Exhibit 4.01 (b)
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE
entered into as of the 1st day of February, 1985, among EQUITABLE
RESOURCES, INC., a Pennsylvania corporation, formerly known as
Equitable Gas Company (the "Issuer"), PITTSBURGH NATIONAL BANK
("PNB"), and BANKERS TRUST COMPANY, a New York banking
corporation ("Bankers").
W I T N E S S E T H
WHEREAS, the Issuer and PNB entered into an Indenture dated
as of April 1, 1983 (the "Indenture") providing for the issuance
from time to time of the Issuer's unsecured debentures, notes or
other evidences of indebtedness (defined in the Indenture as
"Securities"), to be issued in one or more series as provided in
the Indenture;
WHEREAS, there has been issued under the Indenture
$50,000,000 aggregate principal amount of the Issuer's
Debentures, 12-1/8% Series Due April 1, 2008 (the "Debentures"),
all of which are outstanding at the date hereof and which are the
only Securities outstanding under the Indenture;
WHEREAS, PNB has been acting as Trustee under the Indenture:
WHEREAS, Section 610 (b) of the Indenture provides that the
Trustee may resign at any time and be discharged of the trust
created by the Indenture by giving written notice thereof to the
Issuer and by mailing notice of its resignation to the holders of
Debentures;
WHEREAS, Section 610 (e) of the Indenture further provides
for the appointment by the Issuer of a successor Trustee in the
event of the Trustee's resignation;
WHEREAS, the Issuer has, by action of its Board of
Directors, determined to appoint Bankers as successor Trustee
under the Indenture; and
WHEREAS, Bankers is qualified to act as successor Trustee
under the Indenture and is willing to accept such appointment as
successor Trustee on the terms and conditions set forth herein
and under the Indenture.
NOW, THEREFORE, pursuant to the provisions of the Indenture,
in consideration of the covenants herein contained and intending
to be legally bound hereby, the Issuer, PNB and Bankers agree as
follows:
1. PNB hereby resigns as Trustee under the Indenture.
2. The Issuer hereby accepts the resignation of PNB as
Trustee under the Indenture. Pursuant to the authority vested in
it by Section 610 (e) of the Indenture, the Issuer hereby
appoints Bankers as successor Trustee under the Indenture, with
all the estate, properties, rights, powers, trusts, duties and
obligations heretofore vested in PNB as Trustee under the
Indenture. The Issuer also hereby designates, pursuant to
Section 1002 of the Indenture, the corporate trust office of
Bankers, presently located at Four Albany Street, New York, New
York 10015, as the office or agency of the Issuer in the Borough
of Manhattan, the City of New York, New York where (a) the
Debentures outstanding under the Indenture may be presented or
surrendered for payment, (b) the
Debentures may be presented for registration of transfer or
exchange, and (c) notices and demands to or upon the Issuer in
respect of the Indenture or the Debentures may be served. The
Issuer also hereby confirms its prior designation, pursuant to
Section 1002 of the Indenture and Section 5.1 of the Board
Resolution establishing certain terms and provisions of the
Debentures, of the corporate trust office of PNB, presently
located at Fifth Avenue and Wood Street, Pittsburgh, Pennsylvania
15222 as the office or agency of the Issuer in the City of
Pittsburgh, Pennsylvania for the aforesaid purposes. PNB's
resignation as Trustee, Bankers' succession as Trustee and the
designation of the office described in the second preceding
sentence shall each be effective at the close of business on the
date of this instrument.
3. The Issuer represents and warrants to Bankers that:
(a) it is validly organized and existing under the
laws of the state of its incorporation and has the
power and authority to carry out its business as
now conducted;
(b) the Debentures were validly and lawfully issued;
(c) it has performed or fulfilled each covenant,
agreement and condition on its part to be
performed or fulfilled under the Indenture;
(d) it has no knowledge of the existence of any
default, or Event of Default (as defined in the
Indenture), or any event which upon notice or
passage of time or both would become an Event of
Default under the Indenture: and
(e) it has not appointed any paying agents under the
Indenture other than PNB.
4. PNB represents and warrants to the Issuer and to
Bankers that:
(a) it has made, or promptly will make, available to
Bankers, originals of all documents relating to
the trust created by the Indenture and all
information in the possession of its corporate
trust department relating to the administration of
the trust and will furnish to Bankers any of such
documents or information as Bankers may select:
(b) based on information known to the Trustee, no
default, or Event of Default (as defined in the
Indenture), or any event which upon notice or
passage of time or both would become an Event of
Default under the Indenture exists; and
(c) it has lawfully and fully discharged its duties as
Trustee under the Indenture.
5. Bankers represents and warrants to the Issuer that it
is qualified and eligible to act as Trustee under the Indenture,
including under the provisions of Sections 608 and 609 thereof.
6. Bankers hereby accepts the appointment as successor
Trustee under the Indenture and the trust created thereby, and
assumes all rights, powers, duties and obligations of the Trustee
under the Indenture. Bankers will execute said trust and exercise
and perform said rights, powers, duties and obligations upon the
terms and conditions set forth in the Indenture.
7. Bankers hereby accepts the designation of its corporate
trust office as the office or agency of the Issuer in the Borough
of Manhattan, the City of New York, New York for the purposes
specified in paragraph 2.
8. PNB hereby acknowledges receipt of all compensation and
other amounts due it under the Indenture and hereby confirms,
assigns, transfers and sets over to Bankers, as successor Trustee
under the Indenture, upon the trust expressed in the Indenture,
any and all moneys and all the rights, powers, trusts, duties and
obligations which PNB now holds as Trustee under and by virtue of
the Indenture.
9. Bankers shall, on behalf of the Company and PNB and at
the expense of the
Company, mail a notice, in the form of Annex A hereto, of the
resignation and succession effected hereby to the holders of the
Debentures within 10 days of the date hereof.
10. Except as affected hereby, the Indenture is hereby
confirmed and shall remain in full force and effect.
11. The Issuer and PNB hereby agree, upon the request of
Bankers, to execute, acknowledge and deliver such further
instruments of conveyance and assurance and do such other things
as may be required for more fully and certainly vesting and
confirming in Bankers all of the properties, rights, powers,
duties and obligations of Bankers as successor Trustee under the
Indenture
12. Terms not otherwise defined in this Agreement are used
as defined in the Indenture.
13. This Agreement and the rights of the Parties hereunder
shall be governed by, and construed in accordance with, the laws
of the Commonwealth of Pennsylvania.
14. This agreement may be executed and acknowledged in one
or more counterparts, and by the different Parties hereunto
separate counterparts, each of which shall be deemed an original,
and all such counterparts shall together constitute but one and
the same instrument. This Agreement shall become effective upon
the execution of counterparts hereof by all parties hereto
whether or not all such parties have executed the same
counterpart.
WITNESS the due execution hereof as of the date first above
written.
[CORPORATE SEAL]
ATTEST: EQUITABLE RESOURCES, INC.
By
Secretary John C. Bertges,
Senior Vice
President - Financial and
Administrative
(CORPORATE SEAL)
ATTEST: PITTSBURGH NATIONAL BANK
Authorized Officer By Joseph A. Richardson, Jr.
Senior Vice President and
Secretary
(CORPORATE SEAL)
ATTEST: BANKERS TRUST COMPANY
Assistant Secretary Vice President
ANNEX A
NOTICE OF RESIGNATION OF TRUSTEE
AND
APPOINTMENT OF SUCCESSOR TRUSTEE
To the Holders of
EQUITABLE GAS COMPANY
(now EQUITABLE RESOURCES, INC.)
DEBENTURES, 12-1/8% SERIES DUE APRIL 1, 2008
(the "Debentures")
NOTICE IS HEREBY GIVEN that, pursuant to Section 610 of the
Indenture dated as of April 1, 1983 (the "Indenture") under which
the above mentioned Debentures were issued, the undersigned
PITTSBURGH NATIONAL BANK has resigned as Trustee under the
Indenture, and EQUITABLE RESOURCES, INC., formerly Equitable Gas
Company (the "Company"), has appointed BANKERS TRUST COMPANY as
successor Trustee under the Indenture. Bankers Trust Company has,
pursuant to Section 611 of the Indenture, accepted such
appointment. The address of the corporate trust office of the
successor Trustee is Four Albany Street, New York, New York
10015. The Company has also designated said office as the office
or agency of the Company in the Borough of Manhattan, the City of
New York, New York where (a) the Debentures may be presented or
surrendered for payment, (b) the Debentures may be presented for
registration of transfer or exchange and (c) notices and demands
to or upon the Company in respect of the Debentures or the
Indenture may be served. Such resignation and succession and the
designation of such office are all effective at the close of
business on the date of this Notice. Pittsburgh National Bank
remains the office or agency of the Company
for such purposes in the City of Pittsburgh, Pennsylvania.
Debentures being sent for payment or registration of
transfer or exchange should be sent to one of the following
addresses:
By Mail By Hand
Corporate Trust Office Corporate Trust Office
Pittsburgh National Bank Pittsburgh National Bank
Fifth Avenue and Wood Street Fifth Avenue and Wood Street
Pittsburgh, PA 15222 Pittsburgh, PA 15222
Bankers Trust Company Bankers Trust Company
Corporate Trust and Agency Group Corporate Trust and Agency
Group
Securities Processing Service Securities Processing Service
Division Division
P. O. Box 2579 123 Washington Street
Church Street Station First Floor
New York, NY 10008 New York, NY 10006
Dated: February 1, 1985 EQUITABLE RESOURCES, INC.
PITTSBURGH NATIONAL BANK
BANKERS TRUST COMPANY
COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF ALLEGHENY )
On this 1st day of February, 1985, before me, the
undersigned officer, personally appeared JOHN C. BERTGES, who
acknowledged himself to be Vice President - Financial and
Administrative of Equitable Resources, Inc., a corporation, and
that he as such Vice President, being authorized to do so,
executed the foregoing instrument for the purposes therein
contained by signing the name of the corporation by himself as
President.
IN WITNESS WHEREOF, I hereunto set my hand and official
seal.
Notary Public
My Commission Expires
COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF ALLEGHENY )
On this 1st day of February, 1985, before me, the
undersigned officer, personally appeared JOSEPH A. RICHARDSON,
JR., who acknowledged himself to be Senior Vice President and
Secretary of Pittsburgh National Bank, a national banking
association, and that he as such Senior Vice President and
Secretary, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name
of said banking association by himself as Vice President and
Secretary.
IN WITNESS WHEREOF, I hereunto set my hand and official
seal.
Notary Public
My Commission Expires:
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 1st day of February, 1985, before me, the
undersigned officer, personally appeared T.J. Moskio who
acknowledged himself to be Vice President of Bankers Trust
Company, a New York banking association, and that he as such Vice
President, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name
of said banking association by himself as Vice President.
IN WITNESS WHEREOF, I hereunto set my hand and official
seal.
Notary Public
By Commission Expires: