EXHIBIT 4.5
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NGC CORPORATION,
ELECTRIC CLEARINGHOUSE, INC
AND
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
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SECOND SUPPLEMENTAL INDENTURE
Dated as of October 11, 1996
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Supplementing and Amending the Indenture
dated as of
December 11, 1995
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THIS SECOND SUPPLEMENTAL INDENTURE, dated as of October 11, 1996, is among
NGC Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
00000 Xxxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Electric
Clearinghouse, Inc., a Texas corporation ("ECI") and the First National Bank of
Chicago, a national banking association, as Trustee (herein called the
"Trustee"). Any capitalized term used in this Second Supplemental Indenture and
not defined herein shall have the meaning specified in the Original Indenture
(as defined below).
RECITALS OF THE COMPANY
The Company and each of the Initial Subsidiary Guarantors heretofore have
made, executed and delivered to the Trustee an Indenture dated as of December
11, 1995 (the "Original Indenture") to provide for the issuance from time to
time of unsecured debentures, notes or other evidences of indebtedness of the
Company (herein called the "Securities"), to be issued in one or more series as
provided in the Original Indenture.
Pursuant to a First Supplemental Indenture dated as of August 31, 1996 (the
"First Supplemental Indenture"), (i) Xxxxxx Petroleum Company, Limited
Partnership, a Delaware limited partnership ("Xxxxxx Petroleum"), (ii) WPC LP,
Inc., a Delaware corporation ("WPC"), and (iii) WTLPS, Inc., a Delaware
Corporation ("WTLPS"), each became an Additional Subsidiary Guarantor.
The Company's obligations under the Original Indenture and the Securities
are guaranteed by the Subsidiary Guarantors.
The Company has duly authorized and issued a series of $150,000,000 of its
6 3/4% Senior Notes due December 15, 2005 as Securities pursuant to the Original
Indenture.
ECI will become a guarantor of certain Funded Indebtedness of the Company.
Section 1505 of the Original Indenture provides that if any Subsidiary of
the Company guarantees or becomes primarily obligated with respect to any Funded
Indebtedness of the Company other than the Securities at any time subsequent to
the Issue Date, then the Company shall cause the Securities to be equally and
ratably guaranteed by such Subsidiary and cause such Subsidiary to execute and
deliver a supplemental indenture evidencing its provision of a Subsidiary
Guarantee in accordance with the terms of the Original Indenture.
It is deemed necessary and desirable to supplement and amend the Original
Indenture to add ECI as a Subsidiary Guarantor as provided in Section 1505 of
the Original Indenture (the Original Indenture, as so supplemented and amended
by the First Supplemental Indenture and this Second Supplemental Indenture,
being sometimes referred to herein as the "Indenture").
The Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, stating that this Second Supplemental Indenture has been
duly authorized and executed by ECI and constitutes the legal, valid, binding
and enforceable obligation of ECI subject to certain exceptions regarding
enforceability.
All things necessary to make this Second Supplemental Indenture, and to
make the Original Indenture a valid agreement of the Company and each of the
Subsidiary Guarantors, in accordance with its terms, have been done.
In September of 1996, the names of certain Subsidiary Guarantors were
changed as follows: Trident NGL, Inc. was renamed Xxxxxx NGL, Inc.; NGC Energy
Resources, Limited Partnership was renamed Xxxxxx Energy Resources, Limited
Partnership; NGC Liquids Marketing, Inc. was renamed Xxxxxx Gas Liquids, Inc.;
Trident Gas Marketing, Inc. was renamed Xxxxxx Gas Marketing, Inc.; Trident NGL
Pipeline Company was renamed Xxxxxx NGL Pipeline Company; and Trident
Acquisition Corp. was renamed Xxxxxx Intrastate Gas Supply, Inc.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
(together with the related Subsidiary Guarantees) by the Holders thereof, it is
mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities or of a series thereof (together with the related Subsidiary
Guarantees), as follows:
ARTICLE ONE
ADDITIONAL SUBSIDIARY GUARANTOR
SECTION 1.1 ADDITION OF ECI AS A SUBSIDIARY GUARANTOR. ECI by execution
of this Second Supplemental Indenture hereby agrees to be bound by the terms of
this Indenture as a Subsidiary Guarantor and agrees to be subject to the
provisions (including the representations and warranties) of the Indenture
applicable to Subsidiary Guarantors.
ARTICLE TWO
ADDITIONAL REPRESENTATIONS
AND COVENANTS OF THE COMPANY
AND THE SUBSIDIARY GUARANTORS
SECTION 2.1 AUTHORITY OF THE COMPANY. The Company represents and warrants
that it is duly authorized by a resolution of the Board of Directors to execute
and deliver this Second Supplemental Indenture, and all corporate action on its
part required for the execution and delivery of this Second Supplemental
Indenture has been duly and effectively taken.
SECTION 2.2 AUTHORITY OF ECI. ECI represents and warrants that it is duly
authorized by a resolution of its respective Board of Directors to execute and
deliver this Second Supplemental Indenture, and all corporate action on the part
of each required for the execution and delivery of this Second Supplemental
Indenture has been duly and effectively taken.
SECTION 2.3 RECITALS AND STATEMENTS. The Company warrants that the
recitals of fact and statements contained in this Second Supplemental Indenture
are true and correct, and that the recitals of fact and statements contained in
all certificates and other documents furnished hereunder will be true and
correct.
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ARTICLE THREE
CONCERNING THE TRUSTEE
SECTION 3.1 ACCEPTANCE OF TRUSTS. The Trustee accepts the trust hereunder
and agrees to perform the same, but only upon the terms and conditions set forth
in the Original Indenture, the First Supplemental Indenture and in this Second
Supplemental Indenture, to all of which the Company, Subsidiary Guarantors and
the respective Holders of Securities at any time hereafter outstanding agree by
their acceptance thereof.
SECTION 3.2 RESPONSIBILITY OF TRUSTEE FOR RECITALS, ETC. The recitals and
statements contained in this Second Supplemental Indenture shall be taken as the
recitals and statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Second Supplemental
Indenture, except that the Trustee is duly authorized to execute and deliver
this Second Supplemental Indenture.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.1 RELATION TO THE INDENTURE. The provisions of this Second
Supplemental Indenture shall be deemed to be effective immediately upon the
execution and delivery hereof. This Second Supplemental Indenture and all the
terms and provisions herein contained shall form a part of the Indenture as
fully and with the same effect as if all such terms and provisions had been set
forth in the Original Indenture. The Original Indenture is hereby ratified and
confirmed and shall remain and continue in full force and effect in accordance
with the terms and provision thereof, as supplemented and amended by the First
Supplemental Indenture and this Second Supplemental Indenture, and the Original
Indenture, the First Supplemental Indenture and this Second Supplemental
Indenture shall be read, taken and construed together as one instrument.
SECTION 4.2 COUNTERPARTS OF SECOND SUPPLEMENTAL INDENTURE. This Second
Supplemental Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 4.3 GOVERNING LAW. This Second Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
COMPANY
NGC CORPORATION
By: ----------------------------
H. Xxxxx Xxxxxxx
Senior Vice President
ADDITIONAL SUBSIDIARY GUARANTOR
ELECTRIC CLEARINGHOUSE, INC.
By: ----------------------------
H. Xxxxx Xxxxxxx
Senior Vice President
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TRUSTEE
THE FIRST NATIONAL BANK OF CHICAGO
By: ------------------------------
Name:
Title:
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