository to
cause to
be issued a Restricted Definitive Security to such Person in a principal
amount equal to that of the beneficial interest in the Rule 144A
Global
Security to be so transferred and (2) a certificate substantially
in the
form set forth in or contemplated by Exhibit
F
given by the transferor of such beneficial interest, the Transfer
Agent
shall (A) reduce the principal amount of the Rule 144A Global Security
by
an amount equal to the principal amount of the beneficial interest
in the
Rule 144A Global Security to be so transferred, as evidenced by
appropriate endorsement on Schedule A of the Rule 144A Global Security
and
cause to be issued a Restricted Definitive Security to such Person
in a
principal amount equal to the amount by which the principal amount
of the
Rule 144A Global Security was reduced upon such transfer and (B)
instruct
the U.S. Depository to make a corresponding reduction to the transferor’s
beneficial interest in the Rule 144A Global
Security.
|
13
(viii) |
Transfer
Through an Unrestricted Global Security.
If the holder of a beneficial interest in a Rule 144A Global Security
wishes at any time to transfer such interest to a Person who wishes
to
take delivery thereof in the form of a beneficial interest in an
unrestricted Global Security, such transfer may be effected, subject
to
the Applicable Procedures, only in accordance with this Section 5(e)(iii).
Upon receipt by the U.S. Depository of the instructions, order and
certificate set forth below, the U.S. Depository shall promptly forward
the same to the Transfer Agent at the Corporate Trust Office. Upon
receipt
by the Transfer Agent from the U.S. Depository at the Corporate Trust
Office of (1) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the U.S. Depository
to cause to be credited to a specified Agent Member’s account a beneficial
interest in the unrestricted Global Security equal to that of the
beneficial interest in the Rule 144A Global Security to be so transferred,
(2) a written order given in accordance with the Applicable Procedures
containing information regarding the account of the Agent Members
to be
credited with, and the account of the Agent Members to be debited
for,
such beneficial interest, and (3) a certificate substantially in
the form
set forth in or contemplated by Exhibit
G
given by the transferor of such beneficial interest, the Transfer
Agent
shall (A) reduce the principal amount of the Rule 144A Global Security,
and increase the principal amount of the unrestricted Global Security,
in
each case by an amount equal to the principal amount of the beneficial
interest in the Rule 144A Global Security to be so transferred, as
evidenced by appropriate endorsements on Schedule A of the respective
Global Securities and (B) instruct the U.S. Depository, (x) to make
corresponding reductions and increases to the transferor’s beneficial
interests in the respective Global Securities and (y) to cause to
be
credited to the account of the Person specified in such instructions
a
beneficial interest in the unrestricted Global Security having a
principal
amount equal to the amount by which the principal amount of the Rule
144A
Global Security was reduced upon such
transfer.
|
14
Special
Provisions Regarding Transfer of Restricted Definitive Securities.
Unless
expressly provided otherwise in this Agreement, whenever any Restricted
Definitive Security is presented or surrendered for registration of transfer,
such Restricted Definitive Security must be accompanied by a certificate in
substantially the form set forth in or contemplated by Exhibit
H
(which
may be attached to or set forth in the Restricted Definitive Security),
appropriately completed, dated the date of such surrender and signed by the
holder of such Restricted Definitive Security, as to compliance with such
restrictions on transfer, unless the Issuer shall have notified the Fiscal
Agent
that there is an effective registration statement under the Act with respect
to
such Restricted Definitive Security. The Transfer Agent shall not be required
to
accept for such registration of transfer or exchange any Restricted Definitive
Security not so accompanied by a properly completed certificate. The transfer
of
Restricted Definitive Securities shall be effected in a manner not inconsistent
with the following provisions:
(ix) |
Transfer
Through Regulation S Global Security.
If the holder of a Restricted Definitive Security wishes at any time
to
transfer such interest to a Person who wishes to take delivery thereof
in
the form of a beneficial interest in a Regulation S Global Security,
such
transfer may be effected, subject to the Applicable Procedures, only
in
accordance with this Section
5(e)(i).
Upon receipt by the Transfer Agent at the Corporate Trust Office
of (1)
written instructions from the transferor directing it to cause the
U.S.
Depository to cause to be credited to such Person a beneficial interest
in
the Regulation S Global Security in a principal amount equal to that
of
the Restricted Definitive Security to be so transferred and (2) a
certificate substantially in the form set forth in or contemplated
by
Exhibit
H
given by the transferor of such Restricted Definitive Security, the
Transfer Agent shall (A) increase the principal amount of the
Regulation S Global Security by an amount equal to the principal
amount of
the beneficial interest in the Regulation S Global Security to be
received
by such Person, as evidenced by appropriate endorsement on Schedule
A of
the Regulation S Global Security, and cancel such Restricted Definitive
Security, and (B) instruct the U.S. Depository, (x) to make corresponding
increases in the amount represented by the Regulation S Global Security
and (y) to cause to be credited to the account of the Person specified
in
such instructions a beneficial interest in the Regulation S Global
Security having a principal amount equal to the principal amount
of the
Restricted Definitive Security that was cancelled.
|
15
(x) |
Transfer
Through Rule 144A Global Security.
If the holder of a Restricted Definitive Security wishes at any time
to
transfer such interest to a Person who wishes to take delivery thereof
in
the form of a beneficial interest in the Rule 144A Global Security,
such
transfer may be effected, subject to the Applicable Procedures, only
in
accordance with this Section
5(e)(ii).
Upon receipt by the Transfer Agent at the Corporate Trust Office
of (1)
written instructions from the transferor directing it to cause the
U.S.
Depository to cause to be credited to such Person a beneficial interest
in
the Rule 144A Global Security in a principal amount equal to that
of the
Restricted Definitive Security to be so transferred and (2) a certificate
substantially in the form set forth in or contemplated by Exhibit
H
given by the transferor of such Restricted Definitive Security, the
Transfer Agent shall (A) increase the principal amount of the Rule
144A Global Security by an amount equal to the principal amount of
the
beneficial interest in the Rule 144A Global Security to be received
by
such Person, as evidenced by appropriate endorsement on Schedule
A of the
Rule 144A Global Security, and cancel such Restricted Definitive
Security,
and (B) instruct the U.S. Depository, (x) to make corresponding increases
in the amount represented by the Rule 144A Global Security and (y)
to
cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Rule 144A Global Security
having
a principal amount equal to the principal amount of the Restricted
Definitive Security that was cancelled.
|
(xi) |
Transfer
Through Unrestricted Global Security.
If the holder of a Restricted Definitive Security wishes at any time
to
transfer such interest to a Person who wishes to take delivery thereof
in
the form of a beneficial interest in the unrestricted Global Security,
such transfer may be effected, subject to the Applicable Procedures,
only
in accordance with this Section
5(e)(iii).
Upon receipt by the Transfer Agent at the Corporate Trust Office
of (1)
written instructions from the transferor directing it to cause the
U.S.
Depository to cause to be credited to such Person a beneficial interest
in
the unrestricted Global Security in a principal amount equal to that
of
the Restricted Definitive Security to be so transferred and (2) a
certificate substantially in the form set forth in or contemplated
by
Exhibit
H
given by the transferor of such Restricted Definitive Security, the
Transfer Agent shall (A) increase the principal amount of the
unrestricted Global Security by an amount equal to the principal
amount of
the beneficial interest in the unrestricted Global Security to be
received
by such Person, as evidenced by appropriate endorsement on Schedule
A of
the unrestricted Global Security, and cancel such Definitive Security,
and
(B) instruct the U.S. Depository, (x) to make corresponding increases
in
the amount represented by the Rule 144A Global Security and (y) to
cause
to be credited to the account of the Person specified in such instructions
a beneficial interest in the unrestricted Global Security having
a
principal amount equal to the principal amount of the Restricted
Definitive Security that was
cancelled.
|
16
(xii) |
Transfer
Through Restricted Definitive Security.
If the holder of a Restricted Definitive Security wishes at any time
to
transfer such interest to a Person who wishes to take delivery thereof
in
the form of another Restricted Definitive Security, such transfer
may be
effected, subject to the Applicable Procedures, only in accordance
with
this Section
5(e)(iv).
Upon receipt by the U.S. Depository of the instructions and certificate
set forth below, the U.S. Depository shall promptly forward the same
to
the Transfer Agent at the Corporate Trust Office. Upon receipt by
the
Transfer Agent from the U.S. Depository at the Corporate Trust Office
of a
certificate substantially in the form set forth in or contemplated
by
Exhibit
H
given by the transferor of such Restricted Definitive Security, the
Transfer Agent shall register the transfer of such Restricted Definitive
Security.
|
Mutilated,
Destroyed, Stolen or Lost 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
l(e),
Section
5
and of
this Section to authenticate and deliver:
(xiii) |
Securities
in exchange for or in lieu of Securities of like tenor and of like
form
which become mutilated, destroyed, stolen or lost;
and
|
(xiv) |
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.
Register;
Record Date for Certain Actions.
The
Fiscal Agent, as agent of the Issuer, shall maintain at its corporate trust
office in Chicago, Illinois and at its agent’s office in the Borough of
Manhattan, The City of New York, a register for the Securities for 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 registered 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)
and
Section
5
hereof,
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.
17
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 except as set forth in this
Agreement.
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
registered 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
ninety (90) days 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 Agreement. If a record
date is fixed, 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 ninety (90) days 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.
18
Delivery
of Certain Information.
Non-Reporting
Issuer.
Subject
to Section
8(b),
as long
as the Issuer is not subject to Section 13 or 15(d) of the 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.
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 Section
8(a)
hereof,
(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.
Periodic
Reports.
So long
as any Securities are Outstanding, 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 Commission under the Exchange Act, such reports or
statements to be so 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; provided
that if
the Issuer can not reasonably furnish the financial statements specified in
clause (i) or (ii)(A) or (B) above within the time periods specified, the Issuer
shall have such additional period as required to finish such reports and
statements so long as it is diligently pursuing the finishing of such reports
and statements.
19
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:
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, claims, 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.
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 Securities; provided,
however,
that
monies held in respect of the Securities remaining unclaimed at the end of
two
years after any 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, if any, 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. In the absence of
an
Order from the Issuer to return unclaimed funds to the Issuer, the Fiscal Agent
shall from time to time deliver all unclaimed funds to or as directed by
applicable escheat authorities, as determined by the Fiscal Agent in its sole
discretion, in accordance with the customary practices and procedures of the
Fiscal Agent.
20
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.
Reliance.
The
Fiscal Agent and any Paying Agent or Transfer Agent appointed by the Issuer
pursuant to Section
2
hereof
each may conclusively rely upon and 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.
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
9(e)
shall
extend to affiliates of the Fiscal Agent, such authenticating agent, any Paying
Agent or any Transfer Agent.
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 willful misconduct or negligence
on its part, request and conclusively rely upon a certificate signed by any
Authorized Officer of the Issuer and delivered to the Fiscal Agent.
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,
indirect, punitive, consequential or incidental damages.
21
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. The Fiscal Agent shall not be liable for any actions taken or not
taken hereunder, in the absence of its own negligence or willful
misconduct.
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.
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.
Directors,
Officers.
The
protections from liability provided to the Fiscal Agent hereunder, including
the
right to indemnification, shall extend to its directors, officers, employees
and
agents.
Resignation
and Appointment of Successor.
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.
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. $50,000,000) 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
9
hereof
of compensation for services rendered and to reimbursement of reasonable
out-of-pocket expenses incurred hereunder.
22
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 all or 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 or 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 (6) months, on behalf of such holder
and all others similarly situated, or the Fiscal Agent may petition any court
of
competent jurisdiction at the expense of the Issuer 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.
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 charges hereunder, including compensation,
and
reimbursement of its disbursements then unpaid, shall thereupon become obligated
to transfer, deliver 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.
23
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.
Payment
of Taxes.
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.
Amendments.
Approval.
With
the written consent of the registered holders 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 (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 (i) adding to the covenants
of
the Issuer for the benefit of the holders of Securities, (ii) surrendering
any
right or power conferred upon the Issuer, (iii) securing the Securities pursuant
to the requirements of the Securities or otherwise, (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
this Agreement, or (v) correcting or supplementing any defective provision
contained in the Securities or in this Agreement, and 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.
24
In
entering into any amendment hereof, the Fiscal Agent shall be entitled to
receive, and may conclusively rely on, an opinion of counsel that such amendment
is authorized or permitted by the terms of this Agreement.
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 therefor 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
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.
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.
“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:
(xv) |
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;
|
(xvi) |
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;
|
(xvii) |
Securities
which have been defeased pursuant to Section
15(b)
hereof; or
|
(xviii) |
Securities
in lieu of or in substitution for which other Securities shall have
been
authenticated and delivered pursuant to this
Agreement;
|
25
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.
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.
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
000
X.
Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx,
facsimile no. (000) 000-0000 or
if
sent to the Issuer shall be delivered, transmitted by facsimile, telexed or
telegraphed to it at 0000 Xxxxx 000xx Xxxxxx, Xxxxx, Xxxxxxxx 00000, Attention:
General Counsel, facsimile no. (000) 000-0000. 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.
Defeasance
(Legal and Covenant).
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
15(b)
or
Section
15(c)
applied
to the Outstanding Securities upon compliance with the conditions set forth
below in this Section
15.
Defeasance
and Discharge.
Upon
exercise by the Issuer of the option provided in Section
15(a)
applicable to this Section
15(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
15(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),
6,
7,
8(a),
8(b)
and
10
of this
Agreement and paragraphs 3, 4(a), 6, 10 (insofar as it relates to Sections
8(a)
and
8(b)
of this
Agreement), 11 and 12 of the Securities and (iii) this Section
15.
Subject
to compliance with this Section
15,
the
Issuer may exercise its option under this Section
15(b)
notwithstanding the prior exercise of its option under Section
15(c).
26
Covenant
Defeasance.
Upon
the Issuer’s exercise of the option provided in Section
15(a)
applicable to this Section
15(c),
the
Issuer shall be released from its obligations under paragraphs 7(iii), 8, and
9(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.
Conditions
to Defeasance and Covenant Defeasance.
The
following shall be the conditions to application of either Section
15(b)
or
Section
15(c)
to the
then Outstanding Securities:
(xix) |
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
15
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 certification
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 installment
of interest in accordance with the terms of this Agreement 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.
|
27
(xx) |
In
the case of an election under Section
15(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 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.
|
(xxi) |
In
the case of an election under Section
15(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.
|
(xxii) |
No
event of default under paragraph 7 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 7(iv) and (v) 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).
|
28
(xxiii) |
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.
|
(xxiv) |
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
15(b)
or
the Covenant Defeasance under Section
15(c)
(as the case may be) have been complied
with.
|
(xxv) |
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.
|
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
15(d)
in
respect of the Securities shall be held in trust (which in the case of cash,
shall be uninvested) 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. In the absence
of an Order from the Issuer to return unclaimed funds to the Issuer, the
Defeasance Trustee shall from time to time deliver all unclaimed funds to or
as
directed by applicable escheat authorities, as determined by the Defeasance
Trustee in its sole discretion, in accordance with the customary practices
and
procedures of the Defeasance Trustee.
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
15(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.
29
Anything
in this Section
15
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 15(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.
Reinstatement.
If the
Defeasance Trustee is unable to apply any money in accordance with Section
15(b)
or
15(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
15
until
such time as the Defeasance Trustee is permitted to apply all such money in
accordance with Section
15(b)
or
15(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.
Headings.
The
section headings herein are for convenience only and shall not affect the
construction hereof.
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.
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.
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.
Waiver
of
Jury Trial.
EACH
OF
THE ISSUER AND THE FISCAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTION
CONTEMPLATED HEREBY.
30
Force
Majeure.
In
no
event shall the Fiscal Agent be responsible or liable for any failure or delay
in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without
limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; it being understood that the Fiscal Agent
shall use reasonable efforts which are consistent with accepted practices in
the
banking industry to resume performance as soon as practicable under the
circumstances.
(SIGNATURE
PAGE FOLLOWS)
31
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
NORTHERN
NATURAL GAS COMPANY
By: /s/
Xxxxxx Xxxxx
Name: Xxxxxx
Xxxxx
Title: Vice
President, Finance
THE
BANK
OF NEW YORK TRUST COMPANY, N.A.,
as
Fiscal
Agent
By/s/
Xxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Vice President
32
EXHIBIT
A
FORM
OF SECURITY
[Form
of
Face
of
Security]
[If
this Security is a Global Security, insert—THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE FISCAL AGENCY AGREEMENT
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE U.S. DEPOSITORY
OR
A NOMINEE OF THE U.S. DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE U.S. DEPOSITORY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE FISCAL AGENCY AGREEMENT,
AND
NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE
BY THE U.S. DEPOSITORY TO A NOMINEE OF THE U.S. DEPOSITORY OR BY A NOMINEE
OF
THE U.S. DEPOSITORY TO THE U.S. DEPOSITORY OR ANOTHER NOMINEE OF THE U.S.
DEPOSITORY OR BY THE U.S. DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR U.S.
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR U.S. DEPOSITORY) MAY BE REGISTERED
EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS
THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE U.S.
DEPOSITORY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR
PAYMENT, AND ANY CERTIFICATE IS ISSUED IN THE NAME OR NAMES AS DIRECTED IN
WRITING BY THE U.S. DEPOSITORY, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED
HOLDER HEREOF, THE U.S. DEPOSITORY, HAS AN INTEREST HEREIN.]
[If
this Security is a Regulation S Temporary Global Security,
insert—THE
RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE SECURITIES,
ARE
AS SPECIFIED IN THE FISCAL AGENCY AGREEMENT (AS DEFINED HEREIN). NEITHER THE
HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL SECURITY
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.]
THIS
SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED (THE ‘‘ACT’’), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. BY ITS ACQUISITION OF THIS
SECURITY OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
A-1
1. |
REPRESENTS
THAT (A) IT IS A QUALIFIED INSTITUTIONAL BUYER, AS DEFINED IN RULE
144A
UNDER THE ACT, (B) IT IS AN ‘‘ACCREDITED INVESTOR’’ WITHIN THE MEANING OF
RULE 501(A)(1), (2), (3) OR (7) UNDER THE ACT, OTHER THAN A QUALIFIED
INSTITUTIONAL BUYER, OR (C) IT HAS ACQUIRED THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
ACT;
|
2. |
AGREES
THAT IT WILL OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR
TO THE
DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF
AND THE LAST DATE ON WHICH THE ISSUER, OR ANY OF ITS AFFILIATES WAS
THE
HOLDER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY
(A) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER, AS DEFINED IN RULE 144A, THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE ACT, (E)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN
THE MEANING OF REGULATION S UNDER THE ACT, OR (F) PURSUANT TO ANY
OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT
AND, IN
EACH OF THE CASES ABOVE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES
LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION;
|
3. |
AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST
HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND;
AND
|
4. |
AGREES
THAT, BEFORE THE HOLDER OFFERS, SELLS OR OTHERWISE TRANSFERS THIS
SECURITY, THE ISSUER MAY REQUIRE THE HOLDER OF THIS SECURITY TO DELIVER
A
WRITTEN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
THAT
IT REASONABLY REQUIRES TO CONFIRM THAT SUCH PROPOSED TRANSFER IS
BEING
MADE PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE
ACT.
|
AS
USED
IN THIS SECURITY, THE TERMS ‘‘OFFSHORE TRANSACTION,’’ ‘‘U.S. PERSON’’ AND
‘‘UNITED STATES’’ HAVE THE MEANINGS GIVEN TO THEM WITHIN REGULATION
S.
THE
FOREGOING LEGENDS MAY BE REMOVED FROM THE SECURITIES ON THE CONDITIONS SPECIFIED
IN THE FISCAL AGENCY AGREEMENT.
A-2
NORTHERN
NATURAL GAS COMPANY
5.800%
Senior Bonds due 2037
$[______________]
CUSIP
No.
[______________]
No. ___ [ISIN
No.
[______________]]
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 [name of registered holder or its
registered assigns] [if
this Security is a Global Security, insert-]
the
Initial Principal Amount specified on Schedule A hereto (such Initial Principal
Amount, as it may from time to time be adjusted by endorsement on Schedule
A
hereto, is hereinafter referred to as the “Principal
Amount”)]
[if
this Security is not a Global Security, insert-
the
principal sum of ________________ Dollars (the “Principal
Amount”)]
on
February 15, 2037 and to pay interest thereon from February 12, 2007 or from
the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually in arrears on February 15 and August 15 in each
year, commencing August 15, 2007 (each an “Interest
Payment Date”),
at
the rate of 5.800% 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 February 1 or August 1 (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 not 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.
[If
this Security is a Regulation S Temporary Global Security,
insert--Until
this Regulation S Temporary Global Security is exchanged for one or more
Regulation S Permanent Global Securities, the holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Security shall in all other respects be
entitled to the same benefits as other Securities under the Fiscal Agency
Agreement.]
A-3
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
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:
Name:
Title:
Attest:
By:
Name:
Title:
A-5
FISCAL
AGENT’S CERTIFICATE OF AUTHENTICATION
This
is
one of the Securities referred to in the within-mentioned Fiscal Agency
Agreement.
THE
BANK
OF NEW YORK TRUST COMPANY, N.A.,
as
Fiscal
Agent
By:
Date
of
Authentication:_________________
A-6
[Form
of
reverse
of
Security]
1. This
Security is one of a duly authorized issue of securities of the Issuer
designated as its 5.800% Senior Bonds due 2037 (herein called the “Securities”),
limited in aggregate principal amount to $150,000,000, issued and to be issued
in accordance with a Fiscal Agency Agreement, dated as of February 12, 2007
(herein called the “Fiscal
Agency Agreement”),
between the Issuer and The Bank of New York Trust Company, N.A., 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
000
X.
Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000.
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. [If
this Security is a Global Security, insert—This
Security is issuable only in fully registered form, without coupons, in minimum
denominations of U.S. $100,000 and integral multiples of $1,000 in excess of
$100,000.] [If
this Security is a Restricted Definitive Security, insert—This
Security is issuable only in fully registered form, without coupons, in minimum
denominations of U.S. $250,000 and integral multiples of $1,000 in excess of
$250,000.]
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 Chicago, and at its
agent’s office in the Borough of Manhattan, The City of New York, as its 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.
A-7
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 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.
[If
this Security is a Regulation S Temporary Global Security,
insert--This
Regulation S Temporary Global Security is exchangeable in whole or in part
for
one or more Global Securities only (i) on or after the termination of the 40-day
distribution compliance period (as defined in Regulation S) and (ii) upon
presentation of certificates required by Section
5(d)
of the
Fiscal Agency Agreement. Upon exchange of this Regulation S Temporary Global
Security for one or more Global Securities, the Fiscal Agent shall cancel this
Regulation S Temporary Global Security.]
(a) (a)The
Issuer shall pay to the Fiscal Agent at its principal office in Chicago,
Illinois, 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.
A-8
(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 on a day on which banking institutions
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.
4. The
Securities are subject to redemption upon not less than 30 or more than 60
days’
notice to the registered holders of such Securities, at any time, as a whole
or
in part, at the election of the Issuer, at a redemption price equal to the
greater of: (i) 100% of the Principal Amount of the Securities being redeemed
or
(ii) the sum of the present values of the remaining scheduled payments of
principal of and interest on the Securities being redeemed discounted to the
redemption date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at a discount rate equal to the Treasury Yield plus 20
basis points, plus, for (i) or (ii) above, whichever is applicable, accrued
interest on the Securities to the Redemption Date.
Notice
of
redemption pursuant to this Paragraph
5
shall be
given not less than 30 days nor more than 60 days prior to the Redemption
Date.
If
fewer
than all the Securities are to be redeemed, selection of Securities for
redemption will be made by the Fiscal Agent in any manner the Fiscal Agent
deems
fair and appropriate.
Unless
the Issuer defaults in payment of the redemption price, from and after the
Redemption Date, the Securities or portions thereof called for redemption will
cease to bear interest, and the holders thereof will have no right in respect
of
such Securities except the right to receive the redemption price
thereof.
[If
this Security is a Global Security, insert—In
the
event of redemption of this Security in part only, the Fiscal Agent will reduce
the Principal Amount hereof by endorsement on Schedule A hereto such that the
Principal Amount shown on Schedule A after such endorsement will reflect only
the unredeemed portion hereof.]
For
purposes of the Securities,
“Business
Day”
means
any day other than a Saturday, Sunday or a day on which banking institutions
in
The City of New York or the City of Chicago or at a place of payment are
authorized by law, regulation or executive order to remain closed.
“Comparable
Treasury Issue”
means
the United States Treasury security selected by an Independent Investment Banker
as having a maturity comparable to the remaining term of the Securities to
be
redeemed that would be utilized, at the time of selection and in accordance
with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Securities.
A-9
“Comparable
Treasury Price”
means,
with respect to any Redemption Date, (i) the average of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a percentage of
its
principal amount) on the third Business Day in New York City preceding such
Redemption Date, as set forth in the daily statistical release (or any successor
release) published by the Federal Reserve Bank of New York and designated
“Composite 3:30 p.m. Quotations for U.S. Government Securities” or (ii) if such
release (or any successor release) is not published or does not contain such
prices on such Business Day, the Reference Treasury Dealer Quotation for such
Redemption Date.
“Independent
Investment Banker”
means
an investment banking institution of international standing appointed by the
Issuer.
“Redemption
Date”
means
any date on which the Issuer redeems all or any portion of the Securities in
accordance with the terms hereof.
“Reference
Treasury Dealer”
means
a
primary U.S. government securities dealer in New York City appointed by the
Issuer.
“Reference
Treasury Dealer Quotation”
means,
with respect to the Reference Treasury Dealer and any Redemption Date, the
average, as determined by the Issuer, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount and quoted in writing to the Issuer by such Reference Treasury
Dealer at 5:00 p.m. on the third Business Day in New York City preceding such
Redemption Date).
“Treasury
Yield”
means,
with respect to any Redemption Date, the rate per annum equal to the semiannual
equivalent yield to maturity of the Comparable Treasury Issue, assuming a price
for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such Redemption
Date.
5. The
Issuer 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:
(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
A-10
(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, receiver, 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 such
action;
the
registered holders 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 and/or one or more Subsidiaries
of
the Issuer. For the purposes 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.
A-11
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 Issuer 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 liquefied 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 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;
A-12
(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 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);
A-13
(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
8,
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
8,
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
8.
“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; 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.
A-14
“Indebtedness”
as
applied to any corporation, means 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 or
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, metal, mineral, 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, metals, minerals,
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 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 or
the production or any proceeds of production 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.
A-15
(a) (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) (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 and interest on at 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
7),
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
8
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
9
and that
all conditions precedent herein provided for relating to such transaction have
been complied with.
(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
9(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.
A-16
8. Section
8
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.
9. 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.
10. If
any
mutilated Security is surrendered to the Fiscal Agent, the Issuer shall execute,
and the Fiscal Agent shall authenticate and deliver in exchange therefor, 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
12,
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
12
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
12
shall be
so dated that neither gain nor loss in interest shall result from such
exchange.
The
provisions of this Paragraph
12
are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
11. Section
12 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
9
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.
A-17
12. 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.
13. This
Security is subject to the provisions of Section 15 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.
14. Pursuant
to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Issuer will cause CUSIP numbers to be printed
on
the Securities as a convenience to the holders of the Securities. [If
this Security is a Regulation S Security, insert- This
Security will also bear an ISIN number.] No representation is made as to the
accuracy of such numbers as printed on the Securities and reliance may be placed
only on the other identification numbers printed hereon.
15. THIS
SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK.
A-18
[IF
THIS SECURITY IS A GLOBAL SECURITY, INSERT AS A SEPARATE
PAGE-]
Schedule
A
SCHEDULE
OF ADJUSTMENTS
Initial
Principal Amount: U.S. $___________________
Date
|
Principal
|
Principal
|
Principal
amount
|
Notation
made
|
adjustment
|
amount
|
amount
|
following
|
on
behalf of the
|
made
|
increase
|
decrease
|
adjustment
|
Transfer
Agent
|
A-1
EXHIBIT
B
FORM
OF TRANSFER CERTIFICATE
FOR
TRANSFER OR EXCHANGE FROM REGULATION S
GLOBAL
SECURITY TO RULE 000X XXXXXX XXXXXXXX
Xxx
Xxxx
xx Xxx Xxxx Trust Company, N.A.
000
X.
Xxxxxx Xxxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Administration/Xxxxxx Xxxxxx
Re
:
|
NORTHERN
NATURAL GAS COMPANY
|
5.800% SENIOR BONDS DUE 2037 |
Reference
is hereby made to the Fiscal Agency Agreement, dated as of February 12,
2007 (the “Fiscal
Agency Agreement”),
between Northern Natural Gas Company and The Bank of New York Trust Company,
N.A., as Fiscal Agent. Capitalized terms used but not defined herein shall
have
the meanings given to them in the Fiscal Agency Agreement.
This
letter relates to U.S. $_________ principal amount of Securities which are
evidenced by one or more Regulation S Global Securities in fully registered
form
(CUSIP No. X00000XX0; XXXX Xx. XX00000XX00) and held with the U.S. Depository
by
means of a book-entry interest through Euroclear or Clearstream in the name
of
[insert name of transferor] (the “Transferor”).
The
Transferor has requested a transfer of such beneficial interest in the
Regulation S Global Security to a Person that will take delivery thereof (the
“Transferee”)
in the
form of any equal principal amount of Securities evidenced by one or more Rule
144A Global Securities (CUSIP No. 000000XX0).
In
connection with such request and in respect of such Securities, the Transferor
does hereby certify that the interests in the Regulation S Global Security
are
being transferred pursuant to and in accordance with Rule 144A under United
States Securities Act of 1933, as amended (the “Act”),
and,
accordingly, the Transferor does hereby further certify that the interests
in
the Regulation S Global Security are being transferred to a Person that the
Transferor reasonably believes is purchasing the Securities for its own account,
or for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a “qualified
institutional buyer” within the meaning of Rule 144A, in each case in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States.
B-1
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer and the underwriters and initial purchasers of the
Securities being transferred.
[Insert
Name of Transferor]
By:
Name:
Title:
Dated:
__________
cc: NORTHERN
NATURAL GAS COMPANY
Signature
Guaranty:_____________________
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Transfer Agent, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”)
or
such other “signature guarantee program” as may be determined by the Transfer
Agent in addition to, or in substitution for, STAMP, all in accordance with
the
Securities Exchange Act of 1934, as amended.
B-2
EXHIBIT
C
FORM
OF TRANSFER CERTIFICATE FOR
TRANSFER
OR EXCHANGE FROM REGULATION S GLOBAL
SECURITY
TO RESTRICTED DEFINITIVE SECURITY
The
Bank
of New York Trust Company, N.A.
000
X.
Xxxxxx Xxxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Administration/Xxxxxx Xxxxxx
Re
:
|
NORTHERN
NATURAL GAS COMPANY
|
5.800% SENIOR BONDS DUE 2037 |
Reference
is hereby made to the Fiscal Agency Agreement, dated as of February 12,
2007 (the “Fiscal
Agency Agreement”),
between Northern Natural Gas Company and The Bank of New York Trust Company,
N.A., as Fiscal Agent. Capitalized terms used but not defined herein shall
have
the meanings given to them in the Fiscal Agency Agreement.
This
letter relates to U.S. $___________ principal amount of Securities which are
evidenced by one or more Regulation S Global Securities in fully registered
form
(CUSIP No. X00000XX0; XXXX Xx. XX00000XX00) and held with the U.S. Depository
by
means of a book-entry interest through Euroclear or Clearstream in the name
of
[insert name of transferor] (the “Transferor”).
The
Transferor has requested a transfer of such beneficial interest in the
Regulation S Global Security to a Person that will take delivery thereof (the
“Transferee”)
in the
form of an equal principal amount of Securities evidenced by a Restricted
Definitive Security.
In
connection with such request and in respect of such Securities, the Transferor
does hereby certify that the interests in the Regulation S Global Security
are
being transferred to a Person that the Transferor reasonably believes is
purchasing the Securities for its own account, or for one or more accounts
with
respect to which such Person exercises sole investment discretion, and such
Person and each such account is an institutional “accredited investor” as
described in Rule 501(a)(1), (2), (3) or (7) under the Unites States Securities
Act of 1933, as amended (the “Act”),
and
is purchasing such Securities for investment purposes and not with a view to,
or
for offer or sale in connection with, any distribution in violation of the
Act,
in a transaction in accordance with any applicable securities laws of the United
States or any state thereof.
C-1
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer and the underwriters and initial purchasers of the
Securities being transferred.
[Insert
Name of Transferor]
By:
Name:
Title:
Dated:____________
cc: NORTHERN
NATURAL GAS COMPANY
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Transfer Agent, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”)
or
such other “signature guarantee program” as may be determined by the Transfer
Agent in addition to, or in substitution for, STAMP, all in accordance with
the
Securities Exchange Act of 1934, as amended.
C-2
EXHIBIT
D
FORM
OF TRANSFER CERTIFICATE
FOR
EXCHANGE OR TRANSFER FROM REGULATION S GLOBAL
SECURITY
TO UNRESTRICTED GLOBAL SECURITY
The
Bank
of New York Trust Company, N.A.
000
X.
Xxxxxx Xxxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Administration/Xxxxxx Xxxxxx
Re:
|
NORTHERN
NATURAL GAS COMPANY
|
5.800% SENIOR BONDS DUE 2037 |
Reference
is hereby made to the Fiscal Agency Agreement, dated as of February 12,
2007 (the “Fiscal
Agency Agreement”),
between Northern Natural Gas Company and The Bank of New York Trust Company,
N.A., as Fiscal Agent. Capitalized terms used but not defined herein shall
have
the meanings given to them in the Fiscal Agency Agreement.
This
letter relates to U.S.$ _________ principal amount of Securities which are
evidenced by one or more Regulation S Global Securities (CUSIP No. X00000XX0;
ISIN No. US66480AD32) and held with the U.S. Depository by means of a book-entry
interest through Euroclear or Clearstream in the name of [insert name of
transferor] (the “Transferor”).
The
Transferor has requested a transfer of such beneficial interest in the
Securities to a Person who will take delivery thereof in the form of an equal
principal amount of Securities evidenced by one or more unrestricted Global
Securities (CUSIP No. 000000XX0).
In
connection with such request and in respect of such Securities, the Transferor
does hereby certify that such transfer has been effected pursuant to and in
accordance with either Rule 903, Rule 904 or Rule 144 under the Unites States
Securities Act of 1933, as amended (the “Act”),
and
accordingly the Transferor does hereby further certify that:
(1) if
the
transfer has been effected pursuant to Rule 903 or Rule 904:
(a) the
offer
of the Securities was not made to a Person in the United States;
(b) either:
(i) at
the
time the buy order was originated, the transferee was outside the United States
or the Transferor and any Person acting on its behalf reasonably believed that
the transferee was outside the United States, or
D-1
(ii) the
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither the Transferor nor any Person acting
on
its behalf knows that the transaction was pre-arranged with a buyer in the
United States;
(c) no
directed selling efforts have been made in contravention of the requirements
of
Rule 903(b) or 904(b) of Regulation S, as applicable; and
(d) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Act; or
(2) if
the
transfer has been effected pursuant to Rule 144, the Securities have been
transferred in a transaction permitted by Rule 144.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer and the underwriters and initial purchasers, if any,
of the Securities being transferred. Terms used in this certificate and not
otherwise defined in the Fiscal Agency Agreement have the meanings set forth
in
Regulation S under the Act.
[Insert
Name of Transferor]
By:
Name:
Title:
Dated:
_____________
cc:
NORTHERN NATURAL GAS COMPANY
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Transfer Agent, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”)
or
such other “signature guarantee program” as may be determined by the Transfer
Agent in addition to, or in substitution for, STAMP, all in accordance with
the
Securities Exchange Act of 1934, as amended.
D-2
EXHIBIT
E
FORM
OF TRANSFER CERTIFICATE
FOR
EXCHANGE OR TRANSFER FROM RULE 144A GLOBAL
SECURITY
TO REGULATION S GLOBAL SECURITY
The
Bank
of New York Trust Company, N.A.
000
X.
Xxxxxx Xxxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Administration/Xxxxxx Xxxxxx
Re:
|
NORTHERN
NATURAL GAS COMPANY
|
5.800% SENIOR BONDS DUE 2037 |
Reference
is hereby made to the Fiscal Agency Agreement, dated as of February 12,
2007 (the “Fiscal
Agency Agreement”),
between Northern Natural Gas Company and The Bank of New York Trust Company,
N.A., as Fiscal Agent. Capitalized terms used but not defined herein shall
have
the meanings given to them in the Fiscal Agency Agreement.
This
letter relates to U.S.$ ________ principal amount of Securities which are
evidenced by one or more Rule 144A Global Securities (CUSIP No. 000000XX0)
and
held through the U.S. Depository in the name of [insert name of transferor]
(the
“Transferor”).
The
Transferor has requested a transfer of such beneficial interest in the
Securities to a non-U.S. person who will take delivery thereof in the form
of an
equal principal amount of Securities evidenced by one or more Regulation S
Global Securities (CUSIP No. X00000XX0; ISIN No. US66480AD32), which amount,
immediately after such transfer, is to be held with the U.S. Depository through
Euroclear or Clearstream (Common Code _______).
In
connection with such request and in respect of such Securities, the Transferor
does hereby certify that such transfer has been effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Unites States Securities Act
of
1933, as amended (the “Act”),
and
accordingly the Transferor does hereby further certify that:
(1) the
offer
of the Securities was not made to a Person in the United States;
(2) either:
(a) at
the
time the buy order was originated, the transferee was outside the United States
or the Transferor and any Person acting on its behalf
reasonably believed that the transferee was outside the United States, or
(b) the
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither the Transferor nor any Person acting
on
its behalf knows that the transaction was pre-arranged with a buyer in the
United States;
E-1
(3) no
directed selling efforts have been made in contravention of the requirements
of
Rule 903(b) or 904(b) of Regulation S, as applicable;
(4) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Act; and
(5) upon
completion of the transaction, the beneficial interest being transferred as
described above is to be held with the U.S. Depository through Euroclear or
Clearstream (Common Code ___________).
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer and the underwriters or initial purchasers, if any,
of
the initial offering of such Securities being transferred. Terms used in this
certificate and not otherwise defined in the Fiscal Agency Agreement have the
meanings set forth in Regulation S under the Act.
[Insert
Name of Transferor]
By:
Name:
Title:
Dated:
________________
cc: NORTHERN
NATURAL GAS COMPANY
Signature
Guaranty:____________________
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Transfer Agent, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”)
or
such other “signature guarantee program” as may be determined by the Transfer
Agent in addition to, or in substitution for, STAMP, all in accordance with
the
Securities Exchange Act of 1934, as amended.
E-2
EXHIBIT
F
FORM
OF TRANSFER CERTIFICATE
FOR
EXCHANGE OR TRANSFER FROM RULE 144A GLOBAL
SECURITY
TO RESTRICTED DEFINITIVE SECURITY
The
Bank
of New York Trust Company, N.A.
000
X.
Xxxxxx Xxxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Administration/Xxxxxx Xxxxxx
Re:
|
NORTHERN
NATURAL GAS COMPANY
|
5.800% SENIOR BONDS DUE 2037 |
Reference
is hereby made to the Fiscal Agency Agreement, dated as of February 12,
2007 (the “Fiscal
Agency Agreement”),
between Northern Natural Gas Company and The Bank of New York Trust Company,
N.A., as Fiscal Agent. Capitalized terms used but not defined herein shall
have
the meanings given to them in the Fiscal Agency Agreement.
This
letter relates to U.S.$ _________ principal amount of Securities which are
evidenced by one or more Rule 144A Global Securities (CUSIP No. 00000XX0) and
held through the U.S. Depository in the name of [insert name of transferor]
(the
“Transferor”).
The
Transferor has requested a transfer of such beneficial interest in the
Securities to a Person who will take delivery thereof in the form of an equal
principal amount of Securities evidenced by a Restricted Definitive
Security.
In
connection with such request and in respect of such Securities, the Transferor
does hereby certify that the interests in the Rule 144A Global Security are
being transferred to a Person that the Transferor reasonably believes is
purchasing the Securities for its own account, or for one or more accounts
with
respect to which such Person exercises sole investment discretion, and such
Person and each such account is an institutional “accredited investor” as
described in Rule 501(a)(1), (2), (3) or (7) under the Unites States Securities
Act of 1933, as amended (the “Act”),
and
is purchasing such Securities for investment purposes and not with a view to,
or
for offer or sale in connection with, any distribution in violation of the
Act,
in a transaction in accordance with any applicable securities laws of the United
States or any state thereof.
F-1
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer and the underwriters and initial purchasers, if any,
of the Securities being transferred.
[Insert
Name of Transferor]
By:
Name:
Title:
Dated:
____________
cc:
NORTHERN NATURAL GAS COMPANY
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Transfer Agent, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”)
or
such other “signature guarantee program” as may be determined by the Transfer
Agent in addition to, or in substitution for, STAMP, all in accordance with
the
Securities Exchange Act of 1934, as amended.
F-2
EXHIBIT
G
FORM
OF TRANSFER CERTIFICATE
FOR
EXCHANGE OR TRANSFER FROM RULE 144A GLOBAL
SECURITY
TO UNRESTRICTED GLOBAL SECURITY
The
Bank
of New York Trust Company, N.A.
000
X.
Xxxxxx Xxxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Administration/Xxxxxx Xxxxxx
Re:
|
NORTHERN
NATURAL GAS COMPANY
|
5.800% SENIOR BONDS DUE 2037 |
Reference
is hereby made to the Fiscal Agency Agreement, dated as of February 12,
2007 (the “Fiscal
Agency Agreement”),
between Northern Natural Gas Company and The Bank of New York Trust Company,
N.A., as Fiscal Agent. Capitalized terms used but not defined herein shall
have
the meanings given to them in the Fiscal Agency Agreement.
This
letter relates to U.S.$ _________ principal amount of Securities which are
evidenced by one or more Rule 144A Global Securities (CUSIP No. 000000XX0)
and
held through the U.S. Depository in the name of [insert name of transferor]
(the
“Transferor”).
The
Transferor has requested a transfer of such beneficial interest in the
Securities to a Person who will take delivery thereof in the form of an equal
principal amount of Securities evidenced by one or more unrestricted Global
Securities (CUSIP No._________).
In
connection with such request and in respect of such Securities, the Transferor
does hereby certify that such transfer has been effected pursuant to and in
accordance with either Rule 903, Rule 904 or Rule 144 under the Unites States
Securities Act of 1933, as amended (the “Act”),
and
accordingly the Transferor does hereby further certify that:
(1) if
the
transfer has been effected pursuant to Rule 903 or Rule 904:
(a) the
offer
of the Securities was not made to a Person in the United States;
(b) either:
(i) at
the
time the buy order was originated, the transferee was outside the United States
or the Transferor and any Person acting on its behalf reasonably believed that
the transferee was outside the United States, or
G-1
(ii) the
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither the Transferor nor any Person acting
on
its behalf knows that the transaction was pre-arranged with a buyer in the
United States;
(c) no
directed selling efforts have been made in contravention of the requirements
of
Rule 903(b) or 904(b) of Regulation S, as applicable; and
(d) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Act; or
(2) if
the
transfer has been effected pursuant to Rule 144, the Securities have been
transferred in a transaction permitted by Rule 144.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer and the underwriters and initial purchasers, if any,
of the Securities being transferred. Terms used in this certificate and not
otherwise defined in the Fiscal Agency Agreement have the meanings set forth
in
Regulation S under the Act.
[Insert
Name of Transferor]
By:
Name:
Title:
Dated:
_____________
cc:
NORTHERN NATURAL GAS COMPANY
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Transfer Agent, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”)
or
such other “signature guarantee program” as may be determined by the Transfer
Agent in addition to, or in substitution for, STAMP, all in accordance with
the
Securities Exchange Act of 1934, as amended.
G-2
EXHIBIT
H
FORM
OF TRANSFER CERTIFICATE
FOR
TRANSFER AND EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES
The
Bank
of New York Trust Company, N.A.
000
X.
Xxxxxx Xxxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Administration/Xxxxxx Xxxxxx
Re:
|
NORTHERN
NATURAL GAS COMPANY
|
5.800% SENIOR BONDS DUE 2037 |
Reference
is hereby made to the Fiscal Agency Agreement, dated as of February 12,
2007 (the “Fiscal
Agency Agreement”),
between Northern Natural Gas Company and The Bank of New York Trust Company,
N.A., as Fiscal Agent. Capitalized terms used but not defined herein shall
have
the meanings given to them in the Fiscal Agency Agreement.
This
letter relates to U.S. $________________ principal amount of Securities
presented or surrendered on the date hereof (the “Surrendered
Securities”)
which
are registered in the name of [insert name of transferor] (the “Transferor”).
The
Transferor has requested a transfer of such Surrendered Securities registered
in
the name of a Person (the “Transferee”)
other
than the Transferor (each such transaction being referred to herein as a
“transfer”).
In
connection with such request and in respect of such Surrendered Securities,
the
Transferor does hereby certify that:
[CHECK
ONE]
r
|
(1)
|
the
Surrendered Securities are being transferred to the Issuer or an
Affiliate
thereof;
|
r |
(2)
|
the
Surrendered Securities are being transferred pursuant to and in accordance
with Rule 144A under the United States Securities Act of 1933, as
amended
(the “Act”)
and, accordingly, the Transferor does hereby further certify that
the
Surrendered Securities are being transferred to a Person that the
Transferor reasonably believes is purchasing the Surrendered Securities
for its own account, or for one or more accounts with respect to
which
such Person exercises sole investment discretion, and such Person
and each
such account is a “qualified institutional buyer” within the meaning of
Rule 144A, in each case in a transaction meeting the requirements
of Rule
144A and in accordance with any applicable securities laws of any
state of
the United States;
|
H-1
r |
(3)
|
the
Surrendered Securities are being transferred to a Person that the
Transferor reasonably believes is purchasing the Surrendered Securities
for its own account or for one or more accounts with respect to which
such
Person exercise sole investment discretion, and such Person and each
such
account is an institutional “accredited investor” as described in Rule
501(a)(1), (2), (3) or (7) under the Act and is purchasing such
Surrendered Securities for investment purposes and not with a view
to, or
for offer or sale in connection with, any distribution in violation
of the
Act in a transaction in accordance with any applicable securities
laws of
the United States or any state thereof.
|
or
|
||
r |
(4)
|
the
Surrendered Securities are being transferred pursuant to and in accordance
with Regulation S and:
|
(a) the
offer
of the Surrendered Securities was not made to a Person in the United States;
(b) either:
(i) at
the
time the buy order was originated, the transferee was outside the United States
or the Transferor and any Person acting on its behalf reasonably believed that
the transferee was outside the United States, or
(ii) the
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither the Transferor nor any Person acting
on
its behalf knows that the transaction was prearranged with a buyer in the United
States;
(c) no
directed selling efforts have been made in contravention of the requirements
of
Rule 903(b)
or
904(b) of
Regulation S, as applicable; and
(d) the
transaction is not part of a plan or scheme to evade the registration
requirements of the
Act;
or
r
|
(5)
|
the
Surrendered Securities are being transferred in a transaction permitted
by
Rule 144.
|
H-2
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer and the underwriters and initial purchasers of the
Securities being transferred.
[Insert
Name of Transferor]
By:
Name:
Title:
Dated:________________
cc: NORTHERN
NATURAL GAS COMPANY
Signature
Guaranty:_____________________
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Transfer Agent, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”)
or
such other “signature guarantee program” as may be determined by the Transfer
Agent in addition to, or in substitution for, STAMP, all in accordance with
the
Securities Exchange Act of 1934, as amended.
H-3