Second Supplemental Indenture between Southern Union Company and The Bank of New York Trust Company, N.A., successor to JPMorgan Chase Bank, N.A., formerly known as JPMorgan Chase Bank, formerly known as The Chase Manhattan Bank (National...
Exhibit 4.1
Second
Supplemental
between
Southern
Union Company
and
The
Bank of New York Trust Company, N.A., successor to JPMorgan Chase Bank, N.A.,
formerly known as JPMorgan Chase Bank,
formerly
known as The Chase Manhattan Bank (National Association), as
Trustee
Dated
as of October 23, 2006
2006
Series A Junior Subordinated
Notes
Due November 1, 2066
-NY12533:207075.9
ARTICLE
I
DEFINITIONS
SECTION
1.1. Definition
of Terms
ARTICLE
II
GENERAL
TERMS AND CONDITIONS OF THE NOTES
SECTION
2.1. Designation
and Principal Amount
SECTION
2.2. Maturity
SECTION
2.3. Form
and
Payment
SECTION
2.4. Exchange
and Registration of Transfer of Notes; Restrictions on Transfers;
Depositary
SECTION
2.5. Interest
SECTION
2.6. Event
of
Default
ARTICLE
III
REDEMPTION
OF THE NOTES
SECTION
3.1. Special
Event Redemption
SECTION
3.2. Optional
Redemption by Company
SECTION
3.3. Notice
of
Redemption
SECTION
3.4. No
Sinking Fund
ARTICLE
IV
OPTION
TO
DEFER INTEREST PAYMENTS
SECTION
4.1. Option
to
Defer Interest Payments
SECTION
4.2. Notice
of
Deferral
ARTICLE
V
EXPENSES
SECTION
5.1. Payment
of Expenses
SECTION
5.2. Payment
upon Resignation or Removal
i
ARTICLE
VI
SUBORDINATION
SECTION
6.1. Agreement
to Subordinate
SECTION
6.2. Default
on Senior Indebtedness
SECTION
6.3. Liquidation;
Dissolution; Bankruptcy
SECTION
6.4. Subrogation
SECTION
6.5. Trustee
to Effectuate Subordination
SECTION
6.6. Notice
by
the Company
SECTION
6.7. Rights
of
the Trustee; Holders of Senior Indebtedness
SECTION
6.8. Subordination
May Not Be Impaired
ARTICLE
VII
FORM
OF
NOTE
SECTION
7.1. Form
of
Note
ARTICLE
VIII
ORIGINAL
ISSUE OF NOTES
SECTION
8.1. Original
Issue of Notes
ARTICLE
IX
MISCELLANEOUS
SECTION
9.2. Trustee
Not Responsible for Recitals
SECTION
9.3. Governing
Law
SECTION
9.4. Separability
SECTION
9.5. Counterparts
ii
-NY12533:207075.9
SECOND
SUPPLEMENTAL INDENTURE, dated as of October 23, 2006 (the “Second
Supplemental Indenture”), between Southern Union Company, a Delaware corporation
(the “Company”), and The Bank of New York Trust Company, N.A., successor to ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ Bank, N.A., formerly known as JPMorgan Chase Bank, formerly known
as The Chase Manhattan Bank (National Association), as trustee (the “Trustee”)
under the Indenture dated as of May 10, 1995, between the Company and the
Trustee (the “Base Indenture” and, together with this Second Supplemental
Indenture, the “Indenture”).
WHEREAS,
the Company executed and delivered the Base Indenture to the Trustee to provide
for the future issuance of the Company’s unsecured subordinated debt securities
to be issued from time to time in one or more series as might be determined
by
the Company under the Base Indenture, in an unlimited aggregate principal
amount, which may be authenticated and delivered as provided in the Base
Indenture;
WHEREAS,
pursuant to the terms of the Base Indenture, the Company desires to provide
for
the establishment of a new series of its Securities to be known as its 7.20%
2006 Series A Junior Subordinated Notes due 2066 (the “Notes”), the form
and substance of such Notes and the terms, provisions and conditions thereof
to
be set forth as provided in the Base Indenture and this Second Supplemental
Indenture;
WHEREAS,
the Company desires that this series of Notes be duly issued on October 23,
2006, pursuant to the Indenture and sold pursuant to the Underwriting Agreement
(as defined below);
WHEREAS,
the Company has offered to the purchasers (the “Underwriters”) named in
Schedule I to the Underwriting Agreement, dated October 18, 2006 (the
“Underwriting Agreement”), between the Underwriters and the Company $600,000,000
aggregate principal amount of its Notes; and
WHEREAS,
the Company has requested that the Trustee execute and deliver this Second
Supplemental Indenture, all requirements necessary to make this Second
Supplemental Indenture a valid instrument in accordance with its terms and
to
make the Notes, when executed by the Company and authenticated and delivered
by
the Trustee, the valid obligations of the Company have been satisfied, and
the
execution and delivery of this Second Supplemental Indenture has been duly
authorized in all respects:
NOW
THEREFORE, in consideration of the purchase and acceptance of the Notes by
the
Holders thereof, and for the purpose of setting forth, as provided in the Base
Indenture, the form and substance of the Notes and the terms, provisions and
conditions thereof, the Company 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 Second
Supplemental Indenture;
(b) a
term
defined anywhere in this Second Supplemental Indenture has the same meaning
throughout this Second Supplemental Indenture;
(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
Second Supplemental Indenture;
(e) headings
are for convenience of reference only and do not affect
interpretation;
(f) terms
used herein that are defined in the Trust Indenture Act, whether directly or
by
reference therein, have the meanings assigned to them therein;
(g) the
words
“herein,” “hereof” and “hereunder” and other words of similar import refer to
this Second Supplemental Indenture as a whole and not to any particular Article,
Section or other subdivision; and
(h) the
following terms have the meanings given to them in this
Section 1.1(h):
“Additional
Interest” has the meaning specified in Section 2.5(a).
“Calculation
Agent” means The Bank of New York Trust Company, N.A., or its successor
appointed by the Company, acting as calculation agent.
“Change
of Control” has the meaning specified in the definition of Change of Control
Event.
“Change
of Control Event” means the earliest date on which both of the following events
have occurred: (i) any person or persons acting in concert or on behalf of
any person(s) is or becomes the beneficial owner, directly or indirectly, of
more than 50% of the capital stock of the Company then outstanding and normally
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors (whether or not any necessary approvals therefore have
been obtained) (a “Change of Control”); and (ii) within 90 days after
public notice of the occurrence of a Change of Control (which period will be
extended so long as any rating is under publicly announced consideration of
possible downgrade by any of the Rating Agencies), any Rating Agency publicly
announces that in connection with, in anticipation of or as a result of, a
Change of Control occurring, the corporate credit rating of
2
the
Company by such Rating Agency is withdrawn or downgraded to a rating of or
below
BBB- by S&P, Ba1 by Moody’s or BBB- by Fitch.
“Comparable
Treasury Issue” means, with respect to any redemption date, the United States
Treasury security selected by the Quotation Agent as having a maturity
comparable to the time period from the redemption date to November 1, 2011
that
would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities with
a
term to maturity comparable to such time period. If no United States Treasury
security has a maturity which is within a period from three months before to
three months after November 1, 2011, the two most closely corresponding United
States Treasury securities shall be used as the Comparable Treasury Issue,
and
the Treasury Rate shall be interpolated or extrapolated on a straight-line
basis, rounding to the nearest month using such securities.
“Comparable
Treasury Price” means, with respect to any redemption date, (i) the
average, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, of up to five Reference Treasury Dealer Quotations for such
redemption date, or (ii) if the Quotation Agent obtains fewer than five
such Reference Treasury Dealer Quotations, the average of all such
Quotations.
“Coupon
Rate” has the meaning specified in Section 2.5(a).
“Definitive
Note Certificates” means Notes issued in definitive, fully registered
form.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Fitch”
means Fitch Ratings Ltd., and any successor to its rating agency
business.
“Fixed
Coupon Rate” has the meaning specified in Section 2.5(a).
“Fixed
Rate Period” has the meaning specified in Section 2.5(a).
“Floating
Coupon Rate” has the meaning specified in Section 2.5(a).
“Floating
Rate Period” has the meaning specified in Section 2.5(a).
“Global
Note” has the meaning specified in Section 2.4(a).
“Inapplicable
Covenants” has the meaning specified in Section 2.7.
“Interest
Payment Date” has the meaning specified in Section 2.5(a).
“LIBOR
Business Day” means any Business Day on which dealings in deposits in U.S.
Dollars are transacted in the London Inter-Bank Market.
“LIBOR
Interest Determination Date” means the second LIBOR Business Day preceding each
LIBOR Rate Reset Date.
3
“LIBOR
Rate Reset Date” means, subject to Section 2.5(b), the 1st day of the months of
February, May, August and November of each year commencing on November 1,
2011.
“Make-Whole
Amount” means an amount equal to the greater of (i) 100% of the principal
amount of the Notes or (ii) as determined by a Quotation Agent as of the
redemption date, the sum of the present value of each scheduled payment of
interest on the Notes from the redemption date to November 1, 2011 and the
present value of the principal amount of the Notes assuming, solely for purposes
of this calculation, a scheduled payment of such principal on November 1, 2011,
discounted to the redemption date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at a discount rate equal to the
Treasury Rate plus 50 basis points.
“Moody’s”
means ▇▇▇▇▇’▇ Investor Service, Inc., and any successor to its rating agency
business.
“Notes”
has the meaning specified in the second recital to this Second Supplemental
Indenture.
“Optional
Deferral Period” has the meaning specified in Section 4.1(a).
“Optional
Redemption Price” has the meaning specified in Section 3.2.
“Primary
Treasury Dealer” has the meaning specified in the definition of Quotation
Agent.
“Quotation
Agent” means one of Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ Brothers
Inc., and their respective successors as selected by the Company; provided,
however, that if all of these firms cease to be a primary United States
Government securities dealer in New York City (a “Primary Treasury Dealer”), the
Company shall substitute another Primary Treasury Dealer as Quotation
Agent.
“Rating
Agency” means any of the Rating Agencies.
“Rating
Agencies” means ▇▇▇▇▇’▇, S&P and Fitch.
“Record
Date” has the meaning specified in Section 2.5(a).
“Reference
Treasury Dealer” means (i) Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇
Brothers Inc. and their respective successors; provided, however, that if any
of
these firms shall cease to be a Primary Treasury Dealer, the Company shall
substitute another Primary Treasury Dealer for that firm; and (ii) up to
two other Primary Treasury Dealers 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 Quotation
Agent, of the bid and asked prices for the Comparable Treasury
4
Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Quotation Agent by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such redemption
date.
“S&P”
means Standard & Poor’s, a division of McGraw Hill Companies, Inc., and any
successor to its rating agency business.
“Senior
Indebtedness” means with respect to the Company, (i) the principal,
premium, if any, and interest in respect of (A) indebtedness of such
obligor for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by such obligor,
including, without limitation, all obligations under its 7.60% Senior Notes
due
2024, 8.25% Senior Notes due 2029, 2.75% Senior Notes due 2006, Term Notes
due
2005, First Mortgage Bonds due 2006 to 2029 and 4.375% Senior Notes due 2008;
(ii) all capital, synthetic or financial lease obligations of such obligor;
(iii) all obligations of such obligor issued or assumed as the deferred
purchase price of property, all conditional sale obligations of such obligor
and
all obligations of such obligor under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of business);
(iv) all obligations of such obligor for the reimbursement on any letter of
credit, banker’s acceptance, security purchase facility or similar credit
transaction; (v) any other indebtedness or obligations of such obligor with
respect to derivative contracts, including commodity contracts, interest rate,
commodity and currency swap agreements, forward contracts and other similar
agreements or arrangements; (vi) all obligations of the type referred to in
clauses (i) through (v) of other persons for the payment of which such
obligor is responsible or liable as obligor, guarantor or otherwise; and
(vii) all obligations of the type referred to in clauses (i) through
(vi) of other persons secured by any lien on any property or asset of such
obligor (whether or not such obligation is assumed by such obligor), except
for
(A) any such indebtedness that is by its terms subordinated to or pari
passu with the Notes, as the case may be, and (B) any indebtedness between
or among any obligor and its Affiliates.
“Special
Event” means either a Tax Event or a Change of Control Event.
“Special
Event Redemption Price” means the Make-Whole Amount.
“Stated
Maturity” has the meaning specified in Section 2.2.
“Tax
Event” means the receipt by the Company of an opinion of independent tax counsel
experienced in such matters (“Tax Event Opinion”), to the effect that, as a
result of (i) any amendment to, change in or announced prospective change
in the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or (ii) any
official administrative written decision, pronouncement or action, or judicial
decision interpreting or applying such laws or regulations, which amendment
or
change is effective or which proposed change, pronouncement, decision or action
is announced on or after the date of original issuance of the Notes, there
is
more than an insubstantial risk that interest payable by the Company on the
Notes is not or within 90 days of the date of such opinion, will not be
deductible, in whole or in part, by the Company for United States federal income
tax purposes.
5
“Tax
Event Opinion” has the meaning specified in the definition of Tax
Event.
“Telerate
Page 3750” means the display designated as “Telerate page 3750” on Moneyline
Telerate, Inc. (or such other page as may replace “Telerate page 3750” on such
service) or such other service displaying the London Inter-Bank offered rates
of
major banks, as may replace Moneyline Telerate, Inc.
“Three-Month
LIBOR Rate” means the rate determined in accordance with the following
provisions:
(1) On
the LIBOR Interest Determination Date, the Calculation Agent or its affiliate
will determine the Three-Month LIBOR Rate which shall be the rate for deposits
in U.S. Dollars having a three-month maturity which appears on the Telerate
Page
3750 as of 11:00 a.m., London time, on the LIBOR Interest Determination Date.
(2) If
no rate appears on Telerate Page 3750 on the LIBOR Interest Determination Date,
the Calculation Agent or its affiliate will request the principal London offices
of four major reference banks in the London Inter-Bank Market, to provide it
with their offered quotations for deposits in U.S. Dollars for the period of
three months, commencing on the applicable LIBOR Rate Reset Date, to prime
banks
in the London Inter-Bank Market at approximately 11:00 a.m., London time, on
that LIBOR Interest Determination Date and in a principal amount that is
representative for a single transaction in U.S. Dollars in that market at that
time. If at least two quotations are provided, then the Three-Month LIBOR Rate
will be the average (rounded, if necessary, to the nearest one hundredth (0.01)
of a percent) of those quotations. If fewer than two quotations are provided,
then the Three-Month LIBOR Rate will be the average (rounded, if necessary,
to
the nearest one hundredth (0.01) of a percent) of the rates quoted at
approximately 11:00 a.m., New York City time, on the LIBOR Interest
Determination Date by three major banks in New York City selected by the
Calculation Agent or its affiliate for loans in U.S. Dollars to leading European
banks, having a three-month maturity and in a principal amount that is
representative for a single transaction in U.S. Dollars in that market at that
time. If the banks selected by the Calculation Agent or its affiliate are not
providing quotations in the manner described by this paragraph, the rate for
the
quarterly interest period following the LIBOR Interest Determination Date will
be the rate in effect on that LIBOR Interest Determination Date.
“Treasury
Rate” means (i) the yield, under the heading which represents the average for
the immediately preceding week, appearing in the most recently published
statistical release designated “H.15(519)” or any successor publication which is
published weekly by the Federal Reserve and which establishes yields on actively
traded United States Treasury securities adjusted to constant maturity under
the
caption “Treasury Constant Maturities,” for the maturity corresponding to the
time period from the redemption date to November 1, 2011, (if no maturity is
within three months before or after such time period, yields for the two
published maturities most closely corresponding to such time period shall be
determined by the Quotation Agent and the Treasury Rate shall be interpolated
or
extrapolated from such yields on a straight-line basis, rounding to the nearest
month) or (ii) if such release (or any
6
successor
release) is not published during the week preceding the calculation date or
does
not contain such yields, the rate per annum equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue, calculated using 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
Treasury Rate shall be calculated on the third Business Day preceding the
redemption date.
“Underwriters”
has the meaning specified in the fourth recital to this Second Supplemental
Indenture.
“Underwriting
Agreement” has the meaning specified in the fourth recital to this Second
Supplemental Indenture.
ARTICLE
II
GENERAL
TERMS AND CONDITIONS OF THE NOTES
SECTION
2.1. Designation
and Principal Amount. There
is
hereby authorized a series of Securities designated the “7.20% Series A
Junior Subordinated Notes due 2066”, limited in aggregate principal amount to
$600,000,000, which amount shall be as set forth in any written Company Order
for the authentication and delivery of Notes pursuant to Section 301 of the
Base Indenture and Section 8.1 of this Second Supplemental
Indenture.
SECTION
2.2. Maturity.
The
Stated Maturity will be November 1, 2066, which may not be shortened or
extended.
SECTION
2.3. Form
and Payment. Except
as
provided in Section 2.4, the Notes shall be issued as Registered Securities
in fully registered certificated form without interest coupons in minimum
denominations of $1,000 and integral multiples of $1,000. Principal and interest
on the Notes issued in certificated form will be payable, the transfer of such
Notes will be registrable and such Notes will be exchangeable for Notes bearing
identical terms and provisions at the office or agency of the Trustee; provided,
however, that payment of interest may be made at the option of the Company
by
check mailed to the Holder at such address as shall appear in the Security
Register.
SECTION
2.4. Exchange
and Registration of Transfer of Notes; Restrictions on Transfers; Common
Depositary.
The
Notes will be issued to the holders in accordance with the following
procedures:
(a) So
long
as Notes are eligible for book-entry settlement with the Depositary, or unless
required by law, all Notes that are so eligible will be represented by one
or
more Notes in global form (a “Global Note”) registered in the name of the Common
Depositary or the nominee of the Common Depositary. Except as provided in
Section 2.4(c) below, beneficial owners of a Global Note shall not be entitled
to have Definitive Note Certificates registered in their names, will not receive
or be entitled to receive physical delivery of Definitive Note Certificates
and
will not be registered holders of such Global Notes.
7
(b) The
transfer and exchange of beneficial interests in Global Notes shall be effected
through the Common Depositary in accordance with the Base Indenture and the
procedures and standing instructions of the Common Depositary, and the Trustee
shall make appropriate endorsements to reflect increases or decreases in
principal amounts of such Global Notes.
(c) Notwithstanding
any other provisions of the Base Indenture or the Second Supplemental Indenture
(other than the provisions set forth in this Section 2.4(c)), a Global Note
may
not be exchanged in whole or in part for Notes registered, and no transfer
of a
Global Note may be registered, in the name of any person other than the Common
Depositary or a nominee thereof unless (i) such Common Depositary (A) has
notified the Company that it is unwilling or unable to continue as Common
Depositary for such Global Note or (B) has ceased to be a clearing agency
registered as such under the Exchange Act and no successor Common Depositary
has
been appointed by the Company within 90 days after its receipt of such notice
or
its becoming aware of such ineligibility, (ii) there shall have occurred and
be
continuing an Event of Default, or any event which after notice or lapse of
time
or both would be an Event of Default under the Indenture, with respect to such
Note, or (iii) the Company, in its sole discretion and subject to the procedures
of the Common Depositary, instructs the Trustee to exchange such Global Note
for
a Note that is not a Global Note (in which case such exchange (subject to such
procedures) shall be effected by the Trustee).
The
Common Depositary shall be a clearing agency registered under the Exchange
Act.
The Company initially appoints The Depository Trust Company to act as Common
Depositary with respect to the Global Notes. Initially, the Global Notes shall
be registered in the name of Cede & Co., as the nominee of the Common
Depositary, and deposited with the Trustee as custodian for Cede &
Co.
Definitive
Notes issued in exchange for all or a part of a Global Note pursuant to this
Section 2.4(c) shall be registered in such names and in such authorized
denominations as the Common Depositary, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. Upon
execution and authentication, the Trustee shall deliver such definitive Notes
to
the person in whose names such definitive Notes are so registered.
So
long
as Notes are represented by one or more Global Notes, (i) the registrar for
the
Notes and the Trustee shall be entitled to deal with the Common Depositary
for
all purposes of the Indenture relating to such Global Notes as the sole holder
of the Notes evidenced by such Global Notes and shall have no obligations to
the
holders of beneficial interests in such Global Notes; and (ii) the rights of
the
holders of beneficial interests in such Global Notes shall be exercised only
through the clearing agency and shall be limited to those established by law
and
agreements between such holders and the clearing agency and/or the participants
in the clearing agency.
At
such
time as all interests in a Global Note have been paid, redeemed, exchanged,
repurchased or canceled, such Global Note shall be, upon receipt thereof,
canceled by the Trustee in accordance with standing procedures and
8
instructions
of the Common Depositary. At any time prior to such cancellation, if any
interest in a Global Note is exchanged for definitive Notes, redeemed by the
Company pursuant to Article III or canceled, or transferred for part of a Global
Note, the principal amount of such Global Note shall, in accordance with the
standing procedures and instructions of the Common Depositary be reduced or
increased, as the case may be, and an endorsement shall be made on such Global
Note by, or at the direction of, the Trustee to reflect such reduction or
increase.
SECTION
2.5. Interest.
(a) Each
Note
will bear interest at (i) the rate of 7.20% per annum (the “Fixed Coupon
Rate”) until November 1, 2011 (the “Fixed Rate Period”), and (ii) the
Three-Month LIBOR Rate plus 3.0175% per annum, reset quarterly on the LIBOR
Rate
Reset Dates (the “Floating Coupon Rate” and, together with the Fixed Coupon
Rate, the “Coupon Rate”), from November 1, 2011 up to, but not including, the
Stated Maturity (the “Floating Rate Period”), and will bear interest on any
overdue principal at the then prevailing Coupon Rate and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the then prevailing Coupon Rate (“Additional
Interest”), compounded semi-annually for the Fixed Rate Period and quarterly for
the Floating Rate Period, payable (subject to the provisions of Article IV)
semi-annually in arrears on the 1st day of May and November of each year during
the Fixed Rate Period and quarterly in arrears on the 1st day of February,
May,
August and November of each year during the Floating Rate period (each, an
“Interest Payment Date”), commencing on May 1, 2007 for the Fixed Rate Period
and February 1, 2012 for the Floating Rate Period) to the Person in whose name
such Note is registered, subject to certain exceptions, at the close of business
on the Record Date next preceding such Interest Payment Date. The “Record Date”
for payment of interest will be the Business Day next preceding the Interest
Payment Date, unless such Note is registered to a holder other than the Common
Depositary or a nominee of the Depositary, in which case the Record Date for
payment of interest will be the fifteenth calendar day preceding the applicable
Interest Payment Date, whether or not a Business Day.
(b) During
the Fixed Rate Period, the amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months, and during
the
Floating Rate Period, the amount of interest payable for any period will be
computed on the basis of the actual number of days in the relevant period
divided by 360. During the Fixed Rate Period, if an Interest Payment Date,
redemption date or the Stated Maturity of the Notes falls on a day that is
not a
Business Day, the payment of interest and principal will be made on the next
succeeding Business Day, and no interest on such payment will accrue for the
period from and after the Interest Payment Date, redemption date or the Stated
Maturity, as the case may be. During the Floating Rate Period, if any Interest
Payment Date, other than a redemption date or the Stated Maturity of the Notes,
falls on a day that is not a Business Day, the Interest Payment Date will be
postponed to the next day that is a Business Day, except that if that Business
Day is in the next succeeding calendar month, the Interest Payment Date will
be
the immediately preceding Business Day. Also, if a redemption date or the Stated
Maturity of the Notes falls on a day that is not a Business Day, the payment
of
interest and principal will be made on the next succeeding Business Day,
and no interest
on such payment will accrue for the period from and after a redemption date
or
the Stated Maturity, as the case may be. During the Floating Rate Period, if
any
LIBOR Rate Reset Date falls on a day that is not a Business Day, the LIBOR
Rate
Reset Date will be postponed to the next day that is a Business Day, except
that
if that Business Day is in the next succeeding calendar month, the LIBOR Rate
Reset Date will be the immediately preceding Business Day. During the Floating
Rate Period, the interest rate in effect on any LIBOR Rate Reset Date will
be
the applicable rate as reset on that date and the interest rate applicable
to
any other day will be the interest rate as reset on the immediately preceding
LIBOR Rate Reset Date.
9
SECTION
2.6. Event
of Default. An
Event of Default as defined in the Indenture shall be an Event of Default with
respect to the Notes, provided that the nonpayment of interest for so long
as
and to the extent that interest is permitted to be deferred pursuant to
Article IV herein shall not be deemed to be a default in the payment of
interest for the purposes of Article V of the Base Indenture and shall not
otherwise be deemed an Event of Default with respect to the Notes. For the
avoidance of doubt, and without prejudice to any other remedies that may be
available to the Trustee or the holders of the Notes, no breach by the Company
of any covenant or obligation under the Indenture or the terms of the Notes
shall be an Event of Default except those breaches that are specifically
identified as an Event of Default under the Indenture.
SECTION
2.7. Certain
Covenants Do Not Apply to Notes. The
covenants set forth in Section 1009 and Section 1010 of the Base
Indenture (the “Inapplicable Covenants”) do not apply to the Notes. Holders of
the Notes may not require the Company to comply with the terms of the
Inapplicable Covenants, and noncompliance by the Company with the terms of
the
Inapplicable Covenants shall not be deemed to be an Event of Default with
respect to the Notes.
ARTICLE
III
REDEMPTION
OF THE NOTES
SECTION
3.1. Special
Event Redemption.
If a
Special Event shall occur and be continuing, the Company may redeem the Notes
within 90 days after the occurrence of that Special Event, in whole but not
in
part, before November 1, 2011, at the Special Event Redemption Price plus
accrued and unpaid interest thereon, if any, to but excluding the redemption
date. The Special Event Redemption Price shall be paid prior to 2:30 p.m.,
New
York City time, on the date of such redemption, provided that the Company shall
deposit with the Trustee an amount sufficient to pay the Special Event
Redemption Price by 11:00 a.m., New York City time, on the date such Special
Event Redemption Price is to be paid. The Company will notify the Trustee of
the
amount of the Special Event Redemption Price promptly after the calculation
thereof, and the Trustee will not be responsible for such
calculation.
SECTION
3.2. Optional
Redemption by Company.
Subject
to the provisions of Article XI of the Base Indenture, except as otherwise
may
be specified in this Second Supplemental Indenture, the Company shall have
the
right to redeem the Notes, in whole or in part, from time to time, on or after
November 1, 2011, at a redemption price equal to 100% of their principal amount
(the “Optional Redemption Price”) plus accrued and unpaid interest thereon, if
any,
10
to
but
excluding the redemption date. If the Notes are only partially redeemed pursuant
to this Section 3.2, the Notes will be redeemed pro rata, by lot or by any
other method utilized by the Trustee, provided that, if at the time of
redemption the Notes are registered as a Global Note, the Common Depository
shall determine by lot the principal amount of such Notes held by each Holder
of
Note to be redeemed. The Optional Redemption Price shall be paid prior to 2:30
p.m., New York City time, on the date of such redemption provided that the
Company shall deposit with the Trustee an amount sufficient to pay the Optional
Redemption Price by 11:00 a.m., New York City time, on the date such
Optional Redemption Price is to be paid.
SECTION
3.3. Notice
of Redemption.
Subject
to Article Eleven of the Base Indenture, notice of any redemption pursuant
to
this Section 3.3 will be mailed at least 20 days but not more than 60 days
before the redemption date to each holder of Notes to be redeemed at such
holder’s registered address. Unless the Company defaults in payment of the
applicable redemption price, on and after the redemption date interest shall
cease to accrue on such Notes called for redemption.
SECTION
3.4. No
Sinking Fund. The
Notes
are not entitled to the benefit of any sinking fund.
ARTICLE
IV
OPTION
TO DEFER INTEREST PAYMENTS
SECTION
4.1. Option
to Defer Interest Payments. (a)
At the
Company’s option, it may, on one or more occasions, defer payment of all or part
of the current and accrued interest otherwise due on the Notes for a period
of
up to 10 consecutive years (each period, commencing on the date that the first
such interest payment would otherwise have been made, an “Optional Deferral
Period”). A deferral of interest payments may not extend beyond the Stated
Maturity of the Notes, and the Company may not begin a new Optional Deferral
Period until it has paid all accrued interest on the Notes from the previous
Optional Deferral Period.
(b) Any
deferred interest on the Notes will accrue Additional Interest at a rate equal
to the Coupon Rate then applicable to the Notes, to the extent permitted by
applicable law. Once the Company pays all deferred interest payments on the
Notes, including any Additional Interest accrued on the deferred interest,
it
shall be entitled to again defer interest payments on the Notes as described
above, but not beyond the Stated Maturity of the Notes.
(c) Unless
the Company has paid all accrued and payable interest on the Notes, it will
not
and its Subsidiaries shall not do any of the following:
11
(i) declare
or pay any dividends or distributions, or redeem, purchase, acquire, or make
a
liquidation payment on any of the Company’s capital stock;
(ii) make
any
payment of principal of or interest or premium, if any, on or repay, repurchase
or redeem any of its debt securities that rank on a parity with or junior in
right of payment or upon liquidation to the Notes (including debt securities
of
other series issued under the Base Indenture); or
(iii) make
any
guarantee payments on any guarantee of debt securities if the guarantee ranks
on
a parity with or junior in right of payment or upon liquidation to the
Notes.
(d) Notwithstanding
clause (c) above, at any time, including during an Optional Deferral Period,
the
Company may:
(i) pay
stock
dividends or distributions in additional shares of its capital
stock;
(ii) declare
or pay a dividend in connection with the implementation of a shareholders’
rights plan, or issue stock under such a plan or repurchase such rights;
and
(iii) purchase
common stock for issuance pursuant to any employee benefit plans or dividend
reinvestment and direct stock purchase plans.
SECTION
4.2. Notice
of Deferral.
The
Company shall give the Trustee written notice of any optional deferral of
interest not more than 15 Business Days prior to the applicable Interest
Payment Date. The Trustee shall forward such notice promptly to each holder
of
record of Notes.
ARTICLE
V
EXPENSES
SECTION
5.1. Payment
of Expenses. In
connection with the offering, sale and issuance of the Notes, the Company
shall:
(a) pay
for
all costs and expenses relating to the offering, sale and issuance of the Notes,
including commissions to the underwriters payable pursuant to the Underwriting
Agreement and compensation of the Trustee under the Indenture in accordance
with
the provisions of Section 606 of the Base Indenture; and
(b) be
primarily liable for any indemnification obligations arising with respect to
the
Underwriting Agreement.
SECTION
5.2. Payment
upon Resignation or Removal.
Upon
termination of this Second Supplemental Indenture or the Base Indenture or
the
removal or resignation of the Trustee pursuant to Section 608 of the Base
Indenture,
12
the
Company shall pay to the Trustee all amounts owed to it under Section 606
of the Base Indenture accrued to the date of such termination, removal or
resignation.
ARTICLE
VI
SUBORDINATION
SECTION
6.1. Agreement
to Subordinate. The
Company covenants and agrees, and each Holder of Notes issued hereunder by
such
Holder’s acceptance thereof likewise covenants and agrees, that all Notes shall
be issued subject to the provisions of this Article VI; and each Holder of
a
Note, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.
The
payment by the Company of the principal of, premium, if any, and interest on
all
Notes issued hereunder shall, to the extent and in the manner hereinafter set
forth, be subordinated and junior in right of payment and upon liquidation
to
the prior payment in full of all Senior Indebtedness of the Company, whether
outstanding at the date of this Second Supplemental Indenture or thereafter
incurred. Nothing in this Article VI shall apply to claims of, or payments
to,
the Trustee under or pursuant to Section 606 or any other Section of this
Indenture.
No
provision of this Article VI shall prevent the occurrence of any default or
Event of Default hereunder.
SECTION
6.2. Default
on Senior Indebtedness. In
the
event and during the continuation of any default by the Company in the payment
of principal, premium, interest or any other payment due on any Senior
Indebtedness of the Company, as the case may be, or in the event that the
maturity of any Senior Indebtedness of the Company, as the case may be, has
been
accelerated because of a default, then, in either case, no payment shall be
made
by the Company with respect to the principal (including redemption and sinking
fund payments) of, or premium, if any, or interest on the Notes.
In
the
event that, notwithstanding the foregoing, any payment or distribution of any
assets of the Company of any kind whatsoever shall be received by the Trustee
when such payment is prohibited by the preceding paragraph of this
Section 6.2 or of Section 6.3, such payment shall be held in trust for
the benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, for application to the
payment of all Senior Indebtedness remaining unpaid until all such Senior
Indebtedness shall have been paid in full, after giving effect to any concurrent
payment or distribution (or provision therefor) to the holders of such Senior
Indebtedness.
SECTION
6.3. Liquidation;
Dissolution; Bankruptcy. Upon
any
payment by the Company or distribution of assets of the Company of any kind
or
character, whether in cash, property or securities, to creditors upon any
13
dissolution
or winding-up or liquidation or reorganization of the Company, whether voluntary
or involuntary or in bankruptcy, insolvency, receivership or other proceedings,
all amounts due upon all Senior Indebtedness of the Company shall first be
paid
in full, or payment thereof provided for in money in accordance with its terms,
before any payment is made by the Company on account of the principal (and
premium, if any) or interest on the Notes; and upon any such dissolution or
winding-up or liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in
cash,
property or securities, to which the Holders of the Note or the Trustee would
be
entitled to receive from the Company, except for the provisions of this Article
VI, shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the Holders of the Notes or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness of the
Company (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders, as calculated by the Company) or
their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay such Senior Indebtedness in full, in money or money’s worth,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness, before any payment or distribution is
made
to the Holders of Notes or to the Trustee.
In
the
event that, notwithstanding the foregoing, any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, prohibited by the foregoing, shall be received by the Trustee before
all Senior Indebtedness of the Company is paid in full, or provision is made
for
such payment in money in accordance with its terms, such payment or distribution
shall be held in trust for the benefit of and shall be paid over or delivered
to
the holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant
to
which any instruments evidencing such Senior Indebtedness may have been issued,
and their respective interests may appear, as calculated by the Company, for
application to the payment of all Senior Indebtedness of the Company, as the
case may be, remaining unpaid to the extent necessary to pay such Senior
Indebtedness in full in money in accordance with its terms, after giving effect
to any concurrent payment or distribution to or for the holders of such Senior
Indebtedness.
For
purposes of this Article VI, the words “cash, property or securities” shall not
be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided
for
by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article VI with respect
to
the Notes to the payment of all Senior Indebtedness of the Company, as the
case
may be, that may at the time be outstanding, provided that (i) such Senior
Indebtedness is assumed by the new corporation, if any, resulting from any
such
reorganization or readjustment, and (ii) the rights of the holders of such
Senior Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the Company with,
or
the merger of the Company into, another corporation or the liquidation
or
14
dissolution
of the Company following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the
terms
and conditions provided for in Article Eight of the Base Indenture shall not
be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of this Section 6.3 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions stated
in Article Eight of the Base Indenture. Nothing in Section 6.2 or in this
Section 6.3 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 606 of the Base Indenture.
SECTION
6.4. Subrogation.
Subject
to the payment in full of all Senior Indebtedness of the Company, the rights
of
the Holders of the Notes shall be subrogated to the rights of the holders of
such Senior Indebtedness to receive payments or distributions of cash, property
or securities of the Company, as the case may be, applicable to such Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Notes shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of such Senior Indebtedness of any
cash, property or securities to which the Holders of the Notes or the Trustee
would be entitled except for the provisions of this Article VI, and no payment
over pursuant to the provisions of this Article VI to or for the benefit of
the
holders of such Senior Indebtedness by Holders of the Notes or the Trustee,
shall, as between the Company, its creditors other than holders of Senior
Indebtedness of the Company, and the Holders of the Notes shall be deemed to
be
a payment by the Company to or on account of such Senior Indebtedness. It is
understood that the provisions of this Article VI are and are intended solely
for the purposes of defining the relative rights of the Holders of the Notes,
on
the one hand, and the holders of such Senior Indebtedness, on the other
hand.
Nothing
contained in this Article VI or elsewhere in the Indenture or in the Notes
is
intended to or shall impair, as between the Company, its creditors other than
the holders of Senior Indebtedness of the Company, and the Holders of the Notes,
the obligation of the Company, which is absolute and unconditional, to pay
to
the Holders of the Notes the principal of (and premium, if any) and interest
on
the Notes as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders of the Notes and creditors of the Company, as the case may be, other
than the holders of Senior Indebtedness of the Company, as the case may be,
nor
shall anything herein or therein prevent the Trustee or the Holder of any Note
from exercising all remedies otherwise permitted by applicable law upon default
under the Indenture, subject to the rights, if any, under this Article VI of
the
holders of such Senior Indebtedness in respect of cash, property or securities
of the Company, as the case may be, received upon the exercise of any such
remedy.
Upon
any
payment or distribution of assets of the Company referred to in this Article
VI,
the Trustee, subject to the provisions of Section 602 of the Base
Indenture, and the Holders of the Notes shall be entitled to rely upon any
order
or decree made by any court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidation trustee, agent
or other Person making such payment or distribution, delivered to the Trustee
or
to the Holders of the Notes, for the purposes of ascertaining the Persons
entitled to participate in such distribution, the holders of Senior
15
Indebtedness
and other indebtedness of the Company, as the case may be, the amount thereof
or
payable thereon, the amount or amounts paid or distributed thereon and all
other
facts pertinent thereto or to this Article VI.
SECTION
6.5. Trustee
to Effectuate Subordination. Each
Holder of Notes by such Holder’s acceptance thereof authorizes and directs the
Trustee on such Holder’s behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article VI and
appoints the Trustee such Holder’s attorney-in-fact for any and all such
purposes.
SECTION
6.6. Notice
by the Company. The
Company shall give prompt written notice to a Responsible Officer of the Trustee
of any fact known to the Company that would prohibit the making of any payment
of monies to or by the Trustee in respect of the Notes pursuant to the
provisions of this Article VI. Notwithstanding the provisions of this Article
VI
or any other provision of the Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment of monies to or by the Trustee in respect of the Notes pursuant to
the
provisions of this Article VI, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof from the Company or a holder
or holders of Senior Indebtedness or from any trustee therefor; and before
the
receipt of any such written notice, the Trustee, subject to the provisions
of
Section 602 of the Base Indenture, shall be entitled in all respects to
assume that no such facts exist; provided,
however, that,
if
the Trustee shall not have received the notice provided for in this
Section 6.6 at least two Business Days prior to the date upon which by the
terms hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or interest
on
any Note), then, anything herein contained to the contrary notwithstanding,
the
Trustee shall have full power and authority to receive such money and to apply
the same to the purposes for which they were received, and shall not be affected
by any notice to the contrary that may be received by it within two Business
Days prior to such date.
The
Trustee, subject to the provisions of Section 602 of the Base Indenture,
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness of the Company,
as
the case may be (or a trustee on behalf of such holder) to establish that such
notice has been given by a holder of such Senior Indebtedness or a trustee
on
behalf of any such holder or holders. In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of
any
Person as a holder of such Senior Indebtedness to participate in any payment
or
distribution pursuant to this Article VI, the Trustee may request such Person
to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of such Senior Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article VI, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
16
SECTION
6.7. Rights
of the Trustee; Holders of Senior Indebtedness. The
Trustee in its individual capacity shall be entitled to all the rights set
forth
in this Article VI in respect of any Senior Indebtedness at any time held by
it,
to the same extent as any other holder of Senior Indebtedness, and nothing
in
this Indenture shall deprive the Trustee of any of its rights as such
holder.
With
respect to the holders of Senior Indebtedness of the Company, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article VI, and no implied covenants
or
obligations with respect to the holders of such Senior Indebtedness shall be
read into the Base Indenture or this Second Supplemental Indenture against
the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of such Senior Indebtedness and the Trustee shall not be liable to
any
holder of such Senior Indebtedness if it shall pay over or deliver to Holders
of
Notes, the Company or any other Person money or assets to which any holder
of
such Senior Indebtedness shall be entitled by virtue of this Article VI or
otherwise.
SECTION
6.8. Subordination
May Not Be Impaired. No
right
of any present or future holder of any Senior Indebtedness of the Company to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company,
as the case may be, or by any act or failure to act, in good faith, by any
such
holder, or by any noncompliance by the Company, as the case may be, with the
terms, provisions and covenants of the Indenture, regardless of any knowledge
thereof that any such holder may have or otherwise be charged with.
Without
in any way limiting the generality of the foregoing paragraph, the holders
of
Senior Indebtedness of the Company may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the Notes,
without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this Article VI or the
obligations hereunder of the Holders of the Notes to the holders of such Senior
Indebtedness, do any one or more the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
such Senior Indebtedness, or otherwise amend or supplement in any manner such
Senior Indebtedness or any instrument evidencing the same or any agreement
under
which such Senior Indebtedness is outstanding; (ii) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise securing
such Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of such Senior Indebtedness; and (iv) exercise or refrain
from exercising any rights against the Company, as the case may be, and any
other Person.
ARTICLE
VII
FORM
OF NOTE
SECTION
7.1. Form
of Note.
The
Notes and the Trustee’s Certificate of Authentication to be endorsed thereon are
to be substantially in the form attached hereto as Exhibit A.
17
ARTICLE
VIII
ORIGINAL
ISSUE OF NOTES
SECTION
8.1. Original
Issue of Notes. Notes
in
the aggregate principal amount of $600,000,000 may, upon execution of this
Second Supplemental Indenture, be executed by the Company and delivered to
the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver said Notes to or upon the written order of the Company, signed by its
Chairman, its President, or any Vice President and its Treasurer or an Assistant
Treasurer, without any further action by the Company. Additional Notes without
limitation as to amount, and without the consent of the holders of the then
Outstanding Notes, may also be authenticated and delivered in the manner
provided in Section 201 of the Base Indenture. Any such additional Notes will
have the same Stated Maturity and other terms as those initially issued and
shall be consolidated with and part of the same series of Notes as the Notes
initially issued under this Second Supplemental Indenture.
ARTICLE
IX
MISCELLANEOUS
SECTION
9.1. Ratification
of Indenture; Second Supplemental Indenture Controls. The
Base
Indenture, as supplemented by this Second Supplemental Indenture, is in all
respects ratified and confirmed, and this Second Supplemental Indenture shall
be
deemed part of the Indenture in the manner and to the extent herein and therein
provided.
The
provisions of this Second Supplemental Indenture shall supercede the provisions
of the Base Indenture to the extent the Base Indenture is inconsistent with
the
Second Supplemental Indenture.
SECTION
9.2. Trustee
Not Responsible for Recitals. The
recitals herein contained are made by the Company 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 Second
Supplemental Indenture.
SECTION
9.3. Governing
Law. This
Second Supplemental Indenture and each 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
9.4. Separability.
In
case
any one or more of the provisions contained in this Second Supplemental
Indenture or in the 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 Second Supplemental Indenture
or
of the Notes, but Second Supplemental Indenture and the Notes shall be construed
as if such invalid or illegal or unenforceable provision had never been
contained herein or therein.
18
SECTION
9.5. Counterparts.
This
Second 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.
19
-NY12533:207075.920
IN
WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed on the date or dates indicated in the
acknowledgements and as of the day and year first above written.
SOUTHERN
UNION COMPANY
By:
___________________________
Name:
Title:
THE
BANK
OF NEW YORK TRUST COMPANY, N.A.,
as
Trustee
By:
____________________________
Name:
Title:
-NY12533:207075.9
EXHIBIT
A
(FORM
OF
FACE OF NOTE)
[THIS
NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY.
THIS NOTE IS EXCHANGEABLE FOR JUNIOR SUBORDINATED 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 NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.]*
[UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF [CEDE & CO]. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE
TO
[CEDE & CO.], ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, [CEDE
&
CO.], HAS AN INTEREST HEREIN.]*
THE
NOTES
EVIDENCED HEREBY WILL BE ISSUED, AND MAY BE TRANSFERRED, ONLY IN BLOCKS HAVING
A
PRINCIPAL AMOUNT OF NOT LESS THAN $1,000. ANY TRANSFER, SALE OR OTHER
DISPOSITION OF SUCH NOTES IN A BLOCK HAVING A PRINCIPAL AMOUNT OF LESS THAN
$1,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH
TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH NOTES FOR ANY PURPOSE,
INCLUDING BUT NOT LIMITED TO THE RECEIPT OF PAYMENTS IN RESPECT OF SUCH NOTES,
AND SUCH TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH
NOTES.
*
Insert
in Global Notes.