FIFTH SUPPLEMENTAL INDENTURE between PANHANDLE EASTERN PIPE LINE COMPANY, LP Issuer and THE BANK OF NEW YORK TRUST COMPANY, N.A Trustee Dated as of October 26, 2007
between
PANHANDLE
EASTERN PIPE LINE COMPANY, LP
Issuer
and
THE
BANK
OF NEW YORK TRUST COMPANY, N.A
Trustee
Dated
as
of October 26, 2007
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Table
of
Contents
ARTICLE
I
DEFINITIONS
|
|
SECTION
1.1Definition of Terms. 3
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ARTICLE
II
GENERAL
TERMS AND CONDITIONS OF THE SENIOR NOTES
|
|
SECTION
2.1Designation and Principal Amount of the Senior Notes. 10
|
|
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SECTION
2.2Maturity of the Senior Notes. 10
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SECTION
2.3Interest on the Senior Notes. 10
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SECTION
2.4Form of the Senior Notes. 10
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SECTION
2.5Redemption of the Senior Notes. 10
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ARTICLE
III
COVENANTS
|
|
SECTION
3.1Limitation on Restricted Payments. 11
|
|
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SECTION
3.2Limitation on Liens. 12
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SECTION
3.3Restriction on Sale-Leasebacks. 16
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SECTION
3.4Financial Information. 18
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SECTION
3.5Applicability of Covenants. 19
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ARTICLE
IV
DEFAULT
|
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SECTION
4.1General. 19
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|
SECTION
4.2Additional Event of Default. 19
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ARTICLE
V
DEFEASANCE
|
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SECTION
5.1General. 19
|
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|
SECTION
5.2Covenant Defeasance. 19
|
ARTICLE
VI
FORM
OF
SENIOR NOTES
|
|
SECTION
6.1Form of Senior Notes. 20
|
ARTICLE
VII
ISSUANCE
OF SENIOR NOTES
|
|
SECTION
7.1Original Issue of Senior Notes. 28
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|
SECTION
7.2Additional Senior Notes. 28
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ARTICLE
VIII
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MISCELLANEOUS
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SECTION
8.1Consent, Amendment and Waiver. 28
|
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SECTION
8.2Ratification of Indenture. 29
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SECTION
8.3Trustee Not Responsible for Recitals. 29
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SECTION
8.4Governing Law. 29
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SECTION
8.5Separability. 29
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SECTION
8.6Counterparts. 29
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FIFTH
SUPPLEMENTAL INDENTURE, dated as of October 26, 2007 (the “Fifth Supplemental
Indenture”), between Panhandle Eastern Pipe Line Company, LP (formerly known as
Panhandle Eastern Pipe Line Company, LLC and Panhandle Eastern Pipe Line
Company), a Delaware limited partnership (the “Issuer”), and The Bank of New
York Trust Company, N.A. (as successor to ▇.▇. ▇▇▇▇▇▇ Trust Company, National
Association), as trustee (the “Trustee”) under the indenture, dated as of March
29, 1999, among the Issuer, CMS Panhandle Holding Company, a Michigan
corporation, and NBD Bank, as trustee (the “Base Indenture” and, as so
supplemented, the “Indenture”).
WHEREAS,
CMS Panhandle Holding Company and the Issuer executed and delivered the Base
Indenture to NBD Bank to provide for the future issuance of CMS Panhandle
Holding Company’s unsecured debt securities guaranteed by the Issuer, to be
issued from time to time in one or more series as might be determined by CMS
Panhandle Holding Company under the Indenture, in an unlimited aggregate
principal amount which may be authenticated and delivered as provided in the
Base Indenture;
WHEREAS,
the Issuer, CMS Panhandle Holding Company, and NBD Bank executed the First
Supplemental Indenture, dated as of March 29, 1999, under which CMS Panhandle
Holding Company issued a series of Debt Securities in three tranches known
as
its 6.125% Senior Notes due 2004, 6.500% Senior Notes due 2009 and 7.000% Senior
Notes due 2029 in aggregate principal amounts of $300,000,000, $200,000,000
and
$300,000,000, respectively;
WHEREAS,
Panhandle Eastern Pipe Line Company became the Issuer as provided for in the
Base Indenture as a result of the merger of CMS Panhandle Holding Company into
Panhandle Eastern Pipe Line Company, effective June 15, 1999, and Bank One
Trust
Company, National Association became the Trustee provided for in the Base
Indenture as a result of the merger of NBD Bank into Bank One Trust Company,
National Association;
WHEREAS,
the Issuer and the Trustee executed the Second Supplemental Indenture, dated
as
of March 27, 2000, under which the Issuer issued a series of Debt Securities
known as its 8.25% Senior Notes due 2010, Series A, in the principal amount
of
$100,000,000 (the “2010 A Senior Notes”), and a series of senior notes to be
issued in exchange for the 2010 A Senior Notes, known as the Issuer’s “8.25%
Senior Notes Due 2010, Series B,” in the principal amount of
$100,000,000;
WHEREAS,
in June, ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, LLC, a wholly-owned subsidiary of
Southern Union Company (“Southern Union”), acquired all of the outstanding
capital stock of the Issuer, after which Southern Union caused Panhandle Eastern
Pipe Line Company to convert to a Delaware limited liability
company;
WHEREAS,
the Issuer and the Trustee executed the Third Supplemental Indenture, dated
as
of August 18, 2003, to provide for the establishment of two new series of its
Debt Securities: (i) the 4.80% Senior Notes due 2008 in the initial principal
amount of $300,000,000, consisting of two tranches, the first tranche of 4.80%
Senior Notes due 2008 known as “4.80% Senior Notes due 2008, Series A” (the
“4.80% Series A Notes”), and the second tranche of 4.80% Senior Notes due 2008
to be issued in exchange for the 4.80% Series A Notes, known as “4.80% Senior
Notes due 2008, Series B”; and (ii) the 6.05% Senior Notes due 2013 in the
initial
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principal
amount of $250,000,000, consisting of two tranches, the first tranche of 6.05%
Senior Notes due 2013 known as “6.05% Senior Notes due 2013, Series A” (the
“6.05% Series A Notes”), and the second tranche of 6.05% Senior Notes due 2013
to be issued in exchange for the 6.05% Series A Notes, known as the “6.05%
Senior Notes due 2013, Series B”;
WHEREAS,
▇.▇. ▇▇▇▇▇▇ Trust Company, National Association became the Trustee provided
for
in the Base Indenture as a result of the assumption of certain assets of Bank
One Trust Company, National Association by a merger subsidiary which later
merged with and into ▇.▇. ▇▇▇▇▇▇ Trust Company, National
Association;
WHEREAS,
the Issuer and Trustee executed the Fourth Supplemental Indenture, dated of
a
March 12, 2004, under which the Issuer issued two new series of its Debt
Securities: (i) the 2.75% Senior Notes due 2007, Series A, in the initial
principal amount of $200,000,000 (the “Series A Notes”), and (ii) the second
series, to be issued in exchange for the Series A Notes, known as the “2.75%
Senior Notes due 2007, Series B”;
WHEREAS,
in June 2004, the Issuer converted from a Delaware limited liability company
to
a Delaware limited partnership;
WHEREAS,
in October 2006, The Bank of New York Trust Company, N.A. became the Trustee
provided for in the Base Indenture as a result of the sale by The Bank of New
York Company, Inc. of its retail and regional middle market banking business
to
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & Co. in exchange for, among other things, the acquisition
of ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association;
WHEREAS,
the Issuer desires to issue a new series of Debt Securities known as the 6.20%
Senior Notes due 2017, in the principal amount of $300,000,000 (the “Senior
Notes”), the form and substance of such Senior Notes and the terms, provisions
and conditions thereof to be set forth as provided in the Base Indenture and
this Fifth Supplemental Indenture,
WHEREAS,
there is no limit on the amount of Additional Senior Notes (as defined below)
that may be issued after the initial issuance of the Initial Senior Notes (as
defined below), provided that at the time of issuance of any Additional
Senior Notes no Default or Event of Default shall have occurred and be
continuing;
WHEREAS,
on October 23, 2007, the Issuer registered the Senior Notes under the Securities
Act pursuant to the Post-Effective Amendment No. 1 to Form S-3 Registration
Statement (Registration No. 333-137998);
WHEREAS,
the Issuer wishes to amend and add certain provisions to the Base Indenture
for
the benefit of the holders of the Senior Notes; and
WHEREAS,
the Issuer has requested that the Trustee execute and deliver this Fifth
Supplemental Indenture, and all requirements necessary to make this Fifth
Supplemental Indenture a valid instrument, in accordance with its terms, and
to
make the Senior Notes, when executed by the Issuer and authenticated and
delivered by the Trustee, the valid obligations of the Issuer, have been
performed, and the execution and delivery of this Fifth Supplemental Indenture
has been duly authorized in all respects:
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NOW
THEREFORE, in consideration of the purchase and acceptance of the Senior Notes
to be issued hereunder by the holders thereof, and for the purpose of setting
forth, as provided in the Indenture, the form and substance of the Senior Notes
and the terms, provisions and conditions thereof, the Issuer covenants and
agrees with the Trustee as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.1 Definition
of Terms.
Unless
the context otherwise requires:
(a) a
term defined in the Base Indenture has the same meaning when used in this Fifth
Supplemental Indenture;
(b) a
term defined anywhere in this Fifth Supplemental Indenture has the same meaning
throughout;
(c) the
singular includes the plural and vice versa;
(d) a
reference to a Section or Article is to a Section or Article of this
Fifth Supplemental Indenture;
(e) headings
are for convenience of reference only and do not affect
interpretation;
(f) the
following terms have the meanings given to them in this
Section 1.01(f):
“Additional
Senior Notes” means any additional Senior Notes (other than Initial Senior
Notes) issued from time to time under this Fifth Supplemental Indenture in
accordance with Section 2.04 of the Base Indenture, as a part of the same series
as the Initial Senior Notes; provided, that no Additional Senior Notes
may be issued during the continuance of a Default or an Event of
Default.
“Adjusted
Consolidated Net Income” means, for any period, the net income of the Issuer and
its Consolidated Subsidiaries, plus (i) depreciation and amortization expense
of
the Issuer and its Consolidated Subsidiaries, (ii) income taxes and deferred
taxes of the Issuer and its Consolidated Subsidiaries and (iii) other non-cash
charges, in each case, determined on a consolidated basis in accordance with
generally accepted accounting principles; provided, however,
that there shall not be included in such Adjusted Consolidated Net Income any
net income of any Person if such Person is not a Subsidiary, except that (A)
the
Issuer’s equity in the net income of any such Person for such period shall be
included in such Adjusted Consolidated Net Income up to the aggregate amount
of
cash actually distributed by such Person during such period to the Issuer or
a
Consolidated Subsidiary of the Issuer as a dividend or other distribution and
(B) the Issuer’s equity in a net loss of any such Person for such period shall
be included in determining such Adjusted Consolidated Net Income.
“Capital
Stock” means any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interests in (however
designated) corporate stock or
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limited
partnership interests, including any Preferred Stock or letter stock;
provided that Hybrid Preferred Securities are not considered Capital
Stock for purposes of this definition.
“Comparable
Treasury Issue” means the United States Treasury security or securities selected
by an Independent Investment Banker as having an actual or interpolated maturity
comparable to the remaining term of the Senior Notes to be redeemed that would
be utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of a comparable
maturity to the remaining term of such Senior Notes.
“Comparable
Treasury Price” means, with respect to any redemption date, (A) the average of
the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations,
or
(B) if the Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such quotations.
“Consolidated
Debt” means the total Debt of the Issuer and its Consolidated Subsidiaries, as
set forth on the consolidated balance sheet of the Issuer and its Consolidated
Subsidiaries for the Issuer’s most recently completed fiscal quarter, prepared
in accordance with generally accepted accounting principles.
“Consolidated
Interest Expense” means, for any period, the total interest expense in respect
of Consolidated Debt of the Issuer and its Consolidated Subsidiaries, including,
without duplication, (i) interest expense attributable to capital leases, (ii)
amortization of debt discount, (iii) capitalized interest, (iv) cash and noncash
interest payments, (v) commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers’ acceptance financing, (vi) net
costs under Interest Rate Protection Agreements (including amortization of
discount), and (vii) interest expense in respect of obligations of other Persons
that constitutes Debt of the Issuer or any of its Consolidated Subsidiaries,
provided, however, that Consolidated Interest Expense shall
exclude any costs otherwise included in interest expense recognized on early
retirement of debt.
“Consolidated
Net Tangible Assets” means, at any date of determination, the total amount of
assets after deducting therefrom (i) all current liabilities (excluding (A)
any
current liabilities that by their terms are extendable or renewable at the
option of the obligor thereon to a time more than 12 months after the time
as of
which the amount thereof is being computed, and (B) current maturities of
long-term debt), and (ii) the value (net of any applicable reserves) of all
goodwill, trade names, trademarks, patents and other like intangible assets,
all
as set forth on the consolidated balance sheet of the Issuer and its
Consolidated Subsidiaries for the Issuer’s most recently completed fiscal
quarter, prepared in accordance with generally accepted accounting
principles. “Intangible assets” does not include any value write-up
of tangible assets in connection with acquisition transactions accounted for
on
a purchase method.
“Consolidated
Subsidiary” means any Subsidiary whose accounts are or are required to be
consolidated with the accounts of the Issuer in accordance with generally
accepted accounting principles.
“DTC”
means The Depository Trust Company, or any successor thereto.
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“Debt”
means any obligation created or assumed by any Person for the repayment of
money
borrowed and any purchase money obligation created or assumed by such
Person.
“Depositary”
means, with respect to the Global Notes, DTC.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Exchangeable
Stock” means any Capital Stock of a corporation or a limited liability company
that is exchangeable or convertible into another security (other than Capital
Stock of such corporation or limited liability company that is neither
Exchangeable Stock nor Redeemable Stock).
“Fixed
Charge Coverage Ratio” means the ratio of Adjusted Consolidated Net Income plus
Consolidated Interest Expense to Consolidated Interest Expense, for the four
fiscal quarters of the Issuer ending immediately prior to the date of
determination.
“Funded
Debt” means all Debt maturing one year or more from the date of the creation
thereof, all Debt directly or indirectly renewable or extendable, at the option
of the debtor, by its terms or by the terms of any instrument or agreement
relating thereto, to a date one year or more from the date of the creation
thereof, and all Debt under a revolving credit or similar agreement obligating
the lender or lenders to extend credit over a period of one year or
more.
“Global
Note” means a Senior Note evidencing all or part of a series of Senior Notes,
issued to the Depositary or its nominee with respect to such series of Senior
Notes and registered in the name of such Depositary or nominee.
“Holder”
means a Person in whose name a Senior Note is registered.
“Hybrid
Preferred Securities” means preferred securities issued by a Hybrid Preferred
Securities Subsidiary, where such preferred securities have the following
characteristics: (i) such Hybrid Preferred Securities Subsidiary lends
substantially all of the proceeds from the issuance of such preferred securities
to the Issuer in exchange for subordinated debt issued by the Issuer; (ii)
such
preferred securities contain terms providing for the deferral of distributions
corresponding to provisions providing for the deferral of interest payments
on
such subordinated debt; and (iii) the Issuer makes periodic interest payments
on
such subordinated debt, which interest payments are in turn used by the Hybrid
Preferred Securities Subsidiary to make corresponding payments to the holders
of
the Hybrid Preferred Securities.
“Hybrid
Preferred Securities Subsidiary” means any business trust or limited partnership
(or similar entity) (i) all of the common equity interest of which is owned
(either directly or indirectly through one or more wholly-owned Subsidiaries
of
the Issuer) at all times by the Issuer, (ii) that has been formed for the
purpose of issuing Hybrid Preferred Securities and (iii) substantially all
of
the assets of which consist at all times solely of subordinated debt issued
by
the Issuer and payments made from time to time on such subordinated
debt.
“Independent
Investment Banker” means any of Banc of America Securities LLC, ▇.▇. ▇▇▇▇▇▇
Securities Inc. and Wachovia Capital Markets, LLC (and their respective
successors) or, if no such firm is willing and able to select the applicable
Comparable Treasury Issue or perform
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the
other
functions of the Independent Investment Banker provided in the Indenture, an
independent investment banking institution of national standing appointed by
us
and reasonably acceptable to the Trustee.
“Initial
Senior Notes” means the initial $300,000,000 aggregate principal amount of
Senior Notes issued under this Fifth Supplemental Indenture.
“Interest
Rate Protection Agreement” means any interest rate swap agreement, interest rate
cap agreement or other financial agreement or arrangement designed to protect
the Issuer or any of its Subsidiaries against fluctuations in interest
rates.
“Leverage
Ratio” means 100% multiplied by the ratio of Consolidated Debt to Total Capital
at the end of the most recent fiscal quarter preceding the date of
determination.
“Lien”
means any mortgage, pledge, security interest, charge, lien or other encumbrance
of any kind, whether or not filed, recorded or perfected under applicable
law.
“Loan”
means any direct or indirect advance (other than advances to customers in the
ordinary course of business that are recorded as receivables on the balance
sheet of the Person making such advances), loan or other extension of credit
(including by way of guarantee or similar arrangement) to another Person or
any
purchase of Debt issued by another Person, where such advance, loan, extension
of credit or Debt is subordinated in right of payment to the senior creditors
of
the borrower.
“▇▇▇▇▇’▇”
means ▇▇▇▇▇’▇ Investors Service, Inc., and any successor thereto which is a
nationally recognized statistical rating organization, or if such entity shall
cease to rate the Senior Notes or shall cease to exist and there shall be no
such successor thereto, any other nationally recognized statistical rating
organization selected by the Issuer which is acceptable to the
Trustee.
“Non-Convertible
Capital Stock” means, with respect to any corporation or any limited liability
company, any non-convertible Capital Stock of such corporation or limited
liability company and any Capital Stock of such corporation or limited liability
company convertible solely into non-convertible Capital Stock other than
Preferred Stock of such corporation or limited liability company;
provided, however, that Non-Convertible Capital Stock shall
not include any Redeemable Stock or Exchangeable Stock.
“Permitted
Liens” means:
(i) Liens
upon rights-of-way for pipeline purposes;
(ii) any
governmental Lien, mechanics’, materialmen’s, carriers’ or similar Lien incurred
in the ordinary course of business which is not yet due or which is being
contested in good faith by appropriate proceedings and any undetermined Lien
which is incidental to construction;
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(iii) the
right reserved to, or vested in, any municipality or public authority by the
terms of any right, power, franchise, grant, license, permit or by any provision
of law, to purchase or recapture or to designate a purchaser of, any
property;
(iv) Liens
for taxes and assessments which are (A) for the then current year, (B) not
at
the time delinquent, or (C) delinquent but the validity of which is being
contested at the time by the Issuer or any of its Subsidiaries in good
faith;
(v) Liens
of, or to secure performance of, leases;
(vi) any
Lien upon, or deposits of, any assets in favor of any surety company or clerk
of
court for the purpose of obtaining indemnity or stay of judicial
proceedings;
(vii) any
Lien upon property or assets acquired or sold by the Issuer or any Restricted
Subsidiary resulting from the exercise of any rights arising out of defaults
on
receivables;
(viii) any
Lien incurred in the ordinary course of business in connection with workmen’s
compensation, unemployment insurance, temporary disability, social security,
retiree health or similar laws or regulations or to secure obligations imposed
by statute or governmental regulations;
(ix) any
Lien upon any property or assets in accordance with customary banking practice
to secure any Debt incurred by the Issuer or any Restricted Subsidiary in
connection with the exporting of goods to, or between, or the marketing of
goods
in, or the importing of goods from, foreign countries; or
(x) any
Lien in favor of the United States of America or any state thereof, or any
other
country, or any political subdivision of any of the foregoing, to secure
partial, progress, advance or other payments pursuant to any contract or
statute, or any Lien securing industrial development, pollution control or
similar revenue bonds.
“Principal
Property” means any natural gas pipeline system, natural gas gathering system or
natural gas storage facility located in the United States, except any such
property that in the opinion of the Board of Directors is not of material
importance to the business conducted by the Issuer and its Consolidated
Subsidiaries taken as a whole.
“Prospectus”
shall mean the prospectus included in the Registration Statement, including
any
preliminary prospectus, and any such prospectus as amended or supplemented
by
any prospectus supplement, including any such prospectus supplement with respect
to the terms of the offering of any portion of the Senior Notes covered by
the
Registration Statement, and by all other amendments and supplements to a
prospectus, including post-effective amendments, and in each case including
all
material incorporated by reference therein.
“Redeemable
Stock” means any Capital Stock that by its terms or otherwise is required to be
redeemed prior to the 90th day before the stated maturity of any of the
outstanding Senior Notes of any series or is redeemable at the option of the
holder thereof at any time prior to the 90th day before the stated maturity
of
any of the outstanding Senior Notes of either series.
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“Reference
Treasury Dealer” means each of Banc of America Securities LLC, ▇.▇. ▇▇▇▇▇▇
Securities Inc., and Wachovia Capital Markets, LLC (in each case, or its
affiliates and its successors); if any of the Reference Treasury Dealers resign,
the respective successor dealer shall be (1) a primary U.S. Government
Securities dealer in the City of New York (a “Primary Treasury Dealer”), and (2)
any other Primary Treasury Dealer selected by the Company.
“Reference
Treasury Dealer Quotations” means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m. New
York time on the third Business Day preceding such redemption date.
“Registration
Statement” means that certain Post-Effective Amendment No. 1 to Form S-3
Registration Statement (Registration no. 333-137998) filed with the SEC by
Issuer and Southern Union on October 23, 2007.
“Restricted
Subsidiary” means any Subsidiary of the Issuer owning or leasing any Principal
Property.
“Rule
144A” means Rule 144A under the Securities Act.
“Sale-Leaseback
Transaction” means, with respect to the Issuer or any Restricted Subsidiary, the
sale or transfer by the Issuer or such Restricted Subsidiary of any Principal
Property to a Person (other than the Issuer or a Subsidiary of the Issuer)
and
the taking back by the Issuer or such Restricted Subsidiary, as the case may
be,
of a lease of such Principal Property. With respect to the Issuer,
“Sale-Leaseback Transaction” means the sale or transfer by the Issuer of any
assets or property to another Person and the taking back by the Issuer of a
lease of such assets or property.
“SEC”
means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, as amended, or, if at any
time after the execution of this Fifth Supplemental 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.
“Securities
Act” means the Securities Act of 1933, as amended.
“Senior
Notes” has the meaning assigned to it in the recitals to this Fifth Supplemental
Indenture. The Initial Senior Notes and the Additional Senior Notes
shall be treated as a single class for all purposes under this Fifth
Supplemental Indenture, and unless the context otherwise requires, all
references to the Senior Notes shall include the Initial Senior Notes and any
Additional Senior Notes.
“Standard
& Poor’s” means Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., and any successor thereto which is a nationally recognized
statistical rating organization, or if such entity shall cease to rate the
Senior Notes or shall cease to exist and there shall be no such successor
thereto, any other nationally recognized statistical rating organization
selected by the Issuer which is acceptable to the Trustee.
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“Subsidiary”
means, with respect to any Person, (i) any corporation at least a majority
of
whose outstanding Voting Stock shall at the time be owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries or by such
Person and one or more of its Subsidiaries, (ii) any limited liability company,
general partnership, joint venture or similar entity, at least a majority of
whose outstanding membership, partnership or similar interests shall at the
time
be owned by such Person, or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries and (iii) any limited partnership
of
which such Person or any of its Subsidiaries is a general partner.
“Total
Capital” means the sum of (i) Consolidated Debt and (ii) Capital Stock, Hybrid
Preferred Securities, premium on Capital Stock, capital surplus, capital in
excess of par value and retained earnings (however the foregoing may be
designated), less, to the extent not otherwise deducted, the cost of shares
of
Capital Stock of the Issuer held in treasury, all as set forth on the
consolidated balance sheet of the Issuer and its Consolidated Subsidiaries
for
the Issuer’s most recently completed fiscal quarter, prepared in accordance with
generally accepted accounting principles.
“Treasury
Rate” means, with respect to any redemption date, the rate per annum equal to
the semiannual equivalent yield to maturity or interpolated (on a day count
basis) of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to
the
Comparable Treasury Price for such redemption date.
“Voting
Stock” means securities of any class or classes the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for corporate
directors or managers (in the case of a limited liability company) (or persons
performing similar functions).
(g) solely
for purposes of this Fifth Supplemental Indenture,
(1) the
defined term “Business Day” contained in Section 1.01 of the Base Indenture
shall be replaced in its entirety by the following new definition:
“Business
Day” means a day on which banking institutions in the Borough of Manhattan, New
York, New York are not authorized or required by law or regulation to close;
and
(2) the
defined term “Board of Directors” contained in Section 1.01 of the Base
Indenture shall be deemed to include the Board of Managers of a limited
liability company.
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GENERAL
TERMS AND CONDITIONS OF THE SENIOR NOTES
SECTION
1.2 Designation
and Principal Amount of the Senior Notes.
There
is
hereby authorized a single series of Debt Securities designated as the “6.20%
Senior Notes due 2017”, the principal amount of which shall be as set forth in
any written order of the Issuer for the authentication and delivery of Senior
Notes pursuant to Section 2.4 of the Base Indenture; provided,
however, that Additional Senior Notes may be issued by the Issuer at any
time subject to the terms and conditions of the Base Indenture and this Fifth
Supplemental Indenture, provided, that at the time of such issuance no
Default or Event of Default shall have occurred and be continuing.
The
initial principal amount of the Senior Notes shall be $300,000,000.
SECTION
1.3 Maturity
of the Senior Notes.
The
Senior Notes will mature on November 1, 2017.
SECTION
1.4 Interest
on the Senior Notes.
Interest
shall accrue from the date set forth, and shall be payable on the Senior Notes
in the amount and as otherwise set forth, in the form of such Senior Note
appearing in Article VI of this Fifth Supplemental Indenture.
SECTION
1.5 Form
of the Senior Notes.
The
form
of the Senior Notes shall be substantially in the form provided for in Article
VI. The terms of the Senior Notes form part of this Fifth
Supplemental Indenture. The Senior Notes shall be represented by one
or more Global Notes in definitive, registered form, without interest
coupons. The Senior Notes will be represented by one or more Global
Notes in definitive, registered form, without interest coupons. The
Senior Notes will be initially issued as Global Notes registered in the name
of
Cede & Co. (as nominee for DTC, New York, New York, which, together with its
nominees and their successors, is hereby designated the Depositary for the
Senior Notes).
SECTION
1.6 Redemption
of the Senior Notes.
The
Senior Notes will be redeemable as a whole or in part, at the option of the
Issuer at any time, at a redemption price equal to the greater of (i) 100%
of
the principal amount of such Senior Notes and (ii) the sum of the present values
of the remaining scheduled payments of principal and interest thereon (exclusive
of interest accrued to the date of redemption) discounted to the redemption
date
on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 30 basis points, plus, in either case, accrued
and unpaid interest thereon to the date of redemption.
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Notice
of
any redemption will be mailed at least 30 days but not more than 60 days
before the redemption date by the Issuer or by the Trustee on the Issuer’s
behalf to each Holder of Senior Notes to be redeemed.
Unless
the Issuer defaults in payment of the redemption price, on and after the
applicable redemption date interest will cease to accrue on the Senior Notes
or
portions thereof called for redemption.
ARTICLE
II
COVENANTS
SECTION
2.1 Limitation
on Restricted Payments.
(a) So
long as any of the Senior Notes are outstanding and during any time that such
Senior Notes are rated below Baa3 (or an equivalent rating) by Moody’s and below
BBB- (or an equivalent rating) by Standard & Poor’s, the Issuer will not,
and will not permit any of its Restricted Subsidiaries, directly or indirectly,
to:
(i) declare
or pay any dividend or make any distribution on the Capital Stock of the Issuer
to the direct or indirect holders of its Capital Stock (except dividends or
distributions payable solely in its Non-Convertible Capital Stock or in options,
warrants or other rights to purchase such Non-Convertible Capital Stock and
except dividends or distributions payable to the Issuer or a Subsidiary of
the
Issuer);
(ii) purchase,
redeem or otherwise acquire or retire for value any Capital Stock of the Issuer;
or
(iii) make
any Loan to Southern Union or any of its Affiliates that is not a Subsidiary
of
the Issuer;
(iv) (any
such dividend, distribution, purchase, redemption, other acquisition, retirement
or Loan described in (i) through (iii) above being hereinafter referred to
as a
“Restricted Payment”), unless at the time the Issuer or such Restricted
Subsidiary makes such Restricted Payment and after giving effect
thereto:
(1) no
Default or Event of Default shall have occurred and be continuing (or would
result therefrom);
(2) the
Issuer’s Fixed Charge Coverage Ratio is greater than or equal to 2.2;
and
(3) the
Issuer’s Leverage Ratio is less than or equal to 55%.
Notwithstanding
the foregoing, the Issuer or any of its Restricted Subsidiaries may declare,
make or pay any Restricted Payment, if at the time the Issuer or such Restricted
Subsidiary makes such Restricted Payment and after giving effect
thereto:
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(1) no
Default or Event of Default shall have occurred and be continuing (or would
result therefrom); and
(2) the
aggregate amount of such Restricted Payment and all other Restricted Payments
made since the original date of issuance of the Initial Senior Notes would
not
exceed the sum of:
(A) $175
million;
(B) 75%
of Adjusted Consolidated Net Income accumulated since the original date of
issuance of the Initial Senior Notes to the end of the most recent fiscal
quarter ending at least 45 days prior to the date of such Restricted Payment;
and
(C) the
aggregate net cash proceeds received by the Issuer after the original date
of
issuance of the Initial Senior Notes from capital contributions or the issuance
of Capital Stock of the Issuer to a Person who is not a Subsidiary of the
Issuer, or from the issuance to such a Person of options, warrants or other
rights to acquire such Capital Stock of the Issuer.
None
of
the foregoing provisions will prohibit:
(i) dividends
or other distributions paid in respect of any class of Capital Stock issued
by
the Issuer in connection with the acquisition of any business or assets by
the
Issuer or a Restricted Subsidiary where the dividends or other distributions
with respect to such Capital Stock are payable solely from the net earnings
of
such business or assets;
(ii) any
purchase or redemption of Capital Stock of the Issuer made by exchange for,
or
out of the proceeds of the substantially concurrent sale of, Non-Convertible
Capital Stock of the Issuer; or
(iii) dividends
paid within 60 days after the date of declaration thereof if at such date of
declaration such dividends would have complied with this covenant.
SECTION
2.2 Limitation
on Liens.
(a) The
Issuer shall not, nor will it permit any Restricted Subsidiary to, create,
assume, incur or suffer to exist any Lien upon any Principal Property, whether
owned or leased on the date of the Indenture or thereafter acquired, to secure
any Debt of the Issuer or any other Person (other than the Senior Notes),
without in any such case making effective provision whereby all of the Senior
Notes outstanding shall be secured equally and ratably with, or prior to, such
Debt so long as such Debt shall be so secured. There is excluded from
this restriction:
(i) any
Lien upon any property or assets of the Issuer or any Restricted Subsidiary
in
existence on the date of the Indenture or created pursuant to an “after-acquired
property” clause or similar term in existence on the date of the
Indenture
(ii) or
any mortgage, pledge agreement, security agreement or other similar instrument
in existence on the date of the Indenture;
(iii) any
Lien upon any property or assets created at the time of acquisition of such
property or assets by the Issuer or any Restricted Subsidiary or within 18
months after such time to secure all or a portion of the purchase price for
such
property or assets or Debt incurred to finance such purchase price, whether
such
Debt was incurred prior to, at the time of or within 18 months of such
acquisition;
(iv) any
Lien upon any property or assets existing thereon at the time of the acquisition
thereof by the Issuer or any Restricted Subsidiary (whether or not the
obligations secured thereby are assumed by the Issuer or any Restricted
Subsidiary);
(v) any
Lien upon any property or assets of a Person existing thereon at the time such
Person becomes a Restricted Subsidiary by acquisition, merger or otherwise
(whether or not such Lien was created in anticipation of such
acquisition);
(vi) any
Lien securing obligations assumed by the Issuer or any Restricted Subsidiary
existing at the time of the acquisition by the Issuer or any Restricted
Subsidiary of the property or assets subject to such Lien or at the time of
the
acquisition of the Person which owns such property or assets;
(vii) any
Lien on property to secure all or part of the cost of construction or
improvements thereon or to secure Debt incurred prior to, at the time of, or
within 18 months after completion of such construction or making of such
improvements, to provide funds for any such purpose;
(viii) any
Lien in favor of the Issuer or any Restricted Subsidiary;
(ix) any
Lien created or assumed by the Issuer or any Restricted Subsidiary in connection
with the issuance of Debt the interest on which is excludable from gross income
of the holder of such Debt pursuant to the Internal Revenue Code of 1986, as
amended, or any successor statute, for the purpose of financing, in whole or
in
part, the acquisition or construction of property or assets to be used by the
Issuer or any Subsidiary;
(x) any
Lien upon property or assets of any foreign Restricted Subsidiary to secure
Debt
of that foreign Restricted Subsidiary;
(xi) Permitted
Liens;
(xii) any
Lien created by any program providing for the financing, sale or other
disposition of trade or other receivables classified as current assets in
accordance with United States generally accepted accounting principles entered
into by the Issuer or by a Subsidiary of the Issuer, provided that such
program is on terms customary for similar transactions, or any document executed
by any Subsidiary of the Issuer in connection therewith, provided that
such Lien is limited to the trade or other receivables in respect of which
such
program is created or exists, and the proceeds thereof;
(xiii) any
Lien upon any additions, improvements, replacements, repairs, fixtures,
appurtenances or component parts thereof attaching to or required to be attached
to property or assets pursuant to the terms of any mortgage, pledge agreement,
security agreement or other similar instrument, creating a Lien upon such
property or assets permitted by clauses (i) through (xi), inclusive, above;
or
(xiv) any
extension, renewal, refinancing, refunding or replacement (or successive
extensions, renewals, refinancing, refundings or replacements) of any Lien,
in
whole or in part, that is referred to in clauses (i) through (vi), inclusive,
above (and Liens related thereto referred to in clause (xii) above), or of
any
Debt secured thereby; provided, however, that the principal
amount of Debt secured thereby shall not exceed the greater of the principal
amount of Debt so secured at the time of such extension, renewal, refinancing,
refunding or replacement and the original principal amount of Debt so secured
(plus in each case the aggregate amount of premiums, other payments, costs
and
expenses paid or incurred in connection with such extension, renewal,
refinancing, refunding or replacement); providedfurther,
however, that such extension, renewal, refinancing,
refunding or
replacement shall be limited to all or a part of the property (including
improvements, alterations and repairs on such property) subject to the
encumbrance so extended, renewed, refinanced, refunded or replaced (plus
improvements, alterations and repairs on such property).
Notwithstanding
the foregoing, the Issuer may, and may permit any Restricted Subsidiary to,
create, assume, incur, or suffer to exist any Lien upon any Principal Property
to secure Debt of the Issuer or any other Person (other than the Senior Notes)
that is not otherwise excepted by clauses (i) through (viii), inclusive, above
without securing the Senior Notes, provided that the aggregate
principal amount of all Debt then outstanding secured by such Lien and all
similar Liens, together with all net sale proceeds from Sale-Leaseback
Transactions (excluding Sale-Leaseback Transactions permitted by clauses (i)
through (iv), inclusive, of Section 3.3(a) of this Fifth Supplemental
Indenture) does not exceed the greater of 15% of Consolidated Net Tangible
Assets or 15% of Total Capital.
SECTION
2.3 Restriction
on Sale-Leasebacks.
(a) The
Issuer shall not, nor shall it permit any Restricted Subsidiary to, engage
in a
Sale-Leaseback Transaction, unless:
(i) the
Sale-Leaseback Transaction occurs within 18 months from the date of acquisition
of the Principal Property subject thereto or the date of the completion of
construction or commencement of full operations on such Principal Property,
whichever is later;
(ii) the
Sale-Leaseback Transaction involves a lease for a period, including renewals,
of
not more than four years;
(iii) the
Issuer or such Restricted Subsidiary would be entitled to incur Debt secured
by
a Lien on the Principal Property subject thereto (pursuant to clauses (i)
through (xiii), inclusive, of the first paragraph of Section 3.2(a) of this
Fifth
(iv) Supplemental
Indenture) in a principal amount equal to or exceeding the net sale proceeds
from the Sale-Leaseback Transaction without securing the Senior Notes;
or
(v) the
Issuer or such Restricted Subsidiary, within an 18-month period after such
Sale-Leaseback Transaction, applies or causes to be applied an amount not less
than the net sale proceeds from such Sale-Leaseback Transaction to (A) the
repayment, redemption or retirement of Funded Debt of the Issuer or any
Subsidiary of the Issuer, or (B) investment in another Principal Property or
in
a Subsidiary of the Issuer which owns another Principal Property.
Notwithstanding
the foregoing, the Issuer may, and may permit any Restricted Subsidiary to,
effect any Sale-Leaseback Transaction that is not otherwise excepted by clauses
(i) through (iv), inclusive, above, provided that the net sale proceeds
from such Sale-Leaseback Transaction, together with the aggregate principal
amount of outstanding Debt (other than the Senior Notes) secured by Liens upon
any Principal Properties not excepted by clauses (i) through (xiii), inclusive,
of Section 3.2(a) of this Fifth Supplemental Indenture, do not exceed the
greater of 15% of Consolidated Net Tangible Assets or 15% of Total
Capital.
SECTION
2.4 Financial
Information.
Whether
or not required by the SEC’s rules and regulations, so long as any Senior Notes
are outstanding, the Issuer shall furnish to the Holders of the Senior Notes,
within the time periods specified in the SEC’s rules and
regulations:
|
|
(1)
|
all
quarterly and annual reports that would be required to be filed with
the
SEC on Forms 10-Q and 10-K if the Issuer was required to file such
reports; and
|
|
|
(2)
|
all
current reports that would be required to be filed with the SEC on
Form
8-K if the Issuer was required to file such
reports.
|
The
Issuer will prepare all such reports in all material respects in accordance
with
all applicable rules and regulations. The Issuer will include in each
annual report on Form 10-K a report on its consolidated financial statements
by
its certified independent public accountant. In addition, whether or not
required by the SEC, the Issuer shall file a copy of each of the reports
referred to in clauses (1) and (2) above with the SEC for public availability
within the time periods specified in the SEC’s applicable rules and regulations
(unless the SEC will not accept such a filing) and make that information
available to securities analysts and prospective investors upon
request.
The
Issuer is currently required under the Exchange Act to file reports with the
SEC. If the Issuer is no longer subject to the periodic reporting
requirements of the Exchange Act for any reason, the Issuer will nevertheless
continue filing the reports specified in the preceding paragraphs with the
SEC
within the time periods specified above unless the SEC will not accept such
a
filing. The Issuer agrees not to take any action for the purpose of
causing the SEC not to accept any such filings. If, notwithstanding
the foregoing, the SEC will not accept the Issuer’s filings for any reason, the
Issuer will post the reports referred to in this Section 3.4
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on
the
website ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ within the time periods that would apply if
the
Issuer was required to file those reports with the SEC.
For
so
long as any Senior Notes remain outstanding, at any time the Issuer is not
required to file the reports required by this Section 3.4 with the SEC, the
Issuer shall furnish at the Issuer’s cost to the Holders and to securities
analysts and prospective investors, upon their request, the information required
to be delivered pursuant to Rule 144A(d)(4) under the Securities
Act.
SECTION
2.5 Applicability
of Covenants.
Unless
otherwise stated herein, the foregoing covenants contained in this
Article III shall only be in effect so long as any of the Senior Notes are
outstanding.
ARTICLE
III
DEFAULT
SECTION
3.1 General.
All
of
the events specified in paragraphs (1) through (6) in Section 6.01(a) of
the Base Indenture shall be “Events of Default” with respect to the Senior
Notes.
SECTION
3.2 Additional
Event of Default.
The
following event shall be an “Event of Default” with respect to the Senior Notes:
as a result of any action taken by the Issuer or its direct or indirect equity
holders, there is a change in the Issuer’s federal income tax status or a change
in the deemed issuer of the indebtedness evidenced by the Senior Notes for
federal income tax purposes, unless (i) Holders of more than 50% in
principal amount of the Senior Notes consent to such change or
(ii) (a) the Issuer certifies to the Trustee that it has received a
ruling from the Internal Revenue Service or (b) the Issuer delivers to the
Trustee an opinion of nationally recognized independent counsel reasonably
acceptable in form and substance to the Trustee, in either case to the effect
that the Holders of the Senior Notes will not recognize income, gain or loss
for
federal income tax purposes as a result of the change and that such Holders
will
be subject to federal income tax on the same amounts, in the same manner and
at
the same times as would have been the case if the change had not
occurred.
ARTICLE
IV
DEFEASANCE
SECTION
4.1 General.
All
of
the provisions of Article XI of the Base Indenture shall be applicable to the
Senior Notes.
SECTION
4.2 Covenant
Defeasance.
SECTION
4.3 With
respect to and pursuant to the terms of Section 11.02(b) of the Base
Indenture, the release of covenant obligations provided for therein shall,
with
respect to the Senior Notes, also apply to Section 3.1, Section 3.2,
and Section 3.3 of this Fifth Supplemental Indenture.
ARTICLE
V
FORM
OF SENIOR NOTES
SECTION
5.1 Form
of Senior Notes.
The
Senior Notes, and the Trustee’s Certificate of Authentication to be endorsed
thereon, are to be substantially in the following forms:
[FORM
OF
FACE OF SENIOR NOTES DUE 2017]
This
Senior Note is a Global Note within the meaning of the Indenture hereinafter
referred to and is registered in the name of the Depositary or a nominee of
the
Depositary. This Senior Note is exchangeable for Senior Notes
registered in the name of a person other than the Depositary or its nominee
only
in the limited circumstances described in the Indenture, and may not be
transferred except as a whole by the Depositary to a nominee of the Depositary,
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 a successor Depositary.
Unless
this certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation (“DTC”), to the Issuer or its agent
for registration of transfer, exchange or payment, and any certificate issued
is
registered in the name of Cede & Co. or such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized representative of
DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.
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CUSIP
No. 698455
AA0 $[ ]
Panhandle
Eastern Pipe Line Company, LP
6.20%
SENIOR NOTE DUE 2017
PANHANDLE
EASTERN PIPE LINE COMPANY, LP, a Delaware limited partnership (the “Issuer”),
for value received, hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of [AMOUNT IN WORDS] Dollars
($[ ]) on November 1, 2017 (“Maturity”)
and to pay interest thereon from October 26, 2007 (the “Original Issue Date”) or
from the most recent interest payment date (each such date, an “Interest Payment
Date”) to which interest has been paid or duly provided for, semi-annually in
arrears on May 1st and November
1st
in each year, commencing May 1, 2008, to the registered holders thereof on
the
preceding April 15 and October 15, respectively, and at Maturity at the rate
of
6.20% per annum, until the principal hereof shall have become due and payable,
and on any overdue principal and premium, if any, and (without duplication
and
to the extent that payment of such interest is enforceable under applicable
law)
on any overdue installment of interest at the same rate per
annum. The amount of interest payable on any Interest Payment Date
shall be computed on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on
this Senior Note is not a Business Day, then payment of interest payable on
such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with
the
same force and effect as if made on such date. The interest installment so
payable, and punctually paid or duly provided for, on any Interest Payment
Date
will, as provided in the Indenture, be paid to the person in whose name this
Senior Note (or one or more Predecessor Securities, as defined in said
Indenture) is registered at the close of business on the regular record date
for
such interest installment which shall be the close of business on the 1st day of
the
calendar month in which such Interest Payment Date occurs. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the registered holders on such regular record date,
and
may be paid to the person in whose name this Senior Note (or one or more
Predecessor Securities) is registered at the close of business on a special
record date to be fixed by the Trustee (as defined below) for the payment of
such defaulted interest, notice whereof shall be given to the registered holders
of this series of Senior Notes not less than 10 days prior to such special
record date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Senior Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The principal
of (and premium, if any) and the interest on this Senior Note shall be payable
at the office or agency of the Trustee maintained for that purpose in any coin
or currency of the United States of America which at the time of payment is
legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of
the
Issuer by check mailed to the registered holder at such address as shall appear
in the Security Register.
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This
Senior Note shall not be entitled to any benefit under the Indenture hereinafter
referred to, be valid or become obligatory for any purpose until the Certificate
of Authentication hereon shall have been signed by or on behalf of the
Trustee.
The
provisions of this Senior Note are continued on the reverse side hereof and
such
continued provisions shall for all purposes have the same effect as though
fully
set forth at this place.
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IN
WITNESS WHEREOF, the Issuer has caused this instrument to be
executed.
Dated
[ ]
PANHANDLE
EASTERN PIPE LINE COMPANY, LP
By _______________
Name: _______________
Title: _______________
Attest:
By: ____________
Name: ____________
Title: ____________
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[FORM
CERTIFICATE OF AUTHENTICATION]
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Senior Notes of the series of Senior Notes described in the
within-mentioned Indenture.
THE
BANK
OF NEW YORK TRUST COMPANY, N.A., as Trustee
By______________________
[Authorized
Signatory]
[FORM
OF
REVERSE OF SENIOR NOTE]
REVERSE
OF SENIOR NOTE
This
Senior Note is one of a duly authorized series of Securities of the Issuer
(herein sometimes referred to as the “Senior Notes”), specified in the
Indenture, issued or to be issued in one or more series under and pursuant
to an
indenture (the “Base Indenture”) dated as of March 29, 1999 among the Issuer,
CMS Panhandle Holding Company, a Michigan corporation (which has merged into
the
Issuer), and NBD Bank, as trustee (predecessor to The Bank of New York Trust
Company, N.A.), further supplemented by the Fifth Supplemental Indenture dated
as of October 26, 2007 between the Issuer and The Bank of New York Trust
Company, N.A., as trustee (the “Trustee”) (the Base Indenture as so
supplemented, hereinafter being referred to as the “Indenture”), to which
Indenture and all indentures supplemental thereto reference is hereby made
for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Issuer and the holders of the Senior
Notes. By the terms of the Indenture, the Senior Notes are issuable
in series which may vary as to amount, date of maturity, rate of interest and
in
other respects as in the Indenture provided. This series of Senior
Notes is not limited in aggregate principal amount, as specified in said Fifth
Supplemental Indenture.
The
Senior Notes are redeemable at the option of the Issuer at any time and from
time to time, in whole or in part, upon not less than 30 days nor more than
60
days notice to each holder of such Senior Notes, at a redemption price equal
to
the greater of (i) 100% of the principal amount of such Senior Notes to be
redeemed and (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon (exclusive of interest accrued to
the
date of redemption) discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 30 basis points, plus, in either case, accrued and unpaid interest
thereon to the date of redemption. Unless there is a default in the
payment of the redemption price, on and after the applicable redemption date,
interest will cease to accrue on the Senior Notes or portions thereof called
for
redemption.
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“Comparable
Treasury Issue” means the United States Treasury security or securities selected
by an Independent Investment Banker as having an actual or interpolated maturity
comparable to the remaining term of the Senior Notes to be redeemed that would
be utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of a comparable
maturity to the remaining term of such Senior Notes.
“Comparable
Treasury Price” means, with respect to any redemption date, (A) the average of
the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations,
or
(B) if the Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such quotations.
“Independent
Investment Banker” means any of Banc of America Securities LLC, ▇.▇. ▇▇▇▇▇▇
Securities Inc. and Wachovia Capital Markets, LLC (and their respective
successors) or, if no such firm is willing and able to select the applicable
Comparable Treasury Issue or perform the other functions of the Independent
Investment Banker provided in the Indenture, an independent investment banking
institution of national standing appointed by us and reasonably acceptable
to
the Trustee.
“Reference
Treasury Dealer” means each of Banc of America Securities LLC, ▇.▇. ▇▇▇▇▇▇
Securities Inc., and Wachovia Capital Markets, LLC (in each case, or its
affiliates and its successors); if any of the Reference Treasury Dealers resign,
the respective successor dealer shall be (1) a primary U.S. Government
Securities dealer in the City of New York (a “Primary Treasury Dealer”), and (2)
any other Primary Treasury Dealer selected by the Company.
“Reference
Treasury Dealer Quotations” means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m. New
York time on the third Business Day preceding such redemption date.
“Treasury
Rate” means, with respect to any redemption date, the rate per annum equal to
the semiannual equivalent yield to maturity or interpolated (on a day count
basis) of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to
the
Comparable Treasury Price for such redemption date.
The
Issuer may purchase the Senior Notes in the open market, by tender or
otherwise. Senior Notes so purchased may be held, resold or
surrendered to the Trustee for cancellation. If applicable, the
Issuer will comply with the requirements of Rule 14e-1 under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and other securities laws
and regulations in connection with any such purchase.
No
sinking fund is provided for the Senior Notes.
If
an
Event of Default with respect to this Senior Note shall occur and be continuing,
the principal of this Senior Note may be declared due and payable in the manner
and with the effect provided in the Indenture.
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The
Indenture contains provisions for defeasance at any time of (i) the entire
indebtedness of this Senior Note or (ii) certain restrictive covenants and
certain other obligations with respect to this Senior Note, in each case upon
compliance with certain conditions set forth therein.
The
Indenture permits, with certain exceptions as therein provided, modifications
and amendments of the Indenture by the Issuer and the Trustee with the consent
of the holders of a majority in aggregate principal amount of the outstanding
Senior Notes.
The
Indenture provides that the holders of a majority in aggregate principal amount
of the outstanding Senior Notes may, on behalf of the holders of all Senior
Notes, modify or eliminate restrictive covenants, which right includes the
right
to waive insofar as the Senior Notes are concerned, compliance by the Issuer
with certain restrictive provisions of the Indenture.
The
Indenture provides that the holders of a majority in aggregate principal amount
of the outstanding Senior Notes may, on behalf of all holders of Senior Notes,
waive any past default under the Indenture with respect to any Senior Notes,
except a default (i) in the payment of principal of, or premium, if any, or
any
interest on any Senior Note; or (ii) in respect of a covenant or provision
of
the Indenture which cannot be modified or amended without the consent of the
holder of each outstanding Senior Note affected.
The
Indenture provides that, subject to the duty of the Trustee during default
to
act with the required standard of care, the Trustee will be under no obligation
to exercise any of its rights or powers under the Indenture at the request
or
direction of any of the holders, unless such holders shall have offered to
the
Trustee reasonable indemnity. Subject to such provisions for the
indemnification of the Trustee, the holders of a majority in aggregate principal
amount of the outstanding Senior Notes 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
Senior Notes; provided, however, that the Trustee shall not be
obligated to take any action unduly prejudicial to holders not joining in such
direction or involving the Trustee in personal liability.
No
reference herein to the Indenture and no provision of this Senior Note or of
the
Indenture shall alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and any premium and interest on
this
Senior Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As
provided in the Indenture and subject to certain limitations therein and herein
set forth, the transfer of this Senior Note is registrable in the Security
Register, upon surrender of this Senior Note for registration of transfer at
the
office or agency of the Issuer in any place where the principal of and any
premium and interest on this Senior Note are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Security Registrar duly executed by, the holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Senior Notes
of this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
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The
Senior Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Senior Notes are exchangeable for a like aggregate principal amount of Senior
Notes and of like tenor of a different authorized denomination, as requested
by
the holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Issuer may require payment of a sum sufficient to cover any tax or
other
governmental charge payable in connection therewith.
The
Issuer shall not be required to (a) issue, exchange or register the transfer
of
this Senior Note for a period of 15 days next preceding the mailing of the
notice of redemption of Senior Notes or (b) exchange or register the transfer
of
any Senior Note or any portion thereof selected, called or being called for
redemption, except in the case of any Senior Note to be redeemed in part, the
portion thereof not so to be redeemed.
Prior
to
due presentment of this Senior Note for registration of transfer, the Issuer,
the Trustee and any agent of the Issuer or the Trustee may treat the Person
in
whose name this Senior Note is registered as the owner hereof for all purposes,
whether or not this Senior Note be overdue, and neither the Issuer, the Trustee
nor any such agent shall be affected by notice to the contrary.
No
recourse shall be had for the payment of the principal of or the interest on
this Senior Note, or for any claim based hereon, or otherwise in respect hereof,
or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Issuer or of any predecessor or successor corporation, whether by virtue of
any
constitution, statute or rule of law, or by the enforcement of any assessment
or
penalty or otherwise, all such liability being, by the acceptance hereof and
as
part of the consideration for the issuance hereof, expressly waived and
released.
All
terms
used in this Senior Note which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
CERTIFICATE
OF TRANSFER
FOR
VALUE
RECEIVED, THE UNDERSIGNED HEREBY SELL(S), ASSIGN(S) AND TRANSFER(S) UNTO
____________________
______________________
______________________
______________________
______________________
(Please
print or typewrite name and address including postal zip code, of
assignee)
_______________________
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(PLEASE
INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE)
____________________________
the
within Senior Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
__________________
__________________
to
transfer said Senior Note on the books of the Issuer, with full power of
substitution in the premises.
Dated:___________________ ______________________]
[Name of Assignor]
ARTICLE
VI
ISSUANCE
OF SENIOR NOTES
SECTION
6.1 Original
Issue of Senior Notes.
Upon
execution of this Fifth Supplemental Indenture, the Senior Notes in the initial
principal amount of $300,000,000 may be executed by the Issuer. Such
Senior Notes may be delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Senior Notes to or upon the
written order of the Issuer, signed by its Chairman, President or any Vice
President and its Secretary or an Assistant Secretary, without any further
action by the Issuer.
SECTION
6.2 Additional
Senior Notes.
Upon
execution of this Fifth Supplemental Indenture, subject to Section 2.1
hereof, Additional Senior Notes may be executed by the Issuer. Such
Additional Senior Notes may be delivered to the Trustee for authentication,
and
the Trustee shall thereupon authenticate and deliver said Additional Senior
Notes to or upon the written order of the Issuer, signed by its Chairman,
President or any Vice President and its Secretary or an Assistant Secretary,
without any further action by the Issuer.
ARTICLE
VII
MISCELLANEOUS
SECTION
7.1 Consent,
Amendment and Waiver.
For
purposes of Article VI and Article IX of the Base Indenture, it is understood
that the covenants and Events of Default included in this Fifth Supplemental
Indenture have been included solely for the benefit of the holders of the Senior
Notes and therefore any consent, amendment or waiver thereof shall require
the
consent of a majority in aggregate principal
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amount
of
the outstanding Senior Notes voting as a separate class or the consent of the
holders of each outstanding Senior Note, as the case may be.
SECTION
7.2 Ratification
of Indenture.
The
Base
Indenture, as supplemented by this Fifth Supplemental Indenture, is in all
respects ratified and confirmed, and this Fifth Supplemental Indenture shall
be
deemed part of the Indenture in the manner and to the extent herein and therein
provided. The provisions of this Fifth Supplemental Indenture shall
supersede the provisions of the Indenture to the extent the Indenture is
inconsistent herewith.
SECTION
7.3 Trustee
Not Responsible for Recitals.
The
recitals herein contained are made by the Issuer and not by the Trustee, and
the
Trustee assumes no responsibility for the correctness thereof. The Trustee
makes
no representation as to the validity or sufficiency of this Fifth Supplemental
Indenture.
SECTION
7.4 Governing
Law.
This
Fifth Supplemental Indenture and each Senior Note shall be deemed to be a
contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said
State.
SECTION
7.5 Separability.
In
case
any one or more of the provisions contained in this Fifth Supplemental Indenture
or in the Senior Notes shall for any reason be held to be invalid, illegal
or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Fifth Supplemental Indenture
or of
the Senior Notes, but this Fifth Supplemental Indenture and the Senior Notes
shall be construed as if such invalid or illegal or unenforceable provision
had
never been contained herein or therein.
SECTION
7.6 Counterparts.
This
Fifth Supplemental 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.
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IN
WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed as of the day and year first above
written.
PANHANDLE
EASTERN PIPE LINE COMPANY, LP,
as
Issuer
By: /s/
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title:Senior
Vice President and
Chief
Financial Officer
THE
BANK
OF NEW YORK TRUST COMPANY,
as
Trustee
By: /s/
▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇
Title: Assistant
Treasurer
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