PAA NATURAL GAS STORAGE, L.P., PNG FINANCE CORP. and U.S. BANK NATIONAL ASSOCIATION as Trustee SENIOR INDENTURE Dated as of _______, DEBT SECURITIES (UNLIMITED)
Exhibit 4.1
PAA NATURAL GAS STORAGE, L.P.,
and
U.S. BANK NATIONAL ASSOCIATION
as Trustee
Dated as of _______,
DEBT SECURITIES
(UNLIMITED)
TABLE OF CONTENTS
ARTICLE I |
||||
Definitions |
||||
Section 1.01. Certain Terms Defined |
1 | |||
Section 1.02. Other Definitions |
7 | |||
Section 1.03. Incorporation by Reference of Trust Indenture Act |
7 | |||
Section 1.04. Rules of Construction |
8 | |||
ARTICLE II |
||||
Debt Securities |
||||
Section 2.01. Forms Generally |
8 | |||
Section 2.02. Form of Trustee’s Certificate of Authentication |
9 | |||
Section 2.03. Principal Amount; Issuable in Series |
9 | |||
Section 2.04. Execution of Debt Securities |
12 | |||
Section 2.05. Authentication and Delivery of Debt Securities |
12 | |||
Section 2.06. Denomination of Debt Securities |
13 | |||
Section 2.07. General Provisions for Registration of Transfer and Exchange |
13 | |||
Section 2.08. Temporary Debt Securities |
15 | |||
Section 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities |
15 | |||
Section 2.10. Cancellation of Surrendered Debt Securities |
16 | |||
Section 2.11. Provisions of this Indenture and Debt Securities for the Sole Benefit of
the Parties and the Holders |
16 | |||
Section 2.12. Payment of Interest; Rights Preserved |
16 | |||
Section 2.13. Securities Denominated in Foreign Currencies |
17 | |||
Section 2.14. Wire Transfers |
17 | |||
Section 2.15. Securities Issuable in the Form of a Global Security |
18 | |||
Section 2.16. Medium Term Securities |
20 | |||
Section 2.17. Defaulted Interest |
20 | |||
Section 2.18. Judgments |
21 | |||
Section 2.19. CUSIP Numbers |
22 | |||
ARTICLE III |
||||
Redemption of Debt Securities |
||||
Section 3.01. Applicability of Article |
22 | |||
Section 3.02. Notice of Redemption; Selection of Debt Securities |
22 | |||
Section 3.03. Payment of Debt Securities Called for Redemption |
23 | |||
Section 3.04. Mandatory and Optional Sinking Funds |
24 | |||
Section 3.05. Redemption of Debt Securities for Sinking Fund |
25 | |||
ARTICLE IV |
||||
Particular Covenants of the Issuers |
||||
Section 4.01. Payment of Principal of, and Premium, If Any, and Interest on, Debt
Securities |
26 | |||
Section 4.02. Maintenance of Offices or Agencies for Registration of Transfer, Exchange
and Payment of Debt Securities |
27 | |||
Section 4.03. Appointment to Fill a Vacancy in the Office of Trustee |
27 |
i
Section 4.04. Duties of Paying Agents, etc. |
27 | |||
Section 4.05. Statement by Officers as to Default |
28 | |||
Section 4.06. Further Instruments and Acts |
28 | |||
Section 4.07. Corporate, Partnership or Limited Liability Company Existence |
29 | |||
Section 4.08. Maintenance of Properties |
29 | |||
Section 4.09. Payment of Taxes and Other Claims |
29 | |||
Section 4.10. Calculation of Original Issue Discount |
30 | |||
Section 4.11. Stay, Extension and Usury Laws |
30 | |||
ARTICLE V Holders’ Lists and Reports by the Issuers and the Trustee |
||||
Section 5.01. Issuers to Furnish Trustee Information as to Names and Addresses of
Holders; Preservation of Information |
30 | |||
Section 5.02. Communications to Holders; Meetings of Holders |
30 | |||
Section 5.03. Reports by Issuers |
31 | |||
Section 5.04. Reports by Trustee |
32 | |||
Section 5.05. Record Dates for Action by Holders |
32 | |||
ARTICLE VI |
||||
Remedies of the Trustee and Holders in Event of Default |
||||
Section 6.01. Events of Default |
32 | |||
Section 6.02. Collection of Indebtedness by Trustee, etc. |
34 | |||
Section 6.03. Application of Moneys Collected by Trustee |
35 | |||
Section 6.04. Limitation on Suits by Holders |
36 | |||
Section 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver
of Default |
36 | |||
Section 6.06. Rights of Holders of Majority in Principal Amount of Debt Securities to
Direct Trustee and to Waive Default |
37 | |||
Section 6.07. Trustee to Give Notice of Defaults Known to It, but May Withhold Such
Notice in Certain Circumstances |
37 | |||
Section 6.08. Requirement of an Undertaking To Pay Costs in Certain Suits under this
Indenture or Against the Trustee |
37 | |||
ARTICLE VII |
||||
Concerning the Trustee |
||||
Section 7.01. Certain Duties and Responsibilities |
38 | |||
Section 7.02. Certain Rights of Trustee |
39 | |||
Section 7.03. Trustee Not Liable for Recitals in Indenture or in Debt Securities |
40 | |||
Section 7.04. Trustee, Paying Agent or Registrar May Own Debt Securities |
41 | |||
Section 7.05. Moneys Received by Trustee to Be Held in Trust |
41 | |||
Section 7.06. Compensation and Reimbursement |
41 | |||
Section 7.07. Right of Trustee to Rely on an Officers’ Certificate Where No Other
Evidence Specifically Prescribed |
42 | |||
Section 7.08. Separate Trustee; Replacement of Trustee |
42 | |||
Section 7.09. Successor Trustee by Merger |
43 | |||
Section 7.10. Eligibility; Disqualification |
44 | |||
Section 7.11. Preferential Collection of Claims Against Issuers |
44 |
ii
Section 7.12. Compliance with Tax Laws |
44 | |||
ARTICLE VIII |
||||
Concerning the Holders |
||||
Section 8.01. Evidence of Action by Holders |
44 | |||
Section 8.02. Proof of Execution of Instruments and of Holding of Debt Securities |
44 | |||
Section 8.03. Who May Be Deemed Owner of Debt Securities |
45 | |||
Section 8.04. Instruments Executed by Holders Bind Future Holders |
45 | |||
ARTICLE IX |
||||
Amendment, Supplement and Waiver |
||||
Section 9.01. Without Consent of Holders of Debt Securities |
46 | |||
Section 9.02. With Consent of Holders of Debt Securities |
47 | |||
Section 9.03. Effect of Supplemental Indentures |
48 | |||
Section 9.04. Debt Securities May Bear Notation of Changes by Supplemental Indentures |
48 | |||
ARTICLE X |
||||
Consolidation, Merger, Sale or Conveyance |
||||
Section 10.01. Consolidations and Mergers of the Issuers |
49 | |||
Section 10.02. Rights and Duties of Successor Company |
49 | |||
ARTICLE XI |
||||
Satisfaction and Discharge of Indenture; Unclaimed Moneys |
||||
Section 11.01. Satisfaction and Discharge; Application of Trust Money |
50 | |||
Section 11.02. Repayment to Issuers |
51 | |||
Section 11.03. Indemnity for U.S. Government Obligations |
51 | |||
Section 11.04. Reinstatement |
51 | |||
ARTICLE XII |
||||
Miscellaneous Provisions |
||||
Section 12.01. Successors and Assigns of Issuers Bound by Indenture |
52 | |||
Section 12.02. Acts of Board, Committee or Officer of Successor Company Valid |
52 | |||
Section 12.03. Required Notices or Demands |
52 | |||
Section 12.04. Indenture and Debt Securities to Be Construed in Accordance with the Laws
of the State of New York |
52 | |||
Section 12.05. Officers’ Certificate and Opinion of Counsel to Be Furnished upon
Application or Demand by the Issuers |
53 | |||
Section 12.06. Payments Due on Legal Holidays |
53 | |||
Section 12.07. Provisions Required by Trust Indenture Act to Control |
53 | |||
Section 12.08. Computation of Interest on Debt Securities |
53 | |||
Section 12.09. Rules by Trustee, Paying Agent and Xxxxxxxxx |
00 | |||
Section 12.10. No Recourse Against Others |
54 | |||
Section 12.11. Severability |
54 | |||
Section 12.12. Effect of Headings |
54 | |||
Section 12.13. Indenture May Be Executed in Counterparts |
54 |
iii
CROSS-REFERENCE TABLE
Trust Indenture | Indenture | |||
Act Section | Section | |||
310(a)(1) |
7.10 | |||
(a)(2) |
7.10 | |||
(a)(3) |
N/A | |||
(a)(4) |
N/A | |||
(a)(5) |
7.10 | |||
(b) |
7.10 | |||
(c) |
N/A | |||
311(a) |
7.11 | |||
(b) |
7.11 | |||
(c) |
N/A | |||
312(a) |
5.01 | |||
(b) |
5.02 | |||
(c) |
5.02 | |||
313(a) |
5.04 | |||
(b)(1) |
5.04 | |||
(b)(2) |
5.04 | |||
(c) |
5.04; 12.03 | |||
(d) |
5.04 | |||
314(a) |
5.03; 12.03 | |||
(b) |
N/A | |||
(c)(1) |
12.05 | |||
(c)(2) |
12.05 | |||
(c)(3) |
N/A | |||
(d) |
N/A | |||
(e) |
12.05 | |||
(f) |
N/A | |||
315(a) |
7.01 | |||
(b) |
6.07; 12.03 | |||
(c) |
7.01 | |||
(d) |
7.01 | |||
(e) |
6.03 | |||
316(a)(last sentence) |
1.01 | |||
(a)(1)(A) |
6.06 | |||
(a)(1)(B) |
6.06 | |||
(a)(2) |
N/A | |||
(b) |
6.04 | |||
(c) |
2.17 | |||
317(a)(1) |
6.02 | |||
(a)(2) |
6.09 | |||
(b) |
404 |
iv
Trust Indenture | Indenture | |||
Act Section | Section | |||
318(a) |
12.07 | |||
(b) |
N/A | |||
(c) |
12.07 |
N/A means not applicable. |
v
THIS SENIOR INDENTURE dated as of __________ (the “Indenture”), is among PAA NATURAL
GAS STORAGE, L.P., a Delaware limited partnership (the “Partnership”), PNG FINANCE CORP., a
Delaware corporation (“PNG Finance” and, together with the Partnership, the
“Issuers”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association (the
“Trustee”).
WITNESSETH:
WHEREAS, PNGS GP LLC, a Delaware limited liability company (the “General Partner”), as
general partner of the Partnership, and PNG Finance have duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of their debentures, notes, bonds
or other evidences of indebtedness to be issued in one or more series in an unlimited aggregate
principal amount (herein called the “Debt Securities”), as in this Indenture provided.
WHEREAS, all things necessary to make this Indenture a valid agreement of the Issuers, in
accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for
good and valuable consideration, the sufficiency of which is hereby acknowledged, the Issuers and
the Trustee hereby agree with each other, for the equal and proportionate benefit of the respective
Holders from time to time of the Debt Securities or any series thereof, as follows:
ARTICLE I
Definitions
Definitions
SECTION 1.01. Certain Terms Defined. The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any Indenture supplemental hereto shall have the respective
meanings specified in this Section 1.01. All other terms used in this Indenture which are
defined in the Trust Indenture Act or which are by reference therein defined in the Securities Act
(except as herein otherwise expressly provided or unless the context otherwise requires), shall
have the meanings assigned to such terms in the Trust Indenture Act and in the Securities Act as in
force as of the date of original execution of this Indenture.
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the
relief of debtors.
“Board of Directors” means (a) with respect to the Partnership, the board of directors
of the General Partner, and (b) with respect to PNG Finance, its board of directors, or, in each
case, with respect to any determination or resolution required or permitted to be made hereunder,
any duly authorized committee or subcommittee of such board. All references in this Indenture to
“Board of Directors” shall be deemed to refer to the Board of Directors of the Partnership, unless
otherwise expressly indicated or the context otherwise requires.
“Board Resolution” means a copy of a resolution certified by the appropriate person to
have been duly adopted by the Board of Directors and to be in full force and effect on the date of
such certification.
“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in Houston, Texas, the Borough of Manhattan, the City of New
York, New York, or the city in which the Corporate Trust Office of the Trustee is located, are
authorized or obligated by law or executive order to close.
“Certificate
of Authentication” means the Trustee’s Certificate of
Authentication as described in Section 2.02.
“Code” means the Internal Revenue Code of 1986, as amended from time to time and any
successor statute.
“Commission” means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or, if at any time after the execution of this
Indenture such Commission is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such time.
“Corporate Trust Office of the Trustee” means the corporate trust office of the
Trustee at which at any particular time its corporate trust business in Houston, Texas, shall be
administered, which office at the date of execution of this Indenture is located at 0000 Xxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: Corporate Trust Services.
“Currency” means Dollars or Foreign Currency.
“Debt Security” or “Debt Securities” has the meaning stated in the first
recital of this Indenture and more particularly means any debt security or debt securities, as the
case may be, of any series authenticated and delivered under this Indenture.
“Default” means any event that is, or with the passage of time or the giving of notice
or both would be, an Event of Default.
“Depositary” means, unless otherwise specified by the Issuers pursuant to either
Section 2.03 or 2.15, with respect to registered Debt Securities of any series
issuable or issued in whole or in part in the form of one or more Global Securities, The Depository
Trust & Clearing Corporation, New York, New York, or any successor thereto registered as a clearing
agency under the Exchange Act or other applicable statute or regulations.
“Dollar” or “$” means such currency of the United States as at the time of
payment is legal tender for the payment of public and private debts.
“Dollar Equivalent” means, with respect to any monetary amount in a Foreign Currency,
at any time for the determination thereof, the amount of Dollars obtained by converting such
Foreign Currency involved in such computation into Dollars at the spot rate for the purchase of
Dollars with the applicable Foreign Currency as quoted by Citibank, N.A. (unless another comparable
financial institution is designated by the Issuers) in New York, New York at approximately 11:00
a.m. (New York time) on the date two business days prior to such determination.
2
“Equity Interests” means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or a business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership or membership
interests (whether general or limited);
(4) any other interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, the issuing Person; and
(5) all warrants, options or other rights to acquire any of the interests described in clauses
(1) through (4) above (but excluding any debt security that is convertible into, or exchangeable
for, any of the interests described in clauses (1) through (4) above).
“Event of Default” has the meaning specified in Section 6.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor
statute.
“Floating Rate Security” means a Debt Security that provides for the payment of
interest at a variable rate determined periodically by reference to an interest rate index
specified pursuant to Section 2.03.
“Foreign Currency” means a currency issued or adopted by the government of any country
other than the United States or a composite currency the value of which is determined by reference
to the values of the currencies of any group of countries.
“GAAP” means United States generally accepted accounting principles in the United
States which are in effect from time to time.
“General Partner”
means PNGS GP LLC, a Delaware limited liability company, and its
successors and permitted assigns as general partner of the Partnership.
“Global Security” means with respect to any series of Debt Securities issued
hereunder, a Debt Security that is executed by the Issuers and authenticated and delivered by the
Trustee to the Depositary or pursuant to the Depositary’s instruction, all in accordance with this
Indenture, or the applicable Board Resolution and set forth in an Officers’ Certificate, which
shall be registered in the name of the Depositary or its nominee and which shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of, all the Outstanding
Debt Securities of such series or any portion thereof, in either case having the same terms,
including, without limitation, the same original issue date, date or dates on which principal is
due and interest rate or method of determining interest.
3
“Holder,” “Holder of Debt Securities” or other similar terms mean, with
respect to a Registered Security, the Registered Holder.
“Indenture” means this instrument as originally executed, or, if amended or
supplemented as herein provided, as so amended or supplemented, and shall include the form and
terms of particular series of Debt Securities as contemplated hereunder, whether or not a
supplemental Indenture is entered into with respect thereto.
“Issuer Order” means a written order of the Issuers, signed by the Chairman of the
Board, President or any Vice President of each of the General Partner and PNG Finance and by the
Treasurer, Secretary, any Assistant Treasurer or any Assistant Secretary of each of the General
Partner and PNG Finance.
“Issuers” means the Partnership and PNG Finance, and, subject to the provisions of
Article X, shall also include their successors and permitted assigns.
“Lien” means, with respect to any asset, any mortgage, lien (statutory or otherwise),
pledge, charge, security interest, hypothecation, assignment for security, claim, preference,
priority or encumbrance of any kind in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law, including any conditional sale or other title retention
agreement or any lease in the nature thereof, any option or other agreement to grant a security
interest in and any filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statute) of any jurisdiction, other than a precautionary financing
statement respecting a lease not intended as a security agreement.
“Officers’ Certificate” means a certificate signed by the Chairman of the Board of
Directors, President or any Vice President of each of the General Partner and PNG Finance and by
the Treasurer, Secretary, any Assistant Treasurer or any Assistant Secretary of each of the General
Partner and PNG Finance. Each such certificate shall include the statements provided for in
Section 12.05, if applicable.
“Opinion of Counsel” means an opinion in writing signed by legal counsel for the
Issuers (which counsel may be an employee of the Issuers or outside counsel for the Issuers). Each
such opinion shall include the statements provided for in Section 12.05, if applicable.
“Original Issue Discount Debt Security” means any Debt Security which provides for an
amount less than the principal amount thereof to be due and payable upon a declaration or
acceleration of the maturity thereof pursuant to Section 6.01.
“Outstanding” when used with respect to any series of Debt Securities, means, as of
the date of determination, all Debt Securities of that series theretofore authenticated and
delivered under this Indenture, except:
(1) Debt Securities of that series theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(2) Debt Securities of that series for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any paying agent (other
4
than the Partnership or PNG Finance) in trust or set aside and segregated in trust by the
Issuers (if either of the Issuers shall act as its own paying agent) for the holders of such Debt
Securities; provided, that, if such Debt Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made; and
(3) Debt Securities of that series which have been paid pursuant to Section 2.09 or in
exchange for or in lieu of which other Debt Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Debt Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such Debt Securities are held by a
bona fide purchaser in whose hands such Debt Securities are valid obligations of the Issuers;
provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Debt Securities of any series have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Debt Securities owned by the Issuers or any other obligor upon
the Debt Securities or any Subsidiary of the Issuers or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction, notice, consent or
waiver, only Debt Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Debt Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee’s right so to act with respect to such Debt Securities and that the pledgee is not one of
the Issuers or any other obligor upon the Debt Securities or a Subsidiary of the Issuers or of such
other obligor. In determining whether the Holders of the requisite principal amount of outstanding
Debt Securities have given any request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of an Original Issue Discount Debt Security that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 6.01. In determining whether the Holders of the requisite
principal amount of the Outstanding Debt Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal amount of a Debt
Security denominated in one or more Foreign Currencies or currency units that shall be deemed to be
Outstanding for such purposes shall be the Dollar Equivalent, determined in the manner provided as
contemplated by Section 2.03 on the date of original issuance of such Debt Security, of the
principal amount (or, in the case of any Original Issue Discount Security, the Dollar Equivalent on
the date of original issuance of such Security of the amount determined as provided in the
preceding sentence above) of such Debt Security.
“PNG Finance” means PNG Finance Corp., a Delaware corporation, and, subject to the
provisions of Article X, shall also include its successors and assigns.
“Partnership” means PAA Natural Gas Storage, L.P., a Delaware limited partnership,
and, subject to the provisions of Article X, shall also include its successors and assigns.
“Payment Blockage Period” has the meaning set forth in Section 13.03.
5
“Person” means any individual, corporation, partnership, joint venture, association,
limited liability company, joint stock company, trust, unincorporated organization, government or
any agency or political subdivision thereof or any other entity.
“Place of Payment” means, when used with respect to the Debt Securities of any series,
the place or places where the principal of, and premium, if any, and interest on, the Debt
Securities of that series are payable as specified pursuant to Section 2.03.
“Registered Holder” means the Person in whose name a Registered Security is registered
in the Debt Security Register (as defined in Section 2.07(a)).
“Registered Security” means any Debt Security registered as to principal and interest
in the Debt Security Register (as defined in Section 2.07(a)).
“Registrar” has the meaning set forth in Section 2.07(a).
“Responsible Officer” when used with respect to the Trustee, means any officer within
the Corporate Trust Office of the Trustee or any other officer of the Trustee performing functions
similar to those performed by the persons who at the time shall be such officers, and any other
officer of the Trustee to whom corporate trust matters are referred because of his knowledge of and
familiarity with the particular subject.
“Securities Act” means the Securities Act of 1933, as amended, or any successor
statute.
“Stated Maturity” means, at any time, with respect to any installment of interest or
principal on any series of Debt Securities, the date on which such payment of interest or principal
was scheduled to be paid in the original documentation governing such indebtedness or such later
date as such documentation shall provide at that time, and shall not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
“Subsidiary” means, with respect to any Person:
(1) any corporation, association or other business entity of which more than 50% of the Voting
Stock is at the time owned or controlled, directly or indirectly, by such Person or one or more of
the other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership (whether general or limited) or limited liability company (a) the sole
general partner or the managing general partner or managing member of which is such Person or a Subsidiary
of such Person, or (b) if there are more than a single general partner or member, either (i) the
only general partners or managing members of which are such Person and/or one or more Subsidiaries
of such Person (or any combination thereof) or (ii) such Person owns or controls, directly or
indirectly, a majority of the outstanding general partner interests, member interests or other
Voting Stock of such partnership or limited liability company, respectively.
“Trust Indenture Act” (except as herein otherwise expressly provided) means the Trust
Indenture Act of 1939 as in force at the date of this Indenture as originally executed and, to the
extent required by law, as amended, or any successor statute.
6
“Trustee” initially means U.S. Bank National Association and any other Person or
Persons appointed as such from time to time pursuant to Section 7.08, and, subject to the
provisions of Article VII, includes its or their successors and assigns. If at any time
there is more than one such Person, “Trustee” as used with respect to the Debt Securities of any
series shall mean the Trustee with respect to the Debt Securities of that series.
“United States” means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject to its
jurisdiction.
“U.S. Government Obligations” means securities that are (i) direct obligations of the
United States for the payment of which its full faith and credit is pledged; (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of the United States,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, under clause (i) or (ii) above, are not callable or
redeemable at the option of the issuers thereof; or (iii) depository receipts issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligations or a specific
payment of interest on or principal of any such U.S. Government Obligation held by such custodian
for the account of the holder of a 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 evidenced by such depository receipt.
“Voting Stock” of any Person as of any date means the Equity Interests of such Person
pursuant to which the holders thereof have the general voting power under ordinary circumstances to
elect a majority of the board of directors, managers, general partners or trustees of any Person
(regardless of whether, at the time, Equity Interests of any other class or classes shall have, or
might have, voting power by reason of the occurrence of any contingency) or, with respect to a
partnership (whether general or limited), any general partner interest in such partnership.
“Yield to Maturity” means the yield to maturity calculated at the time of issuance of
a series of Debt Securities, or, if applicable, at the most recent redetermination of interest on
such series and calculated in accordance with accepted financial practice.
SECTION 1.02. Other Definitions.
Term | Section in which Defined | |||
“Debt Security Register” |
2.07 | |||
“Defaulted Interest” |
2.17 | |||
“Designated Currency” |
2.18 | |||
“mandatory sinking fund payment” |
3.04 | |||
“optional sinking fund payment” |
3.04 | |||
“Successor Company” |
10.01 |
SECTION 1.03. Incorporation by Reference of Trust Indenture Act. This Indenture is
subject to the mandatory provisions of the Trust Indenture Act which are incorporated by
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reference in and made a part of this Indenture. The following Trust Indenture Act terms have
the following meanings:
“indenture securities” means the Debt Securities,
“indenture security holder” means a Holder,
“indenture to be qualified” means this Indenture,
“indenture trustee” or “institutional trustee” means the Trustee and
“obligor” on this Indenture securities means the Issuers and any other obligor on the
Debt Securities.
All other Trust Indenture Act terms used in this Indenture that are defined by the Trust
Indenture Act, reference to another statute or defined by rules of the Commission have the meanings
assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with
GAAP;
(3) “or” is not exclusive;
(4) “including” means including without limitation; and
(5) words in the singular include the plural and words in the plural include the singular.
ARTICLE II
Debt Securities
Debt Securities
SECTION 2.01. Forms Generally. The Debt Securities of each series shall be in
substantially the form established without the approval of any Holder by or pursuant to a Board
Resolution of each of the Issuers or in one or more Indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as the Issuers may deem appropriate (and, if not
contained in a supplemental Indenture entered into in accordance with Article IX, as are
not prohibited by the provisions of this Indenture) or as may be required or appropriate to comply
with any law or with any rules made pursuant thereto or with any rules of any securities exchange
on which such series of Debt Securities may be listed, or to conform to general usage, or as may,
consistently herewith, be determined by the officers executing such Debt Securities as evidenced by
their execution of the Debt Securities.
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The definitive Debt Securities of each series shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined by the officers
executing such Debt Securities, as evidenced by their execution of such Debt Securities.
SECTION 2.02. Form of Trustee’s Certificate of Authentication. The Trustee’s
Certificate of Authentication on all Debt Securities authenticated by the Trustee shall be in
substantially the following form:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||||
By: | ||||
Authorized Signatory | ||||
Dated: | ||||
SECTION 2.03. Principal Amount; Issuable in Series. The aggregate principal amount of
Debt Securities which may be issued, executed, authenticated, delivered and outstanding under this
Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be established, without
the approval of any Holders, in or pursuant to a Board Resolution of each of the Issuers and set
forth in an Officers’ Certificate of each of the Issuers, or established in one or more Indentures
supplemental hereto, prior to the issuance of Debt Securities of any series any or all of the
following:
(1) | the title of the Debt Securities of the series (which shall distinguish the Debt Securities of the series from all other Debt Securities); | ||
(2) | any limit upon the aggregate principal amount of the Debt Securities of the series which may be authenticated and delivered under this Indenture (except for Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Debt Securities of the series pursuant to this Article II); | ||
(3) | the date or dates on which the principal and premium, if any, of the Debt Securities of the series are payable; | ||
(4) | the rate or rates (which may be fixed or variable) at which the Debt Securities of the series shall bear interest, if any, or the method of determining such rate or rates, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable, or the method by which such date will be determined, and in the case of Registered Securities, the record dates for |
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the determination of Holders thereof to whom such interest is payable; and the basis upon which interest will be calculated if other than that of a 360-day year of twelve thirty-day months; |
(5) | the Place or Places of Payment, if any, in addition to or instead of the Corporate Trust Office of the Trustee where the principal of, and interest on, Debt Securities of the series shall be payable; | ||
(6) | the price or prices at which, the period or periods within which and the terms and conditions upon which Debt Securities of the series may be redeemed, in whole or in part, at the option of the Issuers or otherwise; | ||
(7) | the obligation, if any, of the Issuers to redeem, purchase or repay Debt Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof, and the price or prices at which and the period or periods within which and the terms and conditions upon which Debt Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligations; | ||
(8) | the terms, if any, upon which the Debt Securities of the series may be convertible into or exchanged for Equity Interests, other Debt Securities or other securities of any kind of the Partnership, PNG Finance or any other obligor or issuer and the terms and conditions upon which such conversion or exchange shall be effected, including the initial conversion or exchange price or rate, the conversion or exchange period and any other provision in addition to or in lieu of those described herein; | ||
(9) | if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Debt Securities of the series shall be issuable; | ||
(10) | if the amount of principal of or any premium or interest on Debt Securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts will be determined; | ||
(11) | if the principal amount payable at the Stated Maturity of Debt Securities of the series will not be determinable as of any one or more dates prior to such Stated Maturity, the amount which will be deemed to be such principal amount as of any such date for any purpose, including the principal amount thereof which will be due and payable upon any maturity other than the Stated Maturity or which will be deemed to be Outstanding as of any such date (or, in any such case, the manner in which such deemed principal amount is to be determined); and the manner of determining the equivalent thereof in the currency of the United States of America for purposes of the definition of Dollar Equivalent; | ||
(12) | any changes or additions to Article XI; |
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(13) | if other than Dollars, the coin or Currency or Currencies or units of two or more Currencies in which payment of the principal of and premium, if any, and interest on, Debt Securities of the series shall be payable; | ||
(14) | if other than the principal amount thereof, the portion of the principal amount of Debt Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01 or provable in bankruptcy pursuant to Section 6.02; | ||
(15) | the terms, if any, of the transfer, mortgage, pledge or assignment as security for the Debt Securities of the series of any properties, assets, moneys, proceeds, securities or other collateral, including whether certain provisions of the Trust Indenture Act are applicable and any corresponding changes to provisions of this Indenture as currently in effect; | ||
(16) | any addition to or change in the Events of Default with respect to the Debt Securities of the series and any change in the right of the Trustee or the Holders to declare the principal of and interest on, such Debt Securities due and payable; | ||
(17) | if the Debt Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities, the terms and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Debt Securities in definitive registered form; and the Depositary for such Global Security or Securities and the form of any legend or legends to be borne by any such Global Security or Securities in addition to or in lieu of the legend referred to in Section 2.15; | ||
(18) | any trustees, authenticating or paying agents, transfer agents or registrars; | ||
(19) | the applicability of, and any addition to or change in the covenants and definitions currently set forth in this Indenture or in the terms currently set forth in Article X, including conditioning any merger, conveyance, transfer or lease permitted by Article X upon the satisfaction of an indebtedness coverage standard by the Issuers and any Successor Company (as defined in Article X); | ||
(20) | the terms, if any, of any guarantee of the payment of principal of, and premium, if any, and interest on, Debt Securities of the series and any corresponding changes to the provisions of this Indenture as currently in effect; | ||
(21) | with regard to Debt Securities of the series that do not bear interest, the dates for certain required reports to the Trustee; | ||
(22) | any other terms of the Debt Securities of the series (which terms shall not be prohibited by the provisions of this Indenture); and | ||
(23) | applicable CUSIP Numbers. |
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All Debt Securities of any one series appertaining thereto shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant to such Board
Resolutions and as set forth in such Officers’ Certificates or in any such Indenture supplemental
hereto.
SECTION 2.04. Execution of Debt Securities. The Debt Securities shall be signed on
behalf of the Partnership by the Chairman of the Board, the President or a Vice President of the
General Partner, and shall be signed on behalf of PNG Finance by its Chairman of the Board, its
President or a Vice President. Such signatures upon the Debt Securities may be the manual or
facsimile signatures of the present or any future such authorized officers and may be imprinted or
otherwise reproduced on the Debt Securities. The seals of the Issuers, if any, may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Debt
Securities.
Only such Debt Securities as shall bear thereon a Certificate of Authentication substantially
in the form hereinbefore recited, signed manually by the Trustee, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Debt Security executed by the Issuers shall be conclusive evidence that the Debt Security so
authenticated has been duly authenticated and delivered hereunder.
In case any officer of either of the General Partner or PNG Finance who shall have signed any
of the Debt Securities shall cease to be such officer before the Debt Securities so signed shall
have been authenticated and delivered by the Trustee, or disposed of by the Issuers, such Debt
Securities nevertheless may be authenticated and delivered or disposed of as though the Person who
signed such Debt Securities had not ceased to be such officer of the General Partner or PNG
Finance; and any Debt Security may be signed on behalf of the Issuers by such Persons as, at the
actual date of the execution of such Debt Security, shall be the proper officers of the General
Partner or PNG Finance, as applicable, although at the date of such Debt Security or of the
execution of this Indenture any such Person was not such officer.
SECTION 2.05. Authentication and Delivery of Debt Securities. At any time and from
time to time after the execution and delivery of this Indenture, the Issuers may deliver Debt
Securities of any series executed by the Issuers to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Debt Securities to or upon an Issuer Order. The Debt
Securities shall be dated the date of their authentication. In authenticating such Debt Securities
and accepting the additional responsibilities under this Indenture in relation to such Debt
Securities, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall
be fully protected in relying upon:
(1) | a copy of any Board Resolution of each of the Issuers, certified by the Secretary or Assistant Secretary of each of the Issuers, authorizing the terms of issuance of any series of Debt Securities; | ||
(2) | an executed supplemental Indenture, if any; | ||
(3) | an Officers’ Certificate; and |
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(4) | an Opinion of Counsel prepared in accordance with Section 12.05 substantially to the effect that: |
(a) the form of such Debt Securities has been established by or pursuant to a Board Resolution
of each of the Issuers or by a supplemental Indenture as permitted by Section 2.01 in
conformity with the provisions of this Indenture;
(b) the terms of such Debt Securities have been established by or pursuant to a Board
Resolution of each of the Issuers or by a supplemental Indenture as permitted by Section
2.03 in conformity with the provisions of this Indenture; and
(c) such Debt Securities, when authenticated and delivered by the Trustee and issued by the
Issuers in the manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Issuers, enforceable in accordance with
their terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors’ rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by equitable principles of
general applicability.
Such Opinion of Counsel need express no opinion as to whether a court in the United States
would render a money judgment in a Currency other than Dollars.
The Trustee shall have the right to decline to authenticate and deliver any Debt Securities
under this Section 2.05 if the Trustee, being advised by counsel, determines that such
action may not lawfully be taken or if the Trustee in good faith by its board of directors or
trustees, executive committee or a trust committee of directors, trustees or vice presidents shall
determine that such action would expose the Trustee to personal liability to existing Holders.
The Trustee may appoint an authenticating agent reasonably acceptable to the Issuers to
authenticate Debt Securities of any series. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Debt Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as any Registrar, paying agent or agent for service of
notices and demands.
SECTION 2.06. Denomination of Debt Securities. Unless otherwise provided in the form
of Debt Security for any series, the Debt Securities of each series shall be issuable only as
Registered Securities in such denominations as shall be specified or contemplated by Section
2.03. In the absence of any such specification with respect to the Debt Securities of any
series, the Debt Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
SECTION 2.07. General Provisions for Registration of Transfer and Exchange.
(a) The Issuers shall keep or cause to be kept a register for each series of Registered
Securities issued hereunder (hereinafter collectively referred to as the “Debt Security
Register”), in which, subject to such reasonable regulations as they may prescribe, the Issuers
shall provide for the registration of Registered Securities and the transfer of Registered
Securities
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as in this Article II provided. At all reasonable times the Debt Security Register
shall be open for inspection by the Trustee. Subject to Section 2.15, upon due presentment
for registration of transfer of any Registered Security at any office or agency to be maintained by
the Issuers in accordance with the provisions of Section 4.02, the Issuers shall execute
and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new
Registered Security or Registered Securities of authorized denominations for a like aggregate
principal amount.
Unless and until otherwise determined by a Board Resolution of each of the Issuers, the
register of the Issuers for the purpose of registration, exchange or registration of transfer of
the Registered Securities shall be kept at the Corporate Trust Office of the Trustee and, for this
purpose, the Trustee shall be designated “Registrar”. No prior notice to the Holders of Debt
Securities is required to effect the designation of a substitute Registrar by the Issuers.
Registered Securities of any series (other than a Global Security) may be exchanged for a like
aggregate principal amount of Registered Securities of the same series of other authorized
denominations. Subject to Section 2.15, Registered Securities to be exchanged shall be
surrendered at the office or agency to be maintained by the Issuers as provided in Section
4.02, and the Issuers shall execute and the Trustee shall authenticate and deliver in exchange
therefor the Registered Security or Registered Securities that the Holder making the exchange shall
be entitled to receive.
(b) All Registered Securities presented or surrendered for registration of transfer, exchange
or payment shall (if so required by the Issuers, the Trustee or the Registrar) be duly endorsed or
be accompanied by a written instrument or instruments of transfer, in form satisfactory to the
Issuers, the Trustee and the Registrar, duly executed by the Registered Holder or his attorney duly
authorized in writing.
All Debt Securities issued in exchange for or upon transfer of Debt Securities shall be the
legal, valid and binding obligations of the Issuers, evidencing the same debt, and entitled to the
same benefits under this Indenture as the Debt Securities surrendered for such exchange or
transfer.
No service charge shall be made for any exchange or registration of transfer of Debt
Securities (except as provided by Section 2.09), but the Issuers may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto, other than those expressly provided in this Indenture to be made at the Issuers’ own
expense or without expense or without charge to the Holders.
The Issuers shall not be required (a) to issue, register the transfer of or exchange any Debt
Securities of a series either (i) during a period beginning 15 Business Days next preceding any
selection for redemption of Debt Securities of such series and ending on the close of business on
the day of giving the relevant notice of redemption or (ii) between a record date and the next
succeeding interest payment date, or (b) to register the transfer of or exchange any Debt Security
called for redemption (except, in the case of Debt Securities to be redeemed in part, the portion
not to be redeemed).
14
Specific procedures for registration of transfer and exchange of any series of Debt Securities
may be set forth in the applicable supplemental Indenture for such Debt Securities.
SECTION 2.08. Temporary Debt Securities. Pending the preparation of definitive Debt
Securities of any series, the Issuers may execute and the Trustee shall authenticate and deliver
temporary Debt Securities (printed, lithographed, photocopied, typewritten or otherwise produced)
of any authorized denomination, and substantially in the form of the definitive Debt Securities in
lieu of which they are issued, and with such omissions, insertions and variations as may be
appropriate for temporary Debt Securities, all as may be determined by the Issuers with the
concurrence of the Trustee. Temporary Debt Securities may contain such reference to any provisions
of this Indenture as may be appropriate. Every temporary Debt Security shall be executed by the
Issuers and be authenticated by the Trustee upon the same conditions and in substantially the same
manner, and with like effect, as the definitive Debt Securities.
If temporary Debt Securities of any series are issued, the Issuers will cause definitive Debt
Securities of such series to be prepared without unreasonable delay. After the preparation of
definitive Debt Securities of such series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series upon surrender of the temporary Debt
Securities of such series at the office or agency of the Issuers at a Place of Payment for such
series, without charge to the Holder thereof, except as provided in Section 2.07 in
connection with a transfer, and upon surrender for cancellation of any one or more temporary Debt
Securities of any series, the Issuers shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Debt Securities of the same series of
authorized denominations and of like tenor. Until so exchanged, temporary Debt Securities of any
series shall in all respects be entitled to the same benefits under this Indenture as definitive
Debt Securities of such series, except as otherwise specified as contemplated by Section
2.03(17) with respect to the payment of interest on Global Securities in temporary form.
Upon any exchange of a portion of a temporary Global Security for a definitive Global Security
or for the individual Debt Securities represented thereby pursuant to Section 2.07 or this
Section 2.08, the temporary Global Security shall be endorsed by the Trustee to reflect the
reduction of the principal amount evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by the amount so exchanged and
endorsed.
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities. If (i) any
mutilated Debt Security is surrendered to the Trustee at the Corporate Trust Office of the Trustee
(in the case of Registered Securities) or (ii) the Issuers and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Debt Security, and there is delivered
to the Issuers and the Trustee such security or indemnity as may be required by them to save each
of them and any paying agent harmless, and neither the Issuers nor the Trustee receives written
notice that such Debt Security has been acquired by a protected purchaser, then the Issuers shall
execute and, upon an Issuer Order, the Trustee shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Debt Security, a new Debt Security of the
same series of like tenor, form, terms and principal amount, bearing a number not contemporaneously
Outstanding. Upon the issuance of any substituted Debt Security, the Issuers may require the
payment of a sum sufficient to cover any tax or other governmental charge that
15
may be imposed in relation thereto and any other expenses connected therewith. In case any
Debt Security which has matured or is about to mature or which has been called for redemption shall
become mutilated or be destroyed, lost or stolen, the Issuers may, instead of issuing a substituted
Debt Security, pay or authorize the payment of the same (without surrender thereof except in the
case of a mutilated Debt Security) if the applicant for such payment shall furnish the Issuers and
the Trustee with such security or indemnity as either may require to save it harmless from all
risk, however remote, and, in case of destruction, loss or theft, evidence to the satisfaction of
the Issuers and the Trustee of the destruction, loss or theft of such Debt Security and of the
ownership thereof.
Every substituted Debt Security of any series issued pursuant to the provisions of this
Section 2.09 by virtue of the fact that any Debt Security is destroyed, lost or stolen
shall constitute an original additional contractual obligation of the Issuers, whether or not the
destroyed, lost or stolen Debt Security shall be found at any time, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Debt Securities
of that series duly issued hereunder. All Debt Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debt Securities, and shall preclude any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable instruments or other securities without their
surrender, in each case to the fullest extent permitted by law.
SECTION 2.10. Cancellation of Surrendered Debt Securities. All Debt Securities
surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to
the Issuers or any paying agent or a Registrar, be delivered to the Trustee for cancellation by it,
or if surrendered to the Trustee, shall be canceled by it, and no Debt Securities shall be issued
in lieu thereof except as expressly permitted by any of the provisions of this Indenture. All
canceled Debt Securities held by the Trustee shall be disposed of by the Trustee in its customary
manner. On request of the Issuers, the Trustee shall deliver to the Issuers canceled Debt
Securities held by the Trustee. If the Issuers shall acquire any of the Debt Securities, however,
such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented
thereby unless and until the same are delivered or surrendered to the Trustee for cancellation.
The Issuers may not issue new Debt Securities to replace Debt Securities it has redeemed, paid or
delivered to the Trustee for cancellation.
SECTION 2.11. Provisions of this Indenture and Debt Securities for the Sole Benefit of the
Parties and the Holders. Nothing in this Indenture or in the Debt Securities, expressed or
implied, shall give or be construed to give to any Person, other than the parties hereto, the
Holders or any Registrar or paying agent, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition or provision herein contained, all its
covenants, conditions and provisions being for the sole benefit of the parties hereto, the Holders
and any Registrar and paying agents.
SECTION 2.12. Payment of Interest; Rights Preserved.
(a) Interest on any Registered Security that is payable and is punctually paid or duly
provided for on any interest payment date shall be paid to the Person in whose name such
16
Registered Security is registered at the close of business on the regular record date for such
interest notwithstanding the cancellation of such Registered Security upon any transfer or exchange
subsequent to the regular record date. Payment of interest on Registered Securities shall be made
at the Corporate Trust Office of the Trustee (except as otherwise specified pursuant to Section
2.03), or at the option of the Issuers, by check mailed to the address of the Person entitled
thereto as such address shall appear in the Debt Security Register or, if provided pursuant to
Section 2.03 and in accordance with arrangements satisfactory to the Trustee, at the option
of the Registered Holder by wire transfer to an account designated by the Registered Holder.
(b) Subject to the foregoing provisions of this Section 2.12 and Section 2.17,
each Debt Security of a particular series delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Debt Security of the same series shall carry
the rights to interest accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
SECTION 2.13. Securities Denominated in Foreign Currencies.
(a) Except as otherwise specified pursuant to Section 2.03 for Registered Securities
of any series, payment of the principal of, and premium, if any, and interest on, Registered
Securities of such series will be made in Dollars.
(b) For the purposes of calculating the principal amount of Debt Securities of any series
denominated in a Foreign Currency or in units of two or more Foreign Currencies for any purpose
under this Indenture, the principal amount of such Debt Securities at any time
Outstanding shall be deemed to be the Dollar Equivalent of such principal amount as of the
date of any such calculation.
In the event any Foreign Currency or currencies or units of two or more Currencies in which
any payment with respect to any series of Debt Securities may be made ceases to be a freely
convertible Currency on United States Currency markets, for any date thereafter on which payment of
principal of, or premium, if any, or interest on, the Debt Securities of a series is due, the
Issuers shall select the Currency of payment for use on such date, all as provided in the Debt
Securities of such series. In such event, the Issuers shall, as provided in the Debt Securities of
such series, notify the Trustee of the Currency which they have selected to constitute the funds
necessary to meet the Issuers’ obligations or such payment date and of the amount of such Currency
to be paid. Such amount shall be determined as provided in the Debt Securities of such series.
The payment to the Trustee with respect to such payment date shall be made by the Issuers solely in
the Currency so selected.
SECTION 2.14. Wire Transfers. Notwithstanding any other provision to the contrary in
this Indenture, the Issuers may make any payment of monies required to be deposited with the
Trustee on account of principal of, or premium, if any, or interest on, the Debt Securities
(whether pursuant to optional or mandatory redemption payments, interest payments or otherwise) by
wire transfer of immediately available funds to an account designated by the
17
Trustee before 11:00 A.M., New York City time, on the date such moneys are to be paid to the
Holders of the Debt Securities in accordance with the terms hereof.
SECTION 2.15. Securities Issuable in the Form of a Global Security.
(a) If the Issuers shall establish pursuant to Sections 2.01 and 2.03 that the
Debt Securities of a particular series are to be issued in whole or in part in the form of one or
more Global Securities, then the Issuers shall execute and the Trustee or its agent shall, in
accordance with Section 2.05, authenticate and deliver, such Global Security or Securities,
which (i) shall represent, and shall be denominated in an amount equal to the aggregate principal
amount of, the Outstanding Debt Securities of such series to be represented by such Global Security
or Securities, or such portion thereof as the Issuers shall specify in an Officers’ Certificate,
(ii) shall be registered in the name of the Depositary for such Global Security or Securities or
its nominee, (iii) shall be delivered by the Trustee or its agent to the Depositary or pursuant to
the Depositary’s instruction and (iv) shall bear a legend substantially to the following effect:
“Unless and until it is exchanged in whole or in part for the individual Debt Securities
represented hereby, this Global Security may not be transferred except as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary”, or such other legend as may then be required by the
Depositary for such Global Security or Securities.
(b) Notwithstanding any other provision of this Section 2.15 or of Section
2.07 to the contrary, and subject to the provisions of clause (c) below, unless the
terms of a Global Security expressly permit such Global Security to be exchanged in whole or in
part for definitive Debt Securities in registered form, a Global Security may be transferred, in
whole but not in part and in the manner provided in Section 2.07, only by the Depositary to
a nominee of the Depositary for such Global Security, or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary, or by the Depositary or a nominee of the
Depositary to a successor Depositary for such Global Security selected or approved by the Issuers,
or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security or Securities notifies the Issuers
that it is unwilling or unable to continue as Depositary for such Global Security or Securities or
if at any time the Depositary for the Debt Securities for such series shall no longer be eligible
or in good standing under the Exchange Act or other applicable statute, rule or regulation, the
Issuers shall appoint a successor Depositary with respect to such Global Security or Securities.
If a successor Depositary for such Global Security or Securities is not appointed by the Issuers
within 90 days after the Issuers receive such notice or become aware of such ineligibility, the
Issuers shall execute, and the Trustee or its agent, upon receipt of an Issuer Order for the
authentication and delivery of such individual Debt Securities of such series in exchange for such
Global Security or Securities, will authenticate and deliver, individual Debt Securities of such
series of like tenor and terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities in exchange for such Global Security or
Securities.
18
(ii) The Issuers may at any time and in their sole discretion determine that the Debt
Securities of any series or portion thereof issued or issuable in the form of one or more
Global Securities shall no longer be represented by such Global Security or Securities. In
such event the Issuers will execute, and the Trustee, upon receipt of an Issuer Order for
the authentication and delivery of individual Debt Securities of such series in exchange in
whole or in part for such Global Security, will authenticate and deliver individual Debt
Securities of such series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such series or portion thereof in exchange
for such Global Security or Securities.
(iii) If specified by the Issuers pursuant to Sections 2.01 and 2.03
with respect to Debt Securities issued or issuable in the form of a Global Security, the
Depositary for such Global Security may surrender such Global Security in exchange in whole
or in part for individual Debt Securities of such series of like tenor and terms in
definitive form on such terms as are acceptable to the Issuers, the Trustee and such
Depositary. Thereupon the Issuers shall execute, and the Trustee or its agent upon receipt
of an Issuer Order for the authentication and delivery of definitive Debt Securities of such
series shall authenticate and deliver, without service charge, (1) to each Person specified
by such Depositary a new Debt Security or Securities of the same series of like tenor and
terms and of any authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person’s beneficial interest in the Global
Security, and (2) to such Depositary a new Global Security of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of Debt Securities delivered
to Holders thereof, unless such Global Security is endorsed by the Trustee or other
custodian to reflect a reduction of such aggregate principal amount, in which case no new
Global Security need be authenticated and delivered.
(iv) In any exchange provided for in any of the preceding three paragraphs, the Issuers
will execute and the Trustee or its agent will authenticate and deliver individual Debt
Securities. Upon the exchange of the entire principal amount of a Global Security for
individual Debt Securities, such Global Security shall be canceled by the Trustee or its
agent. Except as provided in the preceding paragraph, Registered Securities issued in
exchange for a Global Security pursuant to this Section 2.15 shall be registered in
such names and in such authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or the Registrar. The Trustee or the Registrar shall deliver such
Registered Securities to the Persons in whose names such Registered Securities are so
registered.
(v) Payments in respect of the principal of and interest on any Debt Securities
registered in the name of the Depositary or its nominee will be payable to the Depositary or
such nominee in its capacity as the registered owner of such Global Security. The Issuers
and the Trustee may treat the Person in whose name the Debt Securities, including the Global
Security, are registered as the owner thereof for the purpose of receiving such payments and
for any and all other purposes whatsoever. None of the Issuers, the Trustee, any Registrar,
the paying agent or any agent of the Issuers or
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the Trustee will have any responsibility or liability for (a) any aspect of the records
relating to or payments made on account of the beneficial ownership interests of the Global
Security by the Depositary or its nominee or any of the Depositary’s direct or indirect
participants, or for maintaining, supervising or reviewing any records of the Depositary,
its nominee or any of the Depositary’s direct or indirect participants relating to the
beneficial ownership interests of the Global Security, (b) the payments to the beneficial
owners of the Global Security of amounts paid to the Depositary or its nominee, or (c) any
other matter relating to the actions and practices of the Depositary, its nominee or any of
the Depositary’s direct or indirect participants. None of the Issuers, the Trustee or any
such agent will be liable for any delay by the Depositary, its nominee, or any of the
Depositary’s direct or indirect participants in identifying the beneficial owners of the
Debt Securities, and the Issuers and the Trustee may conclusively rely on, and will be
protected in relying on, instructions from the Depositary or its nominee for all purposes
(including with respect to the registration and delivery, and the respective principal
amounts, of the Debt Securities to be issued).
SECTION 2.16. Medium Term Securities. Notwithstanding any contrary provision herein,
if all Debt Securities of a series are not to be originally issued at one time, it shall not be
necessary for the Issuers to deliver to the Trustee an Officers’ Certificate, a Board Resolution, a
supplemental Indenture, an Opinion of Counsel or a written order or any other document otherwise
required pursuant to Section 2.01, 2.03, 2.05 or 12.05 at or prior
to the time of authentication of each Debt Security of such series if such documents are delivered
to the Trustee or its agent at or prior to the authentication upon original issuance of the first
such Debt Security of such series to be issued; provided, that any subsequent request by the
Issuers to the Trustee to authenticate Debt Securities of such series upon original issuance shall
constitute a representation and warranty by the Issuers that, as of the date of such request, the
statements made in the Officers’ Certificate delivered pursuant to Section 2.05 or
12.05 shall be true and correct as if made on such date and that the Opinion of Counsel
delivered at or prior to such time of authentication of an original issuance of Debt Securities
shall specifically state that it shall relate to all subsequent issuances of Debt Securities of
such series that are identical to the Debt Securities issued in the first issuance of Debt
Securities of such series.
An Issuer Order delivered by the Issuers to the Trustee in the circumstances set forth in the
preceding paragraph may provide that Debt Securities which are the subject thereof will be
authenticated and delivered by the Trustee or its agent on original issue from time to time upon
the written order of Persons designated in such written order and that such Persons are authorized
to determine, consistent with the Officers’ Certificates, supplemental Indenture or the applicable
Board Resolutions relating to such written order, such terms and conditions of such Debt Securities
as are specified in such Officers’ Certificates, supplemental Indenture or such Board Resolutions.
SECTION 2.17. Defaulted Interest. Any interest on any Debt Security of a particular
series which is payable, but is not punctually paid or duly provided for, on the dates and in the
manner provided in the Debt Securities of such series and in this Indenture (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the Registered Holder thereof
on the relevant record date by virtue of having been such Registered Holder, and such Defaulted
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Interest may be paid by the Issuers, at their election in each case, as provided in clause
(a) or (b) below:
(a) The Issuers may elect to make payment of any Defaulted Interest to the Persons in whose
names the Registered Securities of such series are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be fixed in the following
manner: The Issuers shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Registered Security of such series and the date of the proposed
payment, and at the same time the Issuers shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify
the Issuers of such special record date and, in the name and at the expense of the Issuers, shall
cause notice of the proposed payment of such Defaulted Interest and the special record date
therefor to be mailed, first class postage prepaid, to each Holder thereof at its address as it
appears in the Debt Security Register, not less than 10 days prior to such special record date.
Notice of the proposed payment of such Defaulted Interest and the special record date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series are registered at the close of business on such special record
date.
(b) The Issuers may make payment of any Defaulted Interest on the Registered Securities of
such series in any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Registered Securities of such series may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Issuers to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the
Trustee.
SECTION 2.18. Judgments. The Issuers may provide pursuant to Section 2.03 for
Debt Securities of any series that (a) the obligation, if any, of the Issuers to pay the principal
of, and premium, if any, and interest on, the Debt Securities of any series in a Foreign Currency
or Dollars (the “Designated Currency”) as may be specified pursuant to Section 2.03
is of the essence and agrees that, to the fullest extent possible under applicable law, judgments
in respect of Debt Securities of such series shall be given in the Designated Currency; (b) the
obligation of the Issuers to make payments in the Designated Currency of the principal of, and
premium, if any, and interest on, such Debt Securities shall, notwithstanding any payment in any
other Currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of
the amount in the Designated Currency that the Holder receiving such payment may, in accordance
with normal banking procedures, purchase with the sum paid in such other Currency (after any
premium and cost exchange) on the business day in the country of issue of the Designated Currency
or in the international banking community (in the case of a composite currency) immediately
following the day on which such Holder receives such payment; (c) if the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
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originally due, the Issuers shall pay such additional amounts as may be necessary to
compensate for such shortfall; and (d) any obligation of the Issuers not discharged by such payment
shall be due as a separate and independent obligation and, until discharged as provided herein,
shall continue in full force and effect.
SECTION 2.19. CUSIP Numbers. The Issuers in issuing the Debt Securities may use
“CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in
notices of redemption as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Debt
Securities or as contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Debt Securities, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Issuers will promptly notify the
Trustee of any change in the “CUSIP” numbers.
ARTICLE III
Redemption of Debt Securities
SECTION 3.01. Applicability of Article. The provisions of this Article shall be
applicable to the Debt Securities of any series which are redeemable before their Stated Maturity
except as otherwise specified as contemplated by Section 2.03 for Debt Securities of such
series.
SECTION 3.02. Notice of Redemption; Selection of Debt Securities. In case the Issuers
shall desire to exercise the right to redeem all or, as the case may be, any part of the Debt
Securities of any series in accordance with their terms, a Board Resolution of each Issuer or a
supplemental Indenture, the Issuers shall fix a date for redemption and shall give notice of such
redemption at least 30 and not more than 60 days prior to the date fixed for redemption to the
Holders of Debt Securities of such series so to be redeemed as a whole or in part, in the manner
provided in Section 12.03. The notice if given in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder receives such notice. In
any case, failure to give such notice or any defect in the notice to the Holder of any Debt
Security of a series designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Debt Security of such series.
Each such notice of redemption shall specify the amount of Debt Securities of any series to be
redeemed, the date fixed for redemption, the calculation of the redemption price at which Debt
Securities of such series are to be redeemed (but not the redemption price itself if it is not then
determinable), the Place or Places of Payment that payment will be made upon presentation and
surrender of such Debt Securities, that any interest accrued to the date fixed for redemption will
be paid as specified in said notice, that the redemption is for a sinking fund payment (if
applicable), that on and after said date any interest thereon or on the portions thereof to be
redeemed will cease to accrue, that in the case of Original Issue Discount Securities original
issue discount accrued after the date fixed for redemption will cease to accrue, the terms of the
Debt Securities of that series pursuant to which the Debt Securities of that series are being
redeemed and that no representation is made as to the correctness or accuracy of the CUSIP number,
if any, listed in such notice or printed on the Debt Securities of that series. If less than all
the Debt Securities of a series are to be redeemed the notice of redemption shall specify the
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CUSIP numbers of the Debt Securities of that series to be redeemed. In case any Debt Security
of a series is to be redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Debt Security, a new Debt Security or Debt Securities of that
series will be issued in principal amount equal to the unredeemed portion thereof.
At least five days before the giving of any notice of redemption, unless the Trustee consents
to a shorter period, the Issuers shall give written notice to the Trustee of the redemption date,
the aggregate principal amount of Debt Securities to be redeemed and the series and terms of the
Debt Securities pursuant to which such redemption will occur. Such notice shall be accompanied by
an Officers’ Certificate and an Opinion of Counsel to the effect that such redemption will comply
with the conditions herein. If fewer than all the Debt Securities of a series are to be redeemed,
the record date relating to such redemption shall be selected by the Issuers and given to the
Trustee, which record date shall be not less than three days after the date of notice to the
Trustee.
No later than 11:00 A.M., New York City time, on the redemption date for any Debt Securities,
the Issuers shall deposit with the Trustee or with a paying agent (or, if the Partnership or PNG
Finance is acting as its own paying agent, segregate and hold in trust) an amount of money in the
Currency in which such Debt Securities are denominated (except as provided pursuant to Section
2.03) sufficient to pay the redemption price of such Debt Securities or any portions thereof
that are to be redeemed on that date.
If less than all the Debt Securities of like tenor and terms of a series are to be redeemed
(other than pursuant to mandatory sinking fund redemptions), the Trustee shall select the Debt
Securities of that series or portions thereof (in multiples of $1,000) to be redeemed (i) if such
Debt Securities are listed on an exchange, in compliance with the requirements of the principal
national securities exchange on which such Debt Securities are listed, or (ii) if such Debt
Securities are not listed on an exchange or such exchange has no selection requirements, on a pro
rata basis, by lot or by such other method as in its sole discretion the Trustee shall deem
appropriate and fair. In any case where more than one Debt Security of such series is registered
in the same name, the Trustee in its discretion may treat the aggregate principal amount so
registered as if it were represented by one Debt Security of such series. The Trustee shall
promptly notify the Issuers in writing of the Debt Securities selected for redemption and, in the
case of any Debt Securities selected for partial redemption, the principal amount thereof to be
redeemed. If any Debt Security called for redemption shall not be so paid upon surrender thereof
on such redemption date, the principal, premium, if any, and interest shall bear interest until
paid from the redemption date at the rate borne by the Debt Securities of that series. If less
than all the Debt Securities of unlike tenor and terms of a series are to be redeemed, the
particular Debt Securities to be redeemed shall be selected by the Issuers. Provisions of this
Indenture that apply to Debt Securities called for redemption also apply to portions of Debt
Securities called for redemption.
SECTION 3.03. Payment of Debt Securities Called for Redemption. If notice of
redemption has been given as provided in Section 3.02, the Debt Securities or portions of
Debt Securities of the series with respect to which such notice has been given shall become due and
payable on the date and at the Place or Places of Payment stated in such notice at the applicable
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redemption price, together with any interest accrued to the date fixed for redemption, and on
and after said date (unless the Issuers shall default in the payment of such Debt Securities at the
applicable redemption price, together with any interest accrued to said date) any interest on the
Debt Securities or portions of Debt Securities of any series so called for redemption shall cease
to accrue and any original issue discount in the case of Original Issue Discount Securities shall
cease to accrue. On presentation and surrender of such Debt Securities at the Place or Places of
Payment in said notice specified, the said Debt Securities or the specified portions thereof shall
be paid and redeemed by the Issuers at the applicable redemption price, together with any interest
accrued thereon to the date fixed for redemption.
Any Debt Security that is to be redeemed only in part shall be surrendered at the Place of
Payment, if the Issuers, the Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuers, the Registrar and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing, and the Issuers shall
execute, and the Trustee shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Debt Security or Debt Securities of the same series, of like tenor and form,
of any authorized denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Debt Security so surrendered;
except that if a Global Security is so surrendered, the Issuers shall execute, and the Trustee
shall authenticate and deliver to the Depositary for such Global Security, without service charge,
a new Global Security in a denomination equal to and in exchange for the unredeemed portion of the
principal of the Global Security so surrendered. In the case of a Debt Security providing
appropriate space for such notation, at the option of the Holder thereof, the Trustee, in lieu of
delivering a new Debt Security or Debt Securities as aforesaid, may make a notation on such Debt
Security of the payment of the redeemed portion thereof.
SECTION 3.04. Mandatory and Optional Sinking Funds. The minimum amount of any sinking
fund payment provided for by the terms of Debt Securities of any series, a Board Resolution or a
supplemental Indenture is herein referred to as a “mandatory sinking fund payment”, and any payment
in excess of such minimum amount provided for by the terms of Debt Securities of any series, a
Board Resolution or a supplemental Indenture is herein referred to as an “optional sinking fund
payment.”
In lieu of making all or any part of any mandatory sinking fund payment with respect to any
Debt Securities of a series in cash, the Issuers may at their option (a) deliver to the Trustee
Debt Securities of that series theretofore purchased or otherwise acquired by the Issuers or (b)
receive credit for the principal amount of Debt Securities of that series which have been redeemed
either at the election of the Issuers pursuant to the terms of such Debt Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of such Debt
Securities, resolution or supplemental Indenture; provided, that such Debt Securities have not been
previously so credited. Such Debt Securities shall be received and credited for such purpose by
the Trustee at the redemption price specified in such Debt Securities, the applicable Board
Resolution or supplemental Indenture for redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
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SECTION 3.05. Redemption of Debt Securities for Sinking Fund. Not less than 60 days
prior to each sinking fund payment date for any series of Debt Securities, the Issuers will deliver
to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, any Board Resolution or supplemental
Indenture, the portion thereof, if any, which is to be satisfied by payment of cash in the Currency
in which the Debt Securities of such series are denominated (except as provided pursuant to
Section 2.03) and the portion thereof, if any, which is to be satisfied by delivering and
crediting Debt Securities of that series pursuant to this Section 3.05 (which Debt
Securities, if not previously redeemed, will accompany such certificate) and whether the Issuers
intend to exercise their right to make any permitted optional sinking fund payment with respect to
such series. Such certificate shall also state that no Event of Default has occurred and is
continuing with respect to such series. Such certificate shall be irrevocable and upon its
delivery the Issuers shall be obligated to make the cash payment or payments therein referred to,
if any, no later than 11:00 A.M., New York City time, on the next succeeding sinking fund payment
date. Failure of the Issuers to deliver such certificate (or to deliver the Debt Securities
specified in this paragraph) shall not constitute a Default, but such failure shall require that
the sinking fund payment due on the next succeeding sinking fund payment date for that series shall
be paid entirely in cash and shall be sufficient to redeem the principal amount of such Debt
Securities subject to a mandatory sinking fund payment without the option to deliver or credit Debt
Securities as provided in this Section 3.05 and without the right to make any optional
sinking fund payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused
balance of any preceding sinking fund payments made in cash which shall equal or exceed $100,000
(or a lesser sum if the Issuers shall so request) with respect to the Debt Securities of any
particular series shall be applied by the Trustee on the sinking fund payment date on which such
payment is made (or, if such payment is made before a sinking fund payment date, on the sinking
fund payment date following the date of such payment) to the redemption of such Debt Securities at
the redemption price specified in such Debt Securities, the applicable Board Resolution or
supplemental Indenture for operation of the sinking fund together with any accrued interest to the
date fixed for redemption. Any sinking fund moneys not so applied or allocated by the Trustee to
the redemption of Debt Securities shall be added to the next cash sinking fund payment received by
the Trustee for such series and, together with such payment, shall be applied in accordance with
the provisions of this Section 3.05. Any and all sinking fund moneys with respect to the
Debt Securities of any particular series held by the Trustee on the last sinking fund payment date
with respect to Debt Securities of such series and not held for the payment or redemption of
particular Debt Securities shall be applied by the Trustee, together with other moneys, if
necessary, to be deposited sufficient for the purpose, to the payment of the principal of the Debt
Securities of that series at its Stated Maturity.
The Trustee shall select the Debt Securities to be redeemed upon such sinking fund payment
date in the manner specified in the last paragraph of Section 3.02 and the Issuers shall
cause notice of the redemption thereof to be given in the manner provided in Section 3.02
except that the notice of redemption shall also state that the Debt Securities are being redeemed
by operation of the sinking fund. Such notice having been duly given, the redemption of such Debt
Securities shall be made upon the terms and in the manner stated in Section 3.03.
25
No later than 11:00 A.M., New York City time, on each sinking fund payment date, the Issuers
shall pay to the Trustee (or, if the Partnership or PNG Finance is acting as its own paying agent,
the Partnership or PNG Finance shall segregate and hold in trust) in cash a sum in the Currency in
which the Debt Securities of such series are denominated (except as provided pursuant to
Section 2.03) equal to any interest accrued to the date fixed for redemption of Debt
Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this
Section 3.05.
The Trustee shall not redeem any Debt Securities of a series with sinking fund moneys or mail
any notice of redemption of such Debt Securities by operation of the sinking fund for such series
during the continuance of a Default in payment of interest on such Debt Securities or of any Event
of Default (other than an Event of Default occurring as a consequence of this paragraph) with
respect to such Debt Securities, except that if the notice of redemption of any such Debt
Securities shall theretofore have been mailed in accordance with the provisions hereof, the Trustee
shall redeem such Debt Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article III. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any such Default or
Event of Default shall occur and any moneys thereafter paid into such sinking fund shall, during
the continuance of such Default or Event of Default, be held as security for the payment of such
Debt Securities; provided, however, that in case such Default or Event of Default shall have been
cured or waived as provided herein, such moneys shall thereafter be applied on the next sinking
fund payment date for such Debt Securities on which such moneys may be applied pursuant to the
provisions of this Section 3.05.
ARTICLE IV
Particular Covenants of the Issuers
Particular Covenants of the Issuers
SECTION 4.01. Payment of Principal of, and Premium, If Any, and Interest on, Debt
Securities. The Issuers, for the benefit of each series of Debt Securities, will duly and
punctually pay or cause to be paid the principal of, and premium, if any, and interest on, each of
the Debt Securities at the place, at the respective times and in the manner provided herein and in
the Debt Securities. Each installment of interest on any Debt Securities not in global form may at
the Issuers’ option be paid by mailing checks for such interest payable to the Person entitled
thereto to the address of such Person as it appears on the Debt Security Register maintained
pursuant to Section 2.07(a).
Principal, premium and interest in respect of Debt Securities of any series shall be
considered paid on the date due if no later than 11:00 A.M., New York City time, on such date the
Trustee or any paying agent holds in accordance with this Indenture money sufficient to pay in the
Currency in which the Debt Securities of such series are denominated (except as provided pursuant
to Section 2.03) all principal, premium and interest then due.
The Issuers shall pay interest on overdue principal or premium, if any, at the rate specified
therefor in the Debt Securities and they shall pay interest on overdue installments of interest at
the same rate to the extent lawful.
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SECTION 4.02. Maintenance of Offices or Agencies for Registration of Transfer, Exchange
and Payment of Debt Securities. The Issuers will maintain in each Place of Payment for any
series of Debt Securities, an office or agency where Debt Securities of such series may be
presented or surrendered for payment, and they shall also maintain (in or outside such Place of
Payment) an office or agency where Debt Securities of such series may be surrendered for transfer
or exchange and where notices and demands to or upon the Issuers in respect of the Debt Securities
of such series and this Indenture may be served. The Issuers will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or agency. If at any
time the Issuers shall fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Issuers hereby appoint the
Trustee as its agent to receive all presentations, surrenders, notices and demands.
The Issuers may also from time to time designate different or additional offices or agencies
to be maintained for such purposes (in or outside of such Place of Payment), and may from time to
time rescind any such designation; provided, however, that no such designation or rescission shall
in any manner relieve the Issuers of their obligations described in the preceding paragraph. The
Issuers will give prompt written notice to the Trustee of any such additional designation or
rescission of designation and any change in the location of any such different or additional office
or agency.
SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee. The Issuers,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner
provided in Section 7.08, a Trustee, so that there shall at all times be a Trustee
hereunder with respect to each series of Debt Securities.
SECTION 4.04. Duties of Paying Agents, etc.
(a) The Issuers shall cause each paying agent, if any, other than the Trustee, to execute and
deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to
the provisions of this Section 4.04,
(i) that it will hold all sums held by it as such agent for the payment of the
principal of, and premium, if any, or interest on, the Debt Securities of any series
(whether such sums have been paid to it by the Issuers or by any other obligor on the Debt
Securities of such series) in trust for the benefit of the Holders of the Debt Securities of
such series;
(ii) that it will give the Trustee notice of any failure by the Issuers (or by any
other obligor on the Debt Securities of such series) to make any payment of the principal of
and premium, if any, or interest on, the Debt Securities of such series when the same shall
be due and payable; and
(iii) that it will at any time during the continuance of an Event of Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held by it as such
agent.
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(b) If either of the Issuers or any of their respective Subsidiaries shall act as its own
paying agent, it will, no later than 11:00 A.M., New York City time, on each due date of the
principal of, and premium, if any, or interest, if any, on, the Debt Securities of any series, set
aside, segregate and hold in trust for the benefit of the Holders of the Debt Securities of such
series a sum sufficient to pay such principal, premium, if any, or interest so becoming due. The
Issuers will promptly notify the Trustee of any failure by either of the Issuers or its
Subsidiaries to take such action or the failure by any other obligor on such Debt Securities to
make any payment of the principal of, and premium, if any, or interest on, such Debt Securities
when the same shall be due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, either of the
Issuers may, at any time, for the purpose of obtaining a satisfaction and discharge of this
Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust
by it or any paying agent, as required by this Section 4.04, such sums to be held by the
Trustee upon the same terms as those upon which such sums were held by the Issuer or such paying
agent.
(d) Whenever the Issuers shall have one or more paying agents with respect to any series of
Debt Securities, they will, no later than 11:00 A.M., New York City time, on each due date of the
principal of, and premium, if any, or interest on, any Debt Securities of such series, deposit with
any such paying agent a sum sufficient to pay the principal, premium or interest so becoming due,
such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless any such
paying agent is the Trustee) the Issuers will promptly notify the Trustee of their action or
failure so to act.
(e) Anything in this Section 4.04 to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section 4.04 is subject to the provisions of
Section 11.02.
(f) Unless and until otherwise determined by the Issuers in Board Resolutions or pursuant to a
supplemental Indenture, the Trustee will act as paying agent under this Indenture. The Issuers may
designate a substitute paying agent without prior notice to the Holders of Debt Securities.
SECTION 4.05. Statement by Officers as to Default. The Issuers will deliver to the
Trustee, on or before a date not more than four months after the end of each fiscal year of the
Issuers (currently ending on December 31 of each year) ending after the date hereof, an Officers’
Certificate stating, as to each officer signing such certificate, one of whom shall be the
principal executive, financial or accounting officer of each Issuer, that (i) in the course of his
performance of his duties as an officer of the General Partner or PNG Finance, as applicable, he
would normally have knowledge of any Default, (ii) whether or not to the best of his knowledge any
Default occurred during such year and (iii) if to the best of his knowledge the Partnership or PNG
Finance, as applicable, is in Default, specifying all such Defaults and what action the Partnership
or PNG Finance, as applicable, is taking or proposes to take with respect thereto.
SECTION 4.06. Further Instruments and Acts. The Issuers will, upon request of the
Trustee, execute and deliver such further instruments and do such further acts as may reasonably be
necessary or proper to carry out more effectually the purposes of this Indenture.
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SECTION 4.07. Corporate, Partnership or Limited Liability Company Existence. Subject
to Article X, the Issuers shall do or cause to be done all things necessary to preserve and
keep in full force and effect the corporate, partnership or limited liability company existence and
related rights and franchises (charges and statutory) of the Partnership and each of its
Subsidiaries; provided, however, that the Partnership shall not be required to preserve any such
right or franchise or the corporate, partnership or limited liability company existence of any
such Subsidiary if the management of the General Partner shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Partnership and its
Subsidiaries as a whole and that the loss thereof would not reasonably be expected to have a
material adverse effect on the ability of the Issuers or any obligor on the Debt Securities of any
series to perform their obligations hereunder; and provided, further, however, that the foregoing
shall not prohibit a sale, transfer or conveyance of a Subsidiary of the Partnership or any of its
assets in compliance with the terms of this Indenture.
SECTION 4.08. Maintenance of Properties. The Partnership shall cause all material
properties owned by the Partnership or any of its Subsidiaries or used or held for use in the
conduct of its business or the business of any of its Subsidiaries to be maintained and kept in
good condition, repair and working order (ordinary wear and tear excepted) and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the reasonable judgment of the Partnership may be
consistent with sound business practice and necessary so that the business carried on in connection
therewith may be properly conducted at all times; provided, however, that nothing in this Section
shall prevent the Partnership from discontinuing the maintenance of any of such properties if such
discontinuance is, in the reasonable judgment of the management of the General Partner, desirable
in the conduct of its business or the business of any of its Subsidiaries and not reasonably
expected to have a material adverse effect on the ability of the Issuers or any obligor on the Debt
Securities of any series to perform their obligations hereunder.
SECTION 4.09. Payment of Taxes and Other Claims. The Partnership shall pay or
discharge or cause to be paid or discharged, on or before the date the same shall become due and
payable, (a) all taxes, assessments and governmental charges levied or imposed upon the Partnership
or any of its Subsidiaries or otherwise assessed or upon the income, profits or property of the
Partnership or any of its Subsidiaries if failure to pay or discharge the same could reasonably be
expected to have a material adverse effect on the ability of the Issuers or any obligor on the Debt
Securities of any series to perform their obligations hereunder and (b) all lawful claims for
labor, materials and supplies, which, if unpaid, would by law become a Lien upon the property of
the Partnership or any of its Subsidiaries, except for any Lien permitted to be incurred under the
terms of this Indenture, if failure to pay or discharge the same could reasonably be expected to
have a material adverse effect on the ability of the Issuers or any obligor on the Debt Securities
of any series to perform their obligations hereunder; provided, however, that the Partnership shall
not be required to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in good faith by
appropriate proceedings properly instituted and diligently conducted and in respect of which
appropriate reserves (in the good faith judgment of management of the General Partner) are being
maintained in accordance with GAAP.
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SECTION 4.10. Calculation of Original Issue Discount. The Issuers shall file with the
Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of
original issue discount (including daily rates and accrual periods) accrued on Outstanding Original
Issue Discount Debt Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the Code.
SECTION 4.11. Stay, Extension and Usury Laws. Each of the Issuers covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon, plead or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and each of the Issuers hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
ARTICLE V
Holders’ Lists and Reports by the Issuers and the Trustee
Holders’ Lists and Reports by the Issuers and the Trustee
SECTION 5.01. Issuers to Furnish Trustee Information as to Names and Addresses of Holders;
Preservation of Information. The Issuers covenant and agree that they will furnish or cause to
be furnished to the Trustee with respect to the Registered Securities of each series:
(a) not more than 15 days after each record date with respect to the payment of interest, if
any, a list, in such form as the Trustee may reasonably require, of the names and addresses of the
Registered Holders as of such record date, and
(b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Issuers of any such request, a list as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that so long as the Trustee shall be the Registrar, such lists shall not be
required to be furnished.
The Trustee shall preserve, in as current a form as is reasonably practicable, all information
as to the names and addresses of the Holders (1) contained in the most recent list furnished to it
as provided in this Section 5.01 or (2) received by it in the capacity of paying agent or
Registrar (if so acting) hereunder.
The Trustee may destroy any list furnished to it as provided in this Section 5.01 upon
receipt of a new list so furnished.
SECTION 5.02. Communications to Holders; Meetings of Holders.
(a) Holders may communicate pursuant to Section 312(b) of the Trust Indenture Act with other
Holders with respect to their rights under this Indenture or the Debt Securities. The Issuers, the
Trustee, the Registrar and anyone else shall have the protection of Section 312(c) of the Trust
Indenture Act.
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(b) A meeting of the Holders of Debt Securities of any or all series may be called at any time
and from time to time pursuant to this Section 5.02 to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action provided herein to be
made, given or taken by Holders of Debt Securities of such series.
(c) The Trustee may at any time call a meeting of Holders of Debt Securities of any series for
any purpose specified herein to be held at such time and at such place in Houston, Texas, in The
Borough of Manhattan, The City of New York or in any other location, as the Trustee shall
determine. Notice of every meeting of Holders of any series, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at such meeting, shall be
given not less than 20 nor more than 180 days prior to the date fixed for the meeting.
(d) In case at any time the Issuers, pursuant to Board Resolutions, or the Holders of at least
10% in aggregate principal amount of the outstanding Debt Securities of any series, shall have
requested the Trustee for any such series to call a meeting of the Holders of Debt Securities of
such series for any purpose specified herein, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have made the first
publication of the notice of such meeting within 30 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the Issuers or the
Holders of such series in the amount specified above, as the case may be, may determine the time
and the place in Houston, Texas, in The Borough of Manhattan, The City of New York, or in any other
location, for such meeting and may call such meeting for such purposes by giving notice thereof as
provided in clause (c) of this Section 5.02.
SECTION 5.03. Reports by Issuers.
(a) Notwithstanding that the Partnership may not be required to remain subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Partnership shall file with
the Commission and provide to the Trustee and the Holders of Debt Securities the annual reports and
the information, documents and other reports that are specified in Sections 13 and 15(d) of the
Exchange Act, and, with respect to the annual consolidated financial statements only, a report
thereon by the Issuers’ independent auditors; provided, however, that the Partnership shall not be
so obligated to file such information, documents and reports with the Commission if the Commission
does not permit such filings. The Issuers shall comply with the other provisions of Section 314(a)
of the Trust Indenture Act.
(b) The Issuers covenant and agree, and any obligor hereunder shall covenant and agree, to
file with the Trustee and the Commission, in accordance with the rules and regulations prescribed
from time to time by said Commission, such additional information, documents, and reports with
respect to compliance by the Issuers or such obligor, as the case may be, with the conditions and
covenants provided for in this Indenture as may be required from time to time by such rules and
regulations.
(c) Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute notice of any information
contained therein or determinable from information contained therein, including the
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Issuers’ compliance with any of their covenants hereunder (as to which the Trustee is entitled
to rely exclusively on Officers’ Certificates).
SECTION 5.04. Reports by Trustee. The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the time and in the manner provided pursuant thereto.
Reports pursuant to this Section 5.04 shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of such Holders appear in
the Debt Security Register; and
(2) except in the cases of reports under Section 313(b)(2) of the Trust Indenture
Act, to each Holder of a Debt Security of any series whose name and address appear in
the information preserved at the time by the Trustee in accordance with Section
5.02.
A copy of each report at the time of its mailing to Holders shall be filed with the Commission
and each stock exchange (if any) on which the Debt Securities of any series are listed. The
Issuers agree to notify promptly the Trustee whenever the Debt Securities of any series become
listed on any stock exchange and of any delisting thereof.
SECTION 5.05. Record Dates for Action by Holders. If the Issuers shall solicit from
the Holders of Debt Securities of any series any action (including the making of any demand or
request, the giving of any direction, notice, consent or waiver or the taking of any other action),
the Issuers may, at their option, by Board Resolutions, fix in advance a record date for the
determination of Holders of Debt Securities entitled to take such action, but the Issuers shall
have no obligation to do so. Any such record date shall be fixed at the Issuers’ discretion. If
such a record date is fixed, such action may be sought or given before or after the record date,
but only the Holders of Debt Securities of record at the close of business on such record date
shall be deemed to be Holders of Debt Securities for the purpose of determining whether Holders of
the requisite proportion of Debt Securities of such series Outstanding have authorized or agreed or
consented to such action, and for that purpose the Debt Securities of such series Outstanding shall
be computed as of such record date.
ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
Remedies of the Trustee and Holders in Event of Default
SECTION 6.01. Events of Default. If any one or more of the following shall have
occurred and be continuing with respect to Debt Securities of any series (each of the following, an
“Event of Default”):
(a) the Issuers Default for a period of 60 days in the payment when due of interest on any
Debt Securities of that series; or
(b) the Issuers default in the payment when due of the principal of or premium, if any, on any
Debt Securities of that series at maturity, upon redemption or otherwise; or
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(c) default in the payment of any sinking fund payment with respect to any Debt Securities of
that series as and when the same shall become due and payable; or
(d) failure on the part of the Issuers to comply with Article X; or
(e) failure by the Issuers for 30 days after notice to comply to duly observe or perform any
other of the covenants or agreements on the part of the Issuers in the Debt Securities of that
series in any Board Resolution authorizing the issuance of that series of Debt Securities, in this
Indenture with respect to such series or in any supplemental Indenture with respect to such series
(other than a covenant a default in the performance of which is elsewhere in this Section
6.01 specifically dealt with); or
(f) pursuant to or within the meaning of Bankruptcy Law, an Issuer commences a voluntary case,
consents to the entry of an order for relief against it in an involuntary case, consents to the
appointment of a custodian of it or for all or substantially all of its property, makes a general
assignment for the benefit of its creditors, or generally is not paying its debts as they become
due; or
(g) (i) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law
that is for relief against an Issuer in an involuntary case, appoints a custodian of an Issuer, or
orders the liquidation of an Issuer and (ii) such order or decree remains unstayed and in effect
for 60 consecutive days; or
(h) any other Event of Default provided under the terms of the Debt Securities of that series;
then and in each and every case that an Event of Default with respect to Debt Securities of that
series at the time outstanding occurs and is continuing, either the Trustee or the Holders of at
least 25% in aggregate principal amount of the Debt Securities of that series, by notice in writing
to the Issuers (and to the Trustee if given by Holders), may declare the principal of (or, if the
Debt Securities of that series are Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms of that series), premium, if any, and accrued and
unpaid interest on all the Debt Securities of that series to be due and payable immediately.
The Holders of a majority in aggregate principal amount of the Debt Securities of a particular
series by notice to the Trustee may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree already rendered and if all existing Events of
Default have been cured or waived except nonpayment of principal or interest that has become due
solely because of acceleration. Upon any such rescission, the parties hereto shall be restored
respectively to their several positions and rights hereunder, and all rights, remedies and powers
of the parties hereto shall continue as though no proceeding had been taken.
In case the Trustee or any Holder shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because of such rescission
or annulment or for any other reason or shall have been determined adversely to the Trustee or such
Holder, then and in every such case the parties hereto shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of the parties hereto
shall continue as though no such proceeding had been taken.
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The foregoing Events of Default shall constitute Events of Default whatever the reason for any
such Event of Default and whether it is voluntary or involuntary or is effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
The Issuers shall deliver to the Trustee, within 30 days after the occurrence thereof, written
notice in the form of an Officers’ Certificate of any event which with the giving of notice and the
lapse of time would become an Event of Default under clause (c), (d), (e),
(f), (g) or (h), its status and what action the Issuers are taking or
propose to take with respect thereto.
SECTION 6.02. Collection of Indebtedness by Trustee, etc. If an Event of Default
occurs and is continuing, the Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any action or proceedings at law or in equity for the
collection of the sums so due and unpaid or enforce the performance of any provision of the Debt
Securities of the affected series or this Indenture, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such judgment or final decree against
the Issuers or any other obligor upon the Debt Securities of such series (and collect in the manner
provided by law out of the property of the Issuers or any other obligor upon the Debt Securities of
such series wherever situated the moneys adjudged or decreed to be payable).
In case there shall be pending proceedings for the bankruptcy or for the reorganization of
either of the Issuers or any other obligor upon the Debt Securities of any series under Title 11 of
the United States Code or any other Federal or State bankruptcy, insolvency or similar law, or in
case a receiver, trustee or other similar official shall have been appointed for its property, or
in case of any other similar judicial proceedings relative to either of the Issuers or any other
obligor upon the Debt Securities of any series, its creditors or its property, the Trustee,
irrespective of whether the principal of Debt Securities of any series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section 6.02, shall be
entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim
or claims for the whole amount of principal, premium, if any, and interest (or, if the Debt
Securities of such series are Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms of such series) owing and unpaid in respect of
the Debt Securities of such series, and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee, its agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith) and of the Holders thereof allowed in any such judicial proceedings
relative to either of the Issuers, or any other obligor upon the Debt Securities of such series,
its creditors or its property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with respect to the claims
of such Holders and of the Trustee on their behalf, and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of such Holders to make payments to the
Trustee, and, in the event that the Trustee shall consent to the making of payments directly to
such Holders, to pay to the Trustee such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other reasonable expenses
and liabilities incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith.
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All rights of action and of asserting claims under this Indenture, or under any of the Debt
Securities, of any series, may be enforced by the Trustee without the possession of any such Debt
Securities or the production thereof in any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of
an express trust, and any recovery of judgment (except for any amounts payable to the Trustee
pursuant to Section 7.06) shall be for the ratable benefit of the Holders of all the Debt
Securities in respect of which such action was taken.
In case of an Event of Default hereunder the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as
the Trustee shall deem necessary to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power granted in this
Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.
SECTION 6.03. Application of Moneys Collected by Trustee. Any moneys or other
property collected by the Trustee pursuant to Section 6.02 with respect to Debt Securities
of any series shall be applied, in the order following, at the date or dates fixed by the Trustee
for the distribution of such moneys or other property, upon presentation of the several Debt
Securities of such series in respect of which moneys or other property have been collected, and the
notation thereon of the payment, if only partially paid, and upon surrender thereof if fully paid:
First: To the payment of all money due the Trustee pursuant to Section 7.06;
Second: In case the principal of the Outstanding Debt Securities in respect of which
such moneys have been collected shall not have become due, to the payment of interest on the Debt
Securities of such series in the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the Trustee) upon the overdue
installments of interest at the rate or Yield to Maturity (in the case of Original Issue Discount
Debt Securities) specified in the Debt Securities of such series, such payments to be made ratably
to the Persons entitled thereto, without discrimination or preference;
Third: In case the principal of the Outstanding Debt Securities in respect of which
such moneys have been collected shall have become due, by declaration or otherwise, to the payment
of the whole amount then owing and unpaid upon the Debt Securities of such series for principal and
premium, if any, and interest, with interest on the overdue principal and premium, if any, and (to
the extent that such interest has been collected by the Trustee) upon overdue installments of
interest at the rate or Yield to Maturity (in the case of Original Issue Discount Debt Securities)
specified in the Debt Securities of such series; and, in case such moneys shall be insufficient to
pay in full the whole amount so due and unpaid upon the Debt Securities of such series, then to the
payment of such principal and premium, if any, and interest, without preference or priority of
principal and premium, if any, over interest, or of interest over principal and premium, if any, or
of any installment of interest over any other installment of interest, or of any Debt Security of
such series over any Debt Security of such series, ratably to the aggregate of such principal and
premium, if any, and interest; and
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Fourth: The remainder, if any, shall be paid to the Issuers, their successors or
assigns, or as a court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 6.03. At least 15 days before such record date, the Issuers shall mail to each
Holder and the Trustee a notice that states the record date, the payment date and amount to be
paid.
SECTION 6.04. Limitation on Suits by Holders. No Holder of any Debt Security of any
series shall have any right by virtue or by availing of any provision of this Indenture to
institute any action or proceeding at law or in equity or in bankruptcy or otherwise, upon or under
or with respect to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such Holder previously shall have given to the Trustee written
notice of an Event of Default with respect to Debt Securities of that same series and of the
continuance thereof and unless the Holders of not less than 25% in aggregate principal amount of
the Outstanding Debt Securities of that series shall have made written request upon the Trustee to
institute such action or proceedings in respect of such Event of Default in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity or security as it may
require against the costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of indemnity or security
shall have failed to institute any such action or proceedings and no direction inconsistent with
such written request shall have been given to the Trustee pursuant to Section 6.06; it
being understood and intended, and being expressly covenanted by the Holder of every Debt Security
with every other Holder and the Trustee, that no one or more Holders shall have any right in any
manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any Holders, or to obtain or seek to obtain priority over or preference to
any other such Holder, or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all such Holders. For the protection and
enforcement of the provisions of this Section 6.04, each and every Holder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision in this Indenture, however, the right of any Holder of any
Debt Security to receive payment of the principal of, and premium, if any, and (subject to
Section 2.12) interest on, such Debt Security on or after the respective due dates
expressed in such Debt Security, and to institute suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or effected without the consent of such
Holder.
SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of
Default. All powers and remedies given by this Article VI to the Trustee or to the
Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the Holders, by judicial
proceedings or otherwise, to enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any Holder to exercise
any right or power accruing upon any Default occurring and continuing as aforesaid, shall impair
any such right or power, or shall be construed to be a waiver of any such Default or an
acquiescence therein; and, subject to the provisions of Section 6.04, every power and
remedy
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given by this Article VI or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.
SECTION 6.06. Rights of Holders of Majority in Principal Amount of Debt Securities to
Direct Trustee and to Waive Default. The Holders of a majority in aggregate principal amount
of the Debt Securities of any series at the time Outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the Debt Securities of such
series; provided, however, that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture, and that subject to the provisions of Section 7.01,
the Trustee shall have the right to decline to follow any such direction if the Trustee being
advised by counsel shall determine that the action so directed may not lawfully be taken, or if the
Trustee shall by a Responsible Officer or officers determine that the action so directed would
involve it in personal liability or would be prejudicial to Holders of Debt Securities of such
series not taking part in such direction; and provided further, however, that nothing in this
Indenture contained shall impair the right of the Trustee to take any action deemed proper by the
Trustee and which is not inconsistent with such direction by such Holders. Prior to the
acceleration of the maturity of the Debt Securities of any series, as provided in Section
6.01, the Holders of a majority in aggregate principal amount of the Debt Securities of that
series at the time Outstanding by notice to the Trustee may on behalf of the Holders of all the
Debt Securities of that series waive any past Default or Event of Default and its consequences for
that series specified in the terms thereof as contemplated by Section 2.03, except (i) a
Default in the payment of the principal of, and premium, if any, or interest on, any of the Debt
Securities and (ii) a Default in respect of a provision that under Section 9.02 cannot be
amended, supplemented or waived without the consent of each Holder affected thereby. In case of
any such waiver, such Default shall cease to exist, any Event of Default arising therefrom shall be
deemed to have been cured for every purpose of this Indenture, and the Issuers, the Trustee and the
Holders of the Debt Securities of that series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but May Withhold Such Notice
in Certain Circumstances. The Trustee shall, within 90 days after the occurrence of a Default
known to it with respect to a series of Debt Securities give to the Holders thereof, in the manner
provided in Section 12.03, notice of all Defaults with respect to such series known to the
Trustee, unless such Defaults shall have been cured or waived before the giving of such notice;
provided that, except in the case of Default in the payment of the principal of, or premium, if
any, or interest on, any of the Debt Securities of such series or in the making of any sinking fund
payment with respect to the Debt Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the committee of Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interests of the Holders
thereof.
SECTION 6.08. Requirement of an Undertaking To Pay Costs in Certain Suits under this
Indenture or Against the Trustee. All parties to this Indenture agree, and each Holder of any
Debt Security by his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or
37
in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such suit in the manner
and to the extent provided in the Trust Indenture Act, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section 6.08 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than ten percent in principal amount of the Outstanding Debt Securities of
that series or to any suit instituted by any Holder for the enforcement of the payment of the
principal of, or premium, if any, or interest on, any Debt Security on or after the due date for
such payment expressed in such Debt Security.
ARTICLE VII
Concerning the Trustee
Concerning the Trustee
SECTION 7.01. Certain Duties and Responsibilities. The Trustee, prior to the
occurrence of an Event of Default and after the curing or waiving of all Events of Default which
may have occurred, undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their exercise, as a prudent person would exercise or
use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure to act, or its own willful misconduct, except
that:
(a) this subsection shall not be construed to limit the effect of the first paragraph of this
Section 7.01;
(b) prior to the occurrence of an Event of Default with respect to the Debt Securities of a
series and after the curing or waiving of all Events of Default with respect to such series which
may have occurred:
(i) the duties and obligations of the Trustee with respect to Debt Securities of any
series shall be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties and obligations with
respect to such series as are specifically set forth in this Indenture, and no implied
covenants or obligations with respect to such series shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished to the
38
Trustee, the Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture;
(c) the Trustee shall not be liable for an error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(d) the Trustee shall not be liable with respect to any action taken or omitted to be taken by
it with respect to Debt Securities of any series in good faith in accordance with the direction of
the Holders of not less than a majority in aggregate principal amount of the Outstanding Debt
Securities of that series relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to Debt Securities of such series.
None of the provisions of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any personal financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds
for believing that repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 7.02. Certain Rights of Trustee. Except as otherwise provided in Section
7.01:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note or other paper or document (whether in
its original or facsimile form) believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, order or demand of the Issuers mentioned herein shall be
sufficiently evidenced by an Issuer Order (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of each of the General Partner and PNG
Finance;
(c) the Trustee may consult with counsel of its own selection, and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Holders of Debt Securities of
any series pursuant to the provisions of this Indenture, unless such Holders
39
shall have offered to the Trustee security or indemnity reasonably satisfactory to it against
the costs, expenses and liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it in good faith and
reasonably believed by it to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(f) prior to the occurrence of an Event of Default and after the curing of all Events of
Default which may have occurred, the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, approval or other paper or document, unless requested
in writing to do so by the Holders of a majority in aggregate principal amount of the then
outstanding Debt Securities of a series affected by such matter; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is not, in the opinion of the Trustee,
reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require indemnity reasonably satisfactory to it against such costs, expenses or
liabilities as a condition to so proceeding; the Trustee shall be entitled to examine the books,
records and premises of the Issuers during ordinary business hours and for any purpose relevant to
this Indenture, personally or by an agent or attorney at the sole cost of the Issuers and shall
incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed by it
with due care hereunder;
(h) if any property other than cash shall at any time be subject to a Lien in favor of the
Holders, the Trustee, if and to the extent authorized by a receivership or bankruptcy court of
competent jurisdiction or by the supplemental instrument subjecting such property to such Lien,
shall be entitled to make advances for the purpose of preserving such property or of discharging
tax Liens or other prior Liens or encumbrances thereon;
(i) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a Default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Debt Securities and this Indenture; and
(j) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and
other Person employed by the Trustee to act hereunder.
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in Debt Securities. The
recitals contained herein and in the Debt Securities (except the Trustee’s Certificate of
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Authentication) shall be taken as the statements of the Issuers, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Debt Securities of any series, except that the
Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate
the Debt Securities and perform its obligations hereunder, and that the statements made by it or to
be made by it in a Statement of Eligibility and Qualification on Form T-1 supplied to the Issuers
are true and accurate. The Trustee shall not be accountable for the use or application by the
Issuers of any of the Debt Securities or of the proceeds thereof.
SECTION 7.04. Trustee, Paying Agent or Registrar May Own Debt Securities. The Trustee
or any paying agent or Registrar, in its individual or any other capacity, may become the owner or
pledgee of Debt Securities and subject to the provisions of the Trust Indenture Act relating to
conflicts of interest and preferential claims may otherwise deal with the Issuers with the same
rights it would have if it were not Trustee, paying agent or Registrar; provided, however, that if
the Trustee acquires any such conflicting interest and an Event of Default or Default has occurred
and is continuing, the Trustee must eliminate such conflict within 90 days, apply to the Commission
for permission to continue as trustee or resign.
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust. Subject to the
provisions of Section 11.02, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any moneys received by it hereunder. So long as no Event of
Default shall have occurred and be continuing, all interest allowed on any such moneys shall be
paid from time to time to the Issuers upon an Issuer Order.
SECTION 7.06. Compensation and Reimbursement. The Issuers covenant and agree to pay
in Dollars to the Trustee from time to time, and the Trustee shall be entitled to, reasonable
compensation for all services rendered by it hereunder (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust), and, except as otherwise
expressly provided herein, the Issuers will pay or reimburse in Dollars the Trustee upon its
request for all expenses, disbursements and advances incurred or made by the Trustee in accordance
with any of the provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents, attorneys and counsel and of all Persons not regularly in
its employ) except any such expense, disbursement or advances as may arise from its negligence or
bad faith. The Issuers also covenant to fully indemnify in Dollars the Trustee and any predecessor
Trustee for, and to hold it harmless against, any and all loss, liability, claim, damage or expense
incurred without negligence or willful misconduct on the part of the Trustee, arising out of or in
connection with the acceptance or administration of this trust or trusts hereunder, including the
costs and expenses of defending itself against any claim of liability in connection with the
exercise or performance of any of its powers or duties hereunder. The obligations of the Issuers
under this Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. The Issuers and the Holders
agree that such additional indebtedness shall be secured by a Lien prior to that of the Debt
Securities upon all property and funds held or collected by the
41
Trustee, as such, except funds held in trust for the payment of principal of, and premium, if
any, or interest on, particular Debt Securities.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(f) or (g) occurs, the expenses and the compensation for the services
are intended to constitute expenses of administration under any bankruptcy, insolvency,
reorganization or other similar law.
SECTION 7.07. Right of Trustee to Rely on an Officers’ Certificate Where No Other Evidence
Specifically Prescribed. Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers’ Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 7.08. Separate Trustee; Replacement of Trustee. The Issuers may, but need
not, appoint a separate Trustee for any one or more series of Debt Securities. The Trustee may
resign with respect to one or more or all series of Debt Securities at any time by giving notice to
the Issuers. The Holders of a majority in principal amount of the Debt Securities of a particular
series may remove the Trustee for such series and only such series by so notifying the Trustee and
may appoint a successor Trustee. The Issuers shall remove the Trustee if:
(1) | the Trustee fails to comply with Section 7.10; | ||
(2) | the Trustee is adjudged bankrupt or insolvent; | ||
(3) | a receiver or other public officer takes charge of the Trustee or its property; or | ||
(4) | the Trustee otherwise becomes incapable of acting. |
If the Trustee resigns, is removed by the Issuers or by the Holders of a majority in principal
amount of the Debt Securities of a particular series and such Holders do not reasonably promptly
appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the
Trustee in such event being referred to herein as the retiring Trustee), the Issuers shall promptly
appoint a successor Trustee. No resignation or removal of the Trustee and no appointment of a
successor Trustee shall become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of this Section 7.08.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Issuers. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders of Debt Securities of each applicable series. The retiring Trustee shall promptly transfer
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all property held by it as Trustee to the successor Trustee, subject to the Lien provided for
in Section 7.06.
If a successor Trustee does not take office within 60 days after the retiring Trustee gives
notice of resignation or is removed, the retiring Trustee or the Holders of 25% in aggregate
principal amount of the Debt Securities of any applicable series may petition any court of
competent jurisdiction for the appointment of a successor Trustee for the Debt Securities of such
series.
If the Trustee fails to comply with Section 7.10, any Holder of Debt Securities of any
applicable series may petition at the expense of the Issuers any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee for the Debt Securities
of such series. Notwithstanding the replacement of the Trustee pursuant to this Section
7.08, the Issuers’ obligations under Section 7.06 shall continue for the benefit of the
retiring Trustee.
In the case of the appointment hereunder of a separate or successor Trustee with respect to
the Debt Securities of one or more series, the Issuers, any retiring Trustee and each successor or
separate Trustee with respect to the Debt Securities of any applicable series shall execute and
deliver an Indenture supplemental hereto (1) which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties of any retiring
Trustee with respect to the Debt Securities of any series as to which any such retiring Trustee is
not retiring shall continue to be vested in such retiring Trustee and (2) that shall add to or
change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one trustee, it being understood that
nothing herein or in such supplemental Indenture shall constitute such Trustees co-trustees of the
same trust and that each such separate, retiring or successor Trustee shall be Trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates with, merges
or converts into, or transfers all or substantially all of its corporate trust business or assets
to, another corporation or banking association, the resulting, surviving or transferee corporation
or banking association without any further act shall be the successor Trustee, provided such Person
shall be otherwise qualified and eligible under this Article VII, without the execution or
filing of any paper or any further act on the part of any of the parties hereto. As soon as
practicable, the successor Trustee shall mail a notice of its succession to the Issuers and the
Holders of the Debt Securities then Outstanding.
In case at the time such successor or successors by merger, conversion or consolidation to the
Trustee shall succeed to the trusts created by this Indenture any of the Debt Securities shall have
been authenticated but not delivered, any such successor to the Trustee may adopt the Certificate
of Authentication of any predecessor trustee, and deliver such Debt Securities so authenticated;
and in case at that time any of the Debt Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Debt Securities either in the name of any
predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Debt Securities or in this
Indenture provided that the certificate of the Trustee shall have.
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SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all times satisfy
the requirements of Section 310(a) of the Trust Indenture Act. The Trustee shall have a combined
capital and surplus of at least $50,000,000, as set forth in its most recently published annual
report of condition. No obligor upon the Debt Securities of a particular series or Person directly
or indirectly controlling, controlled by or under common control with such obligor shall serve as
Trustee upon the Debt Securities of such series. The Trustee shall comply with Section 310(b) of
the Trust Indenture Act; provided, however, that there shall be excluded from the operation of
Section 310(b)(1) of the Trust Indenture Act this Indenture or any indenture or indentures under
which other securities or certificates of interest or participation in other securities of the
Issuers are outstanding if the requirements for such exclusion set forth in Section 310(b)(1) of
the Trust Indenture Act are met.
SECTION 7.11. Preferential Collection of Claims Against Issuers. The Trustee shall
comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed
in Section 311(b) of the Trust Indenture Act. A Trustee who had resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 7.12. Compliance with Tax Laws. The Trustee hereby agrees to comply with all
U.S. Federal income tax information reporting and withholding requirements applicable to it with
respect to payments of principal, premium (if any) and interest on the Debt Securities, whether
acting as Trustee, Security Registrar, paying agent or otherwise with respect to the Debt
Securities.
ARTICLE VIII
Concerning the Holders
Concerning the Holders
SECTION 8.01. Evidence of Action by Holders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal amount of the Debt
Securities of any or all series may take action (including the making of any demand or request, the
giving of any direction, notice, consent or waiver or the taking of any other action) the fact that
at the time of taking any such action the Holders of such specified percentage have joined therein
may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by
Holders in person or by agent or proxy appointed in writing, (b) by the record of the Holders
voting in favor thereof at any meeting of Holders duly called and held in accordance with the
provisions of Section 5.02, (c) by a combination of such instrument or instruments and any
such record of such a meeting of Holders or (d) in the case of Debt Securities evidenced by a
Global Security, by any electronic transmission or other message, whether or not in written format,
that complies with the Depositary’s applicable procedures.
SECTION 8.02. Proof of Execution of Instruments and of Holding of Debt Securities.
Subject to the provisions of Sections 7.01, 7.02 and 12.09, proof of the
execution of any instrument by a Holder or his agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in
such manner as shall be satisfactory to the Trustee.
The ownership of Registered Securities of any series shall be proved by the Debt Security
Register or by a certificate of the Registrar for such series.
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The Trustee may require such additional proof of any matter referred to in this Section
8.02 as it shall deem necessary.
SECTION 8.03. Who May Be Deemed Owner of Debt Securities. Prior to due presentment
for registration of transfer of any Registered Security, the Issuers, the Trustee, any paying agent
and any Registrar may deem and treat the Person in whose name any Registered Security shall be
registered upon the books of the Issuers as the absolute owner of such Registered Security (whether
or not such Registered Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of the principal of
and premium, if any, and (subject to Section 2.12) interest on such Registered Security and
for all other purposes, and neither the Issuers nor the Trustee nor any paying agent nor any
Registrar shall be affected by any notice to the contrary; and all such payments so made to any
such Holder for the time being, or upon his order, shall be valid and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such
Registered Security.
SECTION 8.04. Instruments Executed by Holders Bind Future Holders. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the
taking of any action by the Holders of the percentage in aggregate principal amount of the Debt
Securities of any series specified in this Indenture in connection with such action and subject to
the following paragraph, any Holder of a Debt Security which is shown by the evidence to be
included in the Debt Securities the Holders of which have consented to such action may, by filing
written notice with the Trustee at its Corporate Trust Office of the Trustee and upon proof of
holding as provided in Section 8.02, revoke such action so far as concerns such Debt
Security. Except as aforesaid any such action taken by the Holder of any Debt Security shall be
conclusive and binding upon such Holder and upon all future Holders and owners of such Debt
Security and of any Debt Security issued upon transfer thereof or in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made upon such Debt
Security or such other Debt Securities. Any action taken by the Holders of the percentage in
aggregate principal amount of the Debt Securities of any series specified in this Indenture in
connection with such action shall be conclusively binding upon the Issuers, the Trustee and the
Holders of all the Debt Securities of such series.
The Issuers may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders of Registered Securities entitled to give their consent or take any other
action required or permitted to be taken pursuant to this Indenture. If a record date is fixed,
then notwithstanding the immediately preceding paragraph, those Persons who were Holders of
Registered Securities at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders of Registered Securities
after such record date. No such consent shall be valid or effective for more than 120 days after
such record date unless the written consent of the Holders of the percentage in aggregate principal
amount of the Debt Securities of such series specified in this Indenture shall have been received
within such 120-day period.
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ARTICLE IX
Amendment, Supplement and Waiver
Amendment, Supplement and Waiver
SECTION 9.01. Without Consent of Holders of Debt Securities. The Issuers and the
Trustee may from time to time and at any time, without the consent of Holders, enter into an
Indenture or Indentures supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof) for one or more of the following
purposes:
(a) to cure any ambiguity, defect or inconsistency contained herein, in any supplemental
Indenture or in the Debt Securities of such series;
(b) to provide for uncertificated Debt Securities in addition to or in place of certificated
Debt Securities;
(c) to provide for the assumption of an Issuer’s obligations to Holders pursuant to
Article X;
(d) to add guarantors with respect to the Debt Securities as parties to this Indenture or to
release guarantors in accordance with the provisions of any supplemental Indenture;
(e) to make any changes that would provide any additional rights or benefits to the Holders of
the Debt Securities or that do not, taken as a whole, adversely affect the legal rights hereunder
of any Holder;
(f) to comply with the requirements of the Commission to permit the qualification of this
Indenture or any Indenture supplemental hereto under the Trust Indenture Act as then in effect,
except that nothing herein contained shall permit or authorize the inclusion in any Indenture
supplemental hereto of the provisions referred to in Section 316(a)(2) of the Trust Indenture Act;
(g) to evidence or provide for the acceptance of appointment hereunder by a successor or
separate Trustee with respect to the Debt Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee;
(h) to add any additional Events of Default;
(i) to secure the Debt Securities and/or any guarantee with respect to any Debt Securities;
and
(j) to establish the form or terms of the Debt Securities as permitted by Section 2.01
or 2.03.
The Trustee is hereby authorized to join with the Issuers and guarantors with respect to any
Debt Securities in the execution of any such supplemental Indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to accept the
46
conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental Indenture which affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental Indenture authorized by the provisions of this Section 9.01 may be
executed by the Issuers, any guarantors with respect to any Debt Securities and the Trustee without
the consent of the Holders of any of the Debt Securities at the time outstanding, notwithstanding
any of the provisions of Section 9.02.
After an amendment under this Section 9.01 becomes effective, the Issuers shall mail
to Holders of Debt Securities of each series affected thereby a notice briefly describing such
amendment. The failure to give such notice to all such Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.01.
SECTION 9.02. With Consent of Holders of Debt Securities. Without notice to any
Holder but with the consent (evidenced as provided in Section 8.01) of the Holders of a
majority in aggregate principal amount of the outstanding Debt Securities of each series affected
by such supplemental Indenture, (a) the Issuers, when authorized by Board Resolutions, and the
Trustee may from time to time and at any time enter into an Indenture or Indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as in force at the date of
execution thereof) for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental Indenture or of
modifying in any manner the rights of the Holders of the Debt Securities of such series, and (b)
subject to Sections 6.04 and 6.08, any existing Default or Events of Default or
compliance with any provision of this Indenture or the Debt Securities of such series may be
waived; provided, that no such supplemental Indenture or waiver, without the consent of the Holders
of each Debt Security so affected, shall (i) reduce the percentage in principal amount of Debt
Securities of any series whose Holders must consent to an amendment, supplement or waiver; (ii)
reduce the principal of or change the Stated Maturity of any Debt Security; (iii) reduce or waive
the premium payable upon the redemption of any Debt Security or alter or waive any provisions by
which any Debt Security may or shall be redeemed in accordance with Article III (other than
provisions requiring the repurchase of the Debt Securities of such series if so permitted by the
Board Resolutions or supplemental Indenture establishing the terms of such series); (iv) reduce the
rate of or change the time for payment of interest on any Debt Security; (v) waive a Default or an
Event of Default in the payment of principal of, or premium, if any, or interest on a Debt Security
except for a rescission of an acceleration of such Debt Securities by the Holders of a majority in
aggregate principal amount of such Debt Securities and a waiver of the payment default that
resulted from such acceleration; (vi) except as otherwise permitted under this Indenture, release
any security that may have been granted in respect of the Debt Securities; (vii) make any Debt
Security payable in Currency other than that stated in the Debt Security; (viii) make any change in
the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders to
receive payments of principal of or premium, if any, or interest on the Debt Securities; (ix) waive
a redemption payment with respect to any Debt Security (other than a payment required by a covenant
requiring the repurchase of the Debt Securities of such series if so permitted by the Board
Resolutions or supplemental Indenture establishing the terms of such series); (x) except as
otherwise permitted under this Indenture with respect to Debt Securities that are guaranteed,
release any guarantor from its obligations under
47
this
Indenture or under its guarantee or change any guarantee in any manner that would adversely affect the rights of
Holders of such Debt Securities; or (xi) make any change in Section 6.06 or this
Section 9.02 (except to increase any percentage set forth therein or herein).
A supplemental Indenture which changes or eliminates any covenant or other provision of this
Indenture which has been expressly included solely for the benefit of one or more particular series
of Debt Securities or which modifies the rights of the Holders of Debt Securities of such series
with respect to such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Debt Securities of any other series.
Upon the request of the Issuers, accompanied by copies of Board Resolutions authorizing the
execution of any such supplemental Indenture, and upon the filing with the Trustee of evidence of
the consent of Holders as aforesaid, the Trustee shall join with the Issuers and any guarantors
with respect to any Debt Securities in the execution of such supplemental Indenture unless such
supplemental Indenture affects the Trustee’s own rights, duties or immunities under this Indenture
or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter
into such supplemental Indenture.
It shall not be necessary for the consent of the Holders under this Section 9.02 to
approve the particular form of any proposed supplemental Indenture, but it shall be sufficient if
such consent shall approve the substance thereof.
After an amendment or waiver under this Section 9.02 becomes effective, the Issuers
shall mail to Holders of Debt Securities of each series affected thereby a notice briefly
describing such amendment or waiver. The failure to give such notice to all such Holders, or any
defect therein, shall not impair or affect the validity of an amendment or waiver under this
Section 9.02.
SECTION 9.03. Effect of Supplemental Indentures. Upon the execution of any
supplemental Indenture pursuant to the provisions of this Article IX, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the
Issuers and the Holders shall thereafter be determined, exercised and enforced hereunder subject in
all respects to such modifications and amendments, and all the terms and conditions of any such
supplemental Indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may receive
an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such
supplemental Indenture complies with the provisions of this Article IX.
SECTION 9.04. Debt Securities May Bear Notation of Changes by Supplemental Indentures.
Debt Securities of any series authenticated and delivered after the execution of any supplemental
Indenture pursuant to the provisions of this Article IX may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such
supplemental Indenture. New Debt Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained
in any such supplemental Indenture may be prepared and executed by the Issuers,
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authenticated by the Trustee and delivered in exchange for the Debt Securities of such series
then outstanding. Failure to make the appropriate notation or to issue a new Debt Security of such
series shall not affect the validity of such amendment.
ARTICLE X
Consolidation, Merger, Sale or Conveyance
Consolidation, Merger, Sale or Conveyance
SECTION 10.01. Consolidations and Mergers of the Issuers. Neither of the Issuers may,
directly or indirectly: (i) consolidate or merge with or into another Person (whether or not such
Issuer is the survivor); or (ii) sell, assign, transfer, lease, convey or otherwise dispose of all
or substantially all of its properties or assets, in one or more related transactions, to another
Person; unless:
(1) | either (a) such Issuer is the surviving entity of such transaction; or (b) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (the “Successor Company”) is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that PNG Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Partnership is not a corporation; | ||
(2) | the Successor Company assumes all the obligations of such Issuer under the Debt Securities and this Indenture pursuant to a supplemental Indenture reasonably satisfactory to the Trustee; | ||
(3) | immediately after such transaction no Default or Event of Default exists; and | ||
(4) | such Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental Indenture is required, such supplemental Indenture complies with this Indenture and all conditions precedent therein relating to such transaction have been satisfied. |
SECTION 10.02. Rights and Duties of Successor Company. In case of any consolidation,
merger or disposition respecting an Issuer in accordance with Section 10.01, the Successor
Company shall succeed to and be substituted for such Issuer, with the same effect as if it had been
named herein as the party of the first part, and the Issuer shall be relieved of any further
obligation under this Indenture and the Debt Securities. The Successor Company thereupon may cause
to be signed, and may issue either in its own name or in the name of such Issuer, any or all the
Debt Securities issuable hereunder which theretofore shall not have been signed by such Issuer and
delivered to the Trustee; and, upon the order of the Successor Company, instead of such Issuer, and
subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Debt Securities which previously shall have been signed
and delivered by the officers of such Issuer or its General Partner, as the case may be, to the
Trustee for authentication, and any Debt Securities which the Successor Company thereafter shall
cause to be signed and delivered to the Trustee for that
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purpose. All the Debt Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Debt Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all such Debt Securities had been issued at the date of
the execution hereof.
In case of any such consolidation, merger or disposition such changes in phraseology and form
(but not in substance) may be made in the Debt Securities appertaining thereto thereafter to be
issued as may be appropriate.
ARTICLE XI
Satisfaction and Discharge of Indenture; Unclaimed Moneys
Satisfaction and Discharge of Indenture; Unclaimed Moneys
SECTION 11.01. Satisfaction and Discharge; Application of Trust Money. This Indenture
shall upon the request of the Issuers cease to be of further effect with respect to all Outstanding
Debt Securities of any series (except as to surviving rights of registration of transfer or
exchange of Debt Securities of such series herein expressly provided for, the Issuers’ obligations
under Section 7.06, and the Trustee’s and each paying agent’s obligations under the last
paragraph of this Section 11.01 and Section 11.02) and the Trustee, on demand and
at the expense of the Issuers, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to such series, when:
(a) either
(i) all outstanding Debt Securities of such series therefore authenticated and
delivered (other than (A) Debt Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.09 and (B) Debt Securities
for whose payment money has been deposited in trust with the Trustee or any paying agent and
thereafter repaid to either Issuer or discharged from such trust) have been delivered to the
Trustee for cancellation; or
(ii) all outstanding Debt Securities of such series not theretofore delivered to the
Trustee for cancellation
(A) have become due and payable by reason of the giving of a notice of
redemption or otherwise,
(B) shall become due and payable at their Stated Maturity within one year, or
(C) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Issuers,
and the Issuers, in the case of clause (A), (B) or (C)
above, have irrevocably deposited or caused to be irrevocably deposited with the
Trustee as trust funds in trust for such purpose cash in Dollars or U.S. Government
Obligations, or a combination thereof, in an amount sufficient (without
consideration of any reinvestment of interest and as certified by an independent
public accountant
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designated by the Partnership expressed in a written certification thereof delivered
to the Trustee) to pay and discharge the entire indebtedness of such Debt Securities
not theretofore delivered to the Trustee for cancellation, for principal (and
premium, if any) and accrued and unpaid interest to the date of such deposit (in the
case of Debt Securities which have become due and payable) or the Stated Maturity or
redemption date, as the case may be;
(b) the Issuers have paid or caused to be paid all other sums then due and payable hereunder
by them under this Indenture; and
(c) the Partnership has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
In order to have money available on a payment date to pay principal (and premium, if any, on)
and interest on the Notes, the U.S. Government Obligations shall be payable as to principal (and
premium, if any) or interest at least one Business Day before such payment date in such amounts as
shall provide the necessary money.
The Trustee shall hold in trust money or U.S. Government Obligations deposited with it
pursuant to this Article XI. It shall apply the deposited money and the money from U.S.
Government Obligations through any paying agent and in accordance with this Indenture to the
payment of principal of, and premium, if any, and interest on, the Debt Securities of the defeased
series. Prior to the maturity of such series, the Trustee may, at the written direction of the
Issuers, invest such money in U.S. Government Obligations.
SECTION 11.02. Repayment to Issuers. The Trustee and any paying agent shall promptly
turn over to the Issuers upon request any excess money or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and any paying agent shall pay
to the Issuers upon request any money held by them for the payment of principal, premium, if any,
or interest that remains unclaimed for two years, and, thereafter, Holders entitled to such money
must look to the Issuers for payment as general creditors.
SECTION 11.03. Indemnity for U.S. Government Obligations. The Issuers shall pay and
shall indemnify the Trustee and the Holders against any tax, fee or other charge imposed on or
assessed against deposited U.S. Government Obligations or the principal and interest received on
such U.S. Government Obligations.
SECTION 11.04. Reinstatement. If the Trustee or any paying agent is unable to apply
any money or U.S. Government Obligations in accordance with this Article XI by reason of
any legal proceeding or by reason of any order or judgment of any court or government authority
enjoining, restraining or otherwise prohibiting such application, the Issuers’ obligations under
this Indenture and the Debt Securities of the defeased series shall be revived and reinstated as
though no deposit had occurred pursuant to this Article XI until such time as the Trustee
or any paying agent is permitted to apply all such money or U.S. Government Obligations in
accordance with this Article XI.
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ARTICLE XII
Miscellaneous Provisions
Miscellaneous Provisions
SECTION 12.01. Successors and Assigns of Issuers Bound by Indenture. All the
covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the
Issuers or the Trustee shall bind their respective successors and assigns, whether so expressed or
not.
SECTION 12.02. Acts of Board, Committee or Officer of Successor Company Valid. Any
act or proceeding by any provision of this Indenture authorized or required to be done or performed
by any Board of Directors, committee thereof or officer of the General Partner or PNG Finance, as
applicable, shall and may be done and performed with like force and effect by the like Board of
Directors, committee thereof or officer of any Successor Company.
SECTION 12.03. Required Notices or Demands. Except as otherwise expressly provided in
this Indenture, any notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders to or on the Issuers shall be in
writing in the English language and may be given or served by being deposited postage prepaid in a
post office letter box in the United States addressed (until another address is filed by the
Issuers with the Trustee) as follows: PAA Natural Gas Storage, L.P., 000 Xxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, Attention: Vice President-Legal. Except as otherwise expressly provided in
this Indenture, any notice, direction, request or demand by the Issuers or by any Holder to or upon
the Trustee shall be in writing in the English language and may be given or made, for all purposes,
by being deposited, postage prepaid, in a post office letter box in the United States addressed to
the Corporate Trust Office of the Trustee. The Issuers or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or communications.
Any notice required or permitted to a Registered Holder by the Issuers or the Trustee pursuant
to the provisions of this Indenture shall be in writing in the English language and shall be deemed
to be properly mailed by being deposited postage prepaid in a post office letter box in the United
States addressed to such Holder at the address of such Holder as shown on the Debt Security
Register. Any report pursuant to Section 313 of the Trust Indenture Act shall be transmitted in
compliance with subsection (c) therein.
In the event of suspension of regular mail service or by reason of any other cause it shall be
impracticable to give notice by mail, then such notification as shall be given with the approval of
the Trustee shall constitute sufficient notice for every purpose thereunder.
Failure to mail a notice or communication to a Holder or any defect in it or any defect in any
notice by publication as to a Holder shall not affect the sufficiency of such notice with respect
to other Holders. If a notice or communication is mailed or published in the manner provided
above, it is conclusively presumed duly given.
SECTION 12.04. Indenture and Debt Securities to Be Construed in Accordance with the Laws
of the State of New York. This Indenture and each Debt Security shall be deemed to be
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New York contracts, and for all purposes shall be construed in accordance with the laws of
said State.
SECTION 12.05. Officers’ Certificate and Opinion of Counsel to Be Furnished upon
Application or Demand by the Issuers. Upon any application or demand by the Issuers to the
Trustee to take any action under any of the provisions of this Indenture, the Issuers shall furnish
to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent have been complied with, except
that in the case of any such application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture shall include (1)
a statement that the Person making such certificate or opinion has read such covenant or condition,
(2) a brief statement as to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based, (3) a statement that, in
the opinion of such Person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or condition has been
complied with and (4) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with.
SECTION 12.06. Payments Due on Legal Holidays. In any case where the date of maturity
of interest on or principal of and premium, if any, on the Debt Securities of a series or the date
fixed for redemption or repayment of any Debt Security or the making of any sinking fund payment
shall not be a business day at any Place of Payment for the Debt Securities of such series, then
payment of interest or principal and premium, if any, or the making of such sinking fund payment
need not be made on such date at such Place of Payment, but may be made on the next succeeding
business day at such Place of Payment with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the period after such
date. If a record date is not a business day, the record date shall not be affected.
SECTION 12.07. Provisions Required by Trust Indenture Act to Control. If and to the
extent that any provision of this Indenture limits, qualifies or conflicts with another provision
included in this Indenture which is required to be included in this Indenture by any of Sections
310 to 318, inclusive, of the Trust Indenture Act, such required provision shall control.
SECTION 12.08. Computation of Interest on Debt Securities. Interest, if any, on the
Debt Securities shall be computed on the basis of a 360-day year of twelve 30-day months, except as
may otherwise be provided pursuant to Section 2.03.
SECTION 12.09. Rules by Trustee, Paying Agent and Registrar. The Trustee may make
reasonable rules for action by or a meeting of Holders. The Registrar and any paying agent may
make reasonable rules for their functions.
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SECTION 12.10. No Recourse Against Others. No past, present or future director,
officer, partner, employee, incorporator, manager, stockholder, unitholder or member of the
Issuers, the General Partner or any other obligor on the Debt Securities of any series, as such,
shall have any liability for any obligations of the Issuers or such other obligors under the Debt
Securities, this Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Debt Security waives and releases all
such liability. The waiver and release are part of the consideration for issuance of the Debt
Securities.
SECTION 12.11. Severability. In case any provision in this Indenture or the Debt
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.
SECTION 12.12. Effect of Headings. The article and section headings herein and in the
Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 12.13. Indenture May Be Executed in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original, but such counterparts
shall together constitute but one and the same instrument.
The Trustee hereby accepts the trusts in this Indenture upon the terms and conditions herein
set forth.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly signed as of the
date first written above.
PAA NATURAL GAS STORAGE, L.P. | ||||||
By | PNGS GP LLC, its General Partner | |||||
By | ||||||
Name: | ||||||
Title: | ||||||
PNG FINANCE CORP. | ||||||
By | ||||||
Name: | ||||||
Title: | ||||||
U.S. BANK NATIONAL ASSOCIATION | ||||||
By | ||||||
Name: | ||||||
Title: |
[Signature
Page to Senior Indenture]