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EXHIBIT 4.2
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Conformed Copy
PNG ACQUISITION COMPANY,
PIEDMONT NATURAL GAS COMPANY, INC.
and
CITIBANK, N.A., AS TRUSTEE
____________
FIRST SUPPLEMENTAL INDENTURE
Dated as of February 25, 1994
(Supplemental to Indenture dated as of April 1, 1993)
____________
Debt Securities
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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of the 25th day of
February, 1994, is between PIEDMONT NATURAL GAS COMPANY, INC., a corporation
duly organized and existing under the laws of the State of New York
("Piedmont"), PNG ACQUISITION COMPANY, a corporation duly organized and
existing under the laws of the State of North Carolina ("New Piedmont"), and
CITIBANK, N.A., a national banking association duly organized and existing
under the laws of the United States (the "Trustee").
W I T N E S S E T H:
WHEREAS, Piedmont has heretofore executed and delivered to the Trustee
an Indenture dated as of April 1, 1993 (the "Indenture"); and
WHEREAS, Section 11.01 of the Indenture provides that Piedmont may
merge into any corporation organized and existing under the laws of the United
States of America or a state thereof or the District of Columbia provided that
(i) such corporation expressly assumes the due and punctual payment of the
principal, premium (if any) and interest on all the Debt Securities, according
to their tenor, and the due and punctual performance and observance of all of
the covenants and conditions of the Indenture to be performed by Piedmont and
(ii) immediately thereafter such corporation is not in default in the
performance or observance of any of the covenant or condition of the Indenture;
and
WHEREAS, Piedmont desires to change its state of incorporation from
New York to North Carolina, and in order to accomplish this change in state of
incorporation proposes to undertake the merger of Piedmont with and into New
Piedmont, a wholly-owned subsidiary of Piedmont incorporated under the laws of
the state of North Carolina (the "Merger") pursuant to an Agreement and Plan of
Merger to be dated as of February 25, 1994 (the "Plan of Merger") and the name
of New Piedmont will be changed to "Piedmont Natural Gas Company, Inc."; and
WHEREAS, Section 10.01(a) of the Indenture provides that, without the
consent of any holders of the Debt Securities, Piedmont, when authorized by its
Board of Directors, and the Trustee may enter into an indenture supplemental
thereto to evidence the succession of another corporation to Piedmont and the
assumption by the successor corporation of the covenants,
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agreements and obligations of Piedmont pursuant to Article Eleven thereof; and
WHEREAS, New Piedmont intends by this First Supplemental Indenture to
assume the due and punctual payment of the principal, premium (if any) and
interest on all Debt Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
the Indenture to be performed by Piedmont; and
WHEREAS, Piedmont and New Piedmont represent that all acts and things
necessary to constitute this First Supplemental Indenture a valid, binding and
enforceable instrument have been done and performed, and the execution of this
First Supplemental Indenture has in all respects been duly authorized, and each
of Piedmont and New Piedmont, in the exercise of legal right and power in it
vested, is executing this First Supplemental Indenture; and
WHEREAS, Piedmont has heretofore delivered or is delivering
contemporaneously herewith to the Trustee (i) a copy of the resolution of its
Board of Directors certified by its Secretary or an Assistant Secretary
authorizing the execution of the First Supplemental Indenture, and (ii) an
Officers' Certificate and an Opinion of Counsel each stating that the execution
and delivery of this First Supplemental Indenture comply with the provisions of
Article Ten of the Indenture, that the Merger complies with the provisions of
Article Eleven of the Indenture and that all conditions precedent provided for
in the Indenture to the execution and delivery of this First Supplemental
Indenture have been complied with:
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other valuable consideration, the receipt
whereof is hereby acknowledged, the parties have executed and delivered this
First Supplemental Indenture and Piedmont and New Piedmont covenant and agree
with the Trustee for the equal and proportionate benefit of the respective
holders, from time to time, of the Debt Securities, as follows:
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SECTION 1. DEFINITIONS. For all purposes of this First Supplemental
Indenture, except as otherwise expressly provided or unless the context
otherwise requires, the terms used herein shall have the meanings assigned to
them in the Indenture.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF PIEDMONT AND NEW
PIEDMONT. Piedmont and New Piedmont hereby represent and warrant that
immediately following the Merger, New Piedmont will not be in default in the
performance or observance of any of the covenants or conditions of the
Indenture.
SECTION 3. ASSUMPTION BY NEW PIEDMONT. New Piedmont hereby assumes
the due and punctual payment of the principal, premium (if any) and interest on
all the Debt Securities, according to their tenor, and the due and punctual
performance and observance of all covenants and conditions of the Indenture to
be performed by Piedmont.
SECTION 4. EFFECTIVENESS OF THIS FIRST SUPPLEMENTAL INDENTURE. This
First Supplemental Indenture shall become effective upon and simultaneously
with consummation of the Merger. Upon the effectiveness of this First
Supplemental Indenture, New Piedmont shall succeed to and be substituted for
Piedmont with the same effect as if New Piedmont had been named in the
Indenture.
SECTION 5. CONCERNING THE TRUSTEE. The Trustee accepts the trusts of
the Indenture as supplemented by this First Supplemental Indenture and agrees
to perform the same, but only upon the terms and conditions set forth in the
Indenture, as supplemented by this First Supplemental Indenture, to which the
parties hereto and the holders from time to time agree. Without limiting the
generality of the foregoing, the Trustee assumes no responsibility for the
correctness of the recitals herein contained, which shall be taken as the
statements of Piedmont and New Piedmont.
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SECTION 6. MISCELLANEOUS.
(a) Except as hereby expressly amended, the Indenture is in all
respects ratified and confirmed and all the terms, provisions and conditions
thereof shall be and remain in full force and effect.
(b) All the covenants, stipulations, promises and agreements in this
First Supplemental Indenture contained by or on behalf of New Piedmont shall
bind its successors and assigns, whether so expressed or not.
(c) This First Supplemental Indenture shall be deemed to be contract
made under the laws of the State of New York, and for all purposes shall be
governed by and construed in accordance with the laws of said State.
(d) If any provision of the Indenture as supplemented by this First
Supplemental Indenture limits, qualifies or conflicts with a provision of the
Trust Indenture Act that is required under such Act to be a part of or govern
the Indenture, such latter provision shall control. If any provision of the
Indenture, as supplemented by this First Supplemental Indenture, modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to the Indenture as so
modified or to be excluded, as the case may be.
(e) The titles and headings of the sections of this First
Supplemental Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof and shall in no way modify or restrict
any of the terms or provisions hereof.
(f) This First Supplemental Indenture may be executed in any number
of counterparts, each of which shall be an original.
(g) In case any provision in this First Supplemental Indenture shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof or of the Indenture shall
not in any way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereto affixed and attested, all as of the date first above
written.
PIEDMONT NATURAL GAS COMPANY, INC.
By /s/ John H. Maxheim
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Attest:
/s/ Martin C. Ruegsegger
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[Corporate Seal]
PNG ACQUISITION COMPANY
By /s/ John H. Maxheim
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Attest:
/s/ Martin C. Ruegsegger
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[Corporate Seal]
CITIBANK, N.A., AS TRUSTEE
By /s/ John Byrnes
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Attest:
- ------------------------
[Corporate Seal]
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STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 25th day of February, 1994 before me personally came John H.
Maxheim, to me known, who, being by me duly sworn, did depose and say that he
resides at 1915 Rexford Road, that he is Chairman and President of Piedmont
Natural Gas Company, Inc., one of the parties described in and which executed
the above instrument; that he knows the corporate seal of said corporation;
that the seal affixed to the said instrument is such corporate seal; that it
was so affixed by authority of the board of directors of said corporation, and
that he signed his name thereto by like authority.
/s/ Joy D. Waggoner
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Notary Public
[NOTARIAL SEAL]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 25th day of February, 1994 before me personally came John H.
Maxheim, to me known, who, being by me duly sworn, did depose and say that he
resides at 1915 Rexford Road, that he is Chairman and President of PNG
Acquisition Company, one of the parties described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that
the seal affixed to the said instrument is such corporate seal; that it was so
affixed by authority of the board of directors of said corporation, and that he
signed his name thereto by like authority.
/s/ Joy D. Waggoner
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Notary Public
[NOTARIAL SEAL]
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 7th day of September, 1994 before me personally came John
Byrnes, to me known, who, being by me duly sworn, did depose and say that (s)he
resides at 2388 Washington Ave., Queens, N.Y., that (s)he is Vice President of
Citibank, N.A., as Trustee, one of the parties described in and which executed
the above instrument; that (s)he knows the corporate seal of said corporation;
that the seal affixed to the said instrument is such corporate seal; that it
was so affixed by authority of the board of directors of said corporation, and
that (s)he signed (his) (her) name thereto by like authority.
/s/ Nancy H. Forte
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Notary Public
[NOTARIAL SEAL]
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