Exhibit 4(e)
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FOURTH SUPPLEMENTAL INDENTURE
between
PANHANDLE EASTERN PIPE LINE COMPANY, LLC
Issuer
and
▇.▇. ▇▇▇▇▇▇ TRUST COMPANY, NATIONAL ASSOCIATION
Trustee
Dated as of March 12, 2004
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Table of Contents
ARTICLE I.
DEFINITIONS
SECTION 1.1 Definition of Terms............................................ 3
ARTICLE II.
GENERAL TERMS AND CONDITIONS OF THE SENIOR NOTES
SECTION 2.1 Designation and Principal Amount of the Series A Notes......... 10
SECTION 2.2 Maturity of the Series A Notes................................. 11
SECTION 2.3 Interest on the Series A Notes................................. 11
SECTION 2.4 Form of the Series A Notes..................................... 11
SECTION 2.5 Special Transfer Provisions.................................... 12
SECTION 2.6 Designation and Principal Amount of the Series B Notes......... 12
SECTION 2.7 Maturity of the Series B Notes................................. 12
SECTION 2.8 Interest on the Series B Notes................................. 12
SECTION 2.9 Form of the Series B Notes..................................... 12
SECTION 2.10 Redemption of the Senior Notes................................. 12
ARTICLE III.
COVENANTS
SECTION 3.1 Limitation on Restricted Payments.............................. 13
SECTION 3.2 Limitation on Liens............................................ 14
SECTION 3.3 Restriction on Sale-Leasebacks................................. 16
SECTION 3.4 Financial Information.......................................... 17
SECTION 3.5 Applicability of Covenants..................................... 18
ARTICLE IV.
DEFAULT
SECTION 4.1 General........................................................ 18
SECTION 4.2 Additional Event of Default.................................... 18
ARTICLE V.
DEFEASANCE
SECTION 5.1 General........................................................ 19
SECTION 5.2 Covenant Defeasance............................................ 19
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ARTICLE VI.
FORM OF SENIOR NOTES
SECTION 6.1 Form of Senior Notes........................................... 19
ARTICLE VII.
ISSUANCE OF SENIOR NOTES
SECTION 7.1 Original Issue of Senior Notes................................. 37
SECTION 7.2 Additional Senior Notes........................................ 37
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.1 Ratification of Indenture...................................... 38
SECTION 8.2 Trustee Not Responsible for Recitals........................... 38
SECTION 8.3 Governing Law.................................................. 38
SECTION 8.4 Separability................................................... 38
SECTION 8.5 Counterparts................................................... 38
ii
FOURTH SUPPLEMENTAL INDENTURE, dated as of March 12, 2004 (the
"Fourth Supplemental Indenture"), between Panhandle Eastern Pipe Line Company,
LLC (formerly known as Panhandle Eastern Pipe Line Company), a Delaware limited
liability company (the "Issuer"), and ▇.▇. ▇▇▇▇▇▇ 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
FOURTH SUPPLEMENTAL INDENTURE
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Notes, known as "4.80% Senior Notes due 2008, Series B"; and (ii) the 6.05%
Senior Notes due 2013 in the initial 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 desires to provide for the establishment of two
new series of its Debt Securities: the first series, in the initial principal
amount of $200,000,000, known as "2.75% Senior Notes due 2007, Series A" (the
"Series A Notes"), and the second series, to be issued in exchange for the
Series A Notes, known as the "2.75% Senior Notes due 2007, Series B" (the
"Series B Notes" and, together with the Series A Notes and any Additional Senior
Notes (as defined below), 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 Fourth 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, the Issuer and the Initial Purchasers named therein have
entered into a Registration Rights Agreement, dated as of March 9, 2004 (as
amended, supplemented or otherwise modified from time to time, the "Registration
Rights Agreement"), which requires the Issuer to use its reasonable best efforts
to make an Exchange Offer (as defined below) which would enable holders of the
Series A Notes to exchange such Senior Notes for Series B Notes, not subject to
certain restrictions under the Securities Act, or to cause a Shelf Registration
Statement to be declared effective with respect to the resale of the Series A
Notes;
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 Fourth Supplemental Indenture, and all requirements necessary to
make this Fourth 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 Fourth Supplemental
Indenture has been duly authorized in all respects:
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:
FOURTH SUPPLEMENTAL INDENTURE
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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 Fourth Supplemental Indenture;
(b) a term defined anywhere in this Fourth 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 Fourth 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 Fourth
Supplemental Indenture in accordance with Section 2.4 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 limited liability company interests,
including any Preferred Stock or letter stock;
FOURTH SUPPLEMENTAL INDENTURE
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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.
FOURTH SUPPLEMENTAL INDENTURE
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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.
"Exchange Notes" means the Series B Notes to be offered to Holders
in exchange for the Series A Notes, pursuant to an Exchange Offer or otherwise
pursuant to a Registration of Series B Notes containing terms identical in all
material respects to the Series A Notes for which they are exchanged, except
that (i) interest thereon shall accrue from the last date on which interest was
paid on the Series A Notes or, if no such interest has been paid, from the date
of issuance of the Series A Notes and (ii) the provisions relating to an
increase in the stated rate of interest thereon upon the occurrence of a
Registration Default shall be eliminated, (iii) the transfer restrictions and
legends relating to restrictions on ownership and transfer thereof as a result
of the issuance of the Series A Notes without Registration shall be eliminated,
and (iv) each of the Exchange Notes so issued will be represented by one or more
Global Notes in book-entry form unless exchanged for Exchange Notes in
definitive certificated form under the circumstances provided hereunder.
"Exchange Offer" means the exchange offer by the Issuer of Exchange
Notes for certain Senior Notes pursuant to the Registration Rights Agreement.
"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 bearing a legend specified in
Section 6.1 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
FOURTH SUPPLEMENTAL INDENTURE
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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 one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Issuer.
"Initial Senior Notes" means the initial $200,000,000 aggregate
principal amount of Series A Notes issued under this Fourth 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
FOURTH SUPPLEMENTAL INDENTURE
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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;
(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
FOURTH SUPPLEMENTAL INDENTURE
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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.
"Private Exchange Notes" shall mean any Senior Notes issued to an
Initial Purchaser (as defined in the Registration Rights Agreement)
simultaneously with the delivery of the Exchange Notes in an Exchange Offer, in
exchange for the Initial Senior Notes held by such Initial Purchaser, that are
identical (except that such Private Exchange Notes shall bear transfer
restrictions substantially in the form contained in Section 6.1 hereof with
respect to Rule 144A Global Notes, and other appropriate transfer restrictions)
to the Exchange Notes.
"Prospectus" shall mean the prospectus included in a 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 a Shelf 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.
"Reference Treasury Dealer" means each of ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Credit Suisse First Boston LLC and ▇.▇. ▇▇▇▇▇▇
Securities Inc. or their affiliates plus three others which are primary U.S.
Government securities dealers, and their respective successors; provided,
however, that if any of the foregoing or their affiliates shall cease to be a
primary U.S. Government securities dealer in The City of New York (a "Primary
Treasury Dealer"), the Issuer shall substitute therefor another Primary Treasury
Dealer.
"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" means a registered exchange offer for any Senior
Notes by the Issuer pursuant to a Registration Statement or other registration
for resale of any Senior Notes under the Securities Act pursuant to a Shelf
Registration Statement, in each case in accordance with the terms of the
Registration Rights Agreement.
"Registration Default" has the meaning set forth in the Registration
Rights Agreement.
"Registration Rights Agreement" has the meaning set forth in the
recitals to this Fourth Supplemental Indenture, and shall also include any
registration rights agreements entered into by the Issuer in connection with the
issuance of any Additional Senior Notes.
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"Registration Statement" means a registration statement of the
Issuer under the Securities Act registering (i) the exchange of Series A Notes,
for Series B Notes, for distribution pursuant to the Exchange Offer, or (ii) the
resale of the Initial Senior Notes or Private Exchange Notes pursuant to a Shelf
Registration Statement.
"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 Fourth 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 Fourth Supplemental Indenture. The Initial Senior Notes and the Additional
Senior Notes shall be treated as a single class for all purposes under this
Fourth Supplemental Indenture, and unless the context otherwise requires, all
references to the Senior Notes shall include the Initial Senior Notes, the
Exchange Notes, the Private Exchange Notes and any Additional Senior Notes.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Issuer which covers all or a portion of the Senior Notes (other
than Exchange Notes) on an appropriate form under Rule 415 under the Securities
Act, or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"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.
"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
FOURTH SUPPLEMENTAL INDENTURE
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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 Fourth 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.
ARTICLE II.
GENERAL TERMS AND CONDITIONS OF
THE SENIOR NOTES
SECTION 2.1 Designation and Principal Amount of the Series A Notes.
There is hereby authorized a single series of Debt Securities
designated as the "2.75% Senior Notes due 2007, Series A", 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
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issued by the Issuer at any time subject to the terms and conditions of the Base
Indenture and this Fourth 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 Series A Notes shall be
$200,000,000.
SECTION 2.2 Maturity of the Series A Notes.
The Series A Notes will mature on March 15, 2007.
SECTION 2.3 Interest on the Series A Notes.
Interest shall accrue from the date set forth, and shall be payable
on the Series A Notes in the amount and as otherwise set forth, in the form of
such Senior Note appearing in Article VI of this Fourth Supplemental Indenture.
SECTION 2.4 Form of the Series A Notes.
The form of the Series A Notes shall be substantially in the form
provided for in Article VI for such Senior Notes. The terms of the Series A
Notes form part of this Fourth Supplemental Indenture. The Series A Notes shall
be represented by one or more Global Notes in definitive, registered form,
without interest coupons. The Series A 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 Series A Notes). The Series A Notes shall
initially contain restrictions on transfer, substantially as described in the
form set forth in Section 6.1. Each Series A Note, whether in the form of a
Global Note or in certificated form, shall initially bear a non-registration
legend and a Restricted Certificate of Transfer, in each case in substantially
the form set forth in such form.
Beneficial interests in Series A Notes owned by qualified
institutional buyers (as defined in Rule 144A) ("QIBs") or sold to QIBs in
reliance upon Rule 144A will be represented by one or more Global Notes
registered in the name of Cede & Co., as registered owner and as nominee for
DTC, or another nominee designated by DTC in definitive, fully registered form
without interest coupons in denominations of US$1,000 and any integral multiples
of US$1,000. The Trustee and the Issuer will have no responsibility under the
Indenture for transfers of beneficial interests in the Series A Notes. So long
as a Senior Note bears a non-registration legend and a Restricted Certificate of
Transfer the Trustee shall authenticate and issue new Senior Notes upon a
registration of transfer only upon receipt of a Restricted Certificate of
Transfer in the form set forth in Section 6.1 hereof. The Trustee shall refuse
to register any transfer of a Senior Note in violation of the legend set forth
on such Senior Note and without appropriate completion of the Restricted
Certificate of Transfer on such Senior Note.
Subject to the conditions set forth therein and in the Indenture,
pursuant to the Registration Rights Agreement, the non-registration legend and
the Restricted Certificate of Transfer may be removed or rendered inapplicable
in the event of the consummation of an Exchange Offer or upon a resale under an
effective Shelf Registration Statement, in each case, in respect of the Series A
Notes.
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SECTION 2.5 Special Transfer Provisions.
For the purposes of this Fourth Supplemental Indenture, unless and until a
Series A Note is exchanged for an Exchange Note or is resold, in each case in
connection with an effective Registration Statement pursuant to the Registration
Rights Agreement, the registration of any proposed transfer of an interest in a
Series A Global Note may be effected only through the book entry system
maintained by the Depositary.
SECTION 2.6 Designation and Principal Amount of the Series B Notes.
There is hereby authorized a single series of Debt Securities
designated as the "2.75% Senior Notes due 2007, Series B", 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 Fourth 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 Series B Notes shall not exceed
$200,000,000.
SECTION 2.7 Maturity of the Series B Notes.
The Series B Notes will mature on March 15, 2007.
SECTION 2.8 Interest on the Series B Notes.
Interest shall accrue from the date set forth, and shall be payable
on the Series B Notes in the amount and as otherwise set forth, in the form of
such Senior Note appearing in Article VI of this Fourth Supplemental Indenture.
SECTION 2.9 Form of the Series B Notes. -
The form of the Series B Notes shall be substantially in the form
provided for in Article VI for such Senior Notes, and such Senior Notes, being
Exchange Notes, shall not contain terms with respect to transfer restrictions
(unless they are Private Exchange Notes) or additional interest payable upon the
occurrence of a Registration Default. The terms of the Series B Notes form part
of this Fourth Supplemental Indenture. The Series B Notes shall be represented
by one or more Global Notes in definitive, registered form, without interest
coupons. The Series B 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 Series B Notes).
SECTION 2.10 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)
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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 20 basis
points, plus accrued and unpaid interest thereon to the date of redemption.
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 III.
COVENANTS
SECTION 3.1 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;
(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%.
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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:
(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 3.2 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
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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 or any mortgage,
pledge agreement, security agreement or other similar instrument in
existence on the date of the Indenture;
(ii) 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;
(iii) 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);
(iv) 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);
(v) 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;
(vi) 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;
(vii) any Lien in favor of the Issuer or any Restricted
Subsidiary;
(viii) 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;
(ix) any Lien upon property or assets of any foreign
Restricted Subsidiary to secure Debt of that foreign Restricted
Subsidiary;
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(x) Permitted Liens;
(xi) 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;
(xii) 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
(xiii) 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); provided further, 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 (xiii), 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 Fourth
Supplemental Indenture) does not exceed the greater of 15% of Consolidated Net
Tangible Assets or 15% of Total Capital.
SECTION 3.3 Restriction on Sale-Leasebacks.
(a) The Issuer shall not, nor shall it permit any Restricted
Subsidiary to, engage in a Sale-Leaseback Transaction, unless:
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(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 Fourth 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
(iv) 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 Fourth Supplemental
Indenture, do not exceed the greater of 15% of Consolidated Net Tangible Assets
or 15% of Total Capital.
SECTION 3.4 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 be required to 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
FOURTH SUPPLEMENTAL INDENTURE
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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 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 3.5 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 IV.
DEFAULT
SECTION 4.1 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 4.2 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.
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ARTICLE V.
DEFEASANCE
SECTION 5.1 General.
All of the provisions of Article XI of the Base Indenture shall be
applicable to the Senior Notes.
SECTION 5.2 Covenant Defeasance.
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 Fourth Supplemental Indenture.
ARTICLE VI.
FORM OF SENIOR NOTES
SECTION 6.1 Form of Senior Notes.
The Series A Notes and the Series B Notes, and the Trustee's
Certificate of Authentication to be endorsed thereon, are to be substantially in
the following forms:
[FORM OF FACE OF 2.75% SENIOR NOTES DUE 2007, SERIES A,
AND PRIVATE EXCHANGE NOTES]
Unless and until a Senior Note is exchanged for an Exchange
Note (except for a Private Exchange Note) or sold in connection with an
effective Registration Statement pursuant to the Registration Rights Agreement,
the Global Notes shall bear the legend set forth below on the face thereof.
THE SENIOR NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SENIOR NOTE NOR ANY INTEREST HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A ("RULE 144A") UNDER
THE SECURITIES ACT), (2) AGREES NOT TO OFFER, SELL OR OTHERWISE
TRANSFER THIS SENIOR
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NOTE EXCEPT (A) TO PANHANDLE EASTERN PIPE LINE COMPANY, LLC, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SENIOR
NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR
(D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SENIOR NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT PANHANDLE
EASTERN PIPE LINE COMPANY, LLC AND THE TRUSTEE SHALL HAVE THE RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D)
ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND (II) IN EACH OF THE FOREGOING CASES, BUT ONLY IF THIS SENIOR
NOTE IS NOT A GLOBAL NOTE (AS DEFINED IN THE INDENTURE REFERRED TO
HEREIN), TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SENIOR NOTE IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO PANHANDLE EASTERN PIPE LINE COMPANY,
LLC AND THE TRUSTEE.
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
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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.
Unless and until it is exchanged in whole or in part for Senior
Notes in definitive registered form in accordance with the provisions of the
Indenture applicable to such exchange, this certificate may not be transferred
except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or
another nominee of DTC or by DTC or any such nominee to a successor Depository
or a nominee of such successor Depository.
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CUSIP No. ▇▇▇▇▇▇▇▇▇ $[ ]
Panhandle Eastern Pipe Line Company, LLC
2.75% SENIOR NOTE DUE 2007, SERIES A
PANHANDLE EASTERN PIPE LINE COMPANY, LLC, a Delaware limited
liability company (the "Issuer"), for value received, hereby promises to pay to
Cede & Co., or registered assigns, the principal sum of [AMOUNT IN WORDS]
dollars ($[ ]) on March 15, 2007 ("Maturity") and to pay interest thereon from
March 12, 2004 (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 March 15th and
September 15th in each year, commencing September 15, 2004 and at Maturity at
the rate of 2.75% 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; provided that if any Registration Default with respect to this Senior
Note occurs under the Registration Rights Agreement, then the per annum interest
rate on this Senior Note will increase for the period from the occurrence of
such Registration Default until such time as no Registration Default is in
effect with respect to this Senior Note (at which time the interest rate will be
reduced to its initial rate) at a per annum rate of 0.25% for the first 90-day
period following the occurrence of such Registration Default, and by an
additional 0.25% thereafter (up to a maximum of 0.50%). 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. Any accrued and unpaid interest (including any
additional interest payable upon the occurrence of a Registration Default) on
this Senior Note upon the issuance of an Exchange Note (as defined
FORTH SUPPLEMENTAL INDENTURE
23
in the Indenture) or a Private Exchange Note (as defined in the Indenture) in
exchange for this Senior Note shall cease to be payable to the holder hereof and
shall be payable on the next Interest Payment Date for such Exchange Note or
Private Exchange Note to the holder thereof on the related regular record date.
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.
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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
executed.
Dated [ ]
PANHANDLE EASTERN PIPE LINE COMPANY, LLC
By__________________________________________
Name:
Title:
Attest:
By ____________________________________________
Name:
Title:
FORTH SUPPLEMENTAL INDENTURE
24
[FORM OF 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.
▇.▇. ▇▇▇▇▇▇ TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By _________________________________________
Authorized Signatory
FORTH SUPPLEMENTAL INDENTURE
25
[FORM OF 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 ▇.▇. ▇▇▇▇▇▇ Trust
Company, National Association), further supplemented by the Fourth Supplemental
Indenture dated as of March 12, 2004 between the Issuer and ▇.▇. ▇▇▇▇▇▇ Trust
Company, National Association, 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 Fourth 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 20 basis points plus 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.
"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 one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Issuer.
"Reference Treasury Dealer" means each of ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Credit Suisse First Boston LLC and ▇.▇. ▇▇▇▇▇▇
Securities Inc. or their
FORTH SUPPLEMENTAL INDENTURE
26
affiliates plus three others which are primary U.S. Government securities
dealers, and their respective successors; provided, however, that if any of the
foregoing or their affiliates shall cease to be a primary U.S. Government
securities dealer in The City of New York (a "Primary Treasury Dealer"), the
Issuer shall substitute therefor another Primary Treasury Dealer.
"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.
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
FORTH SUPPLEMENTAL INDENTURE
27
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.
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
FORTH SUPPLEMENTAL INDENTURE
28
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.
[IF SENIOR NOTE IS A RESTRICTED SENIOR NOTE]
RESTRICTED 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)
______________________________________________
(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.
The undersigned certifies that said Senior Note is being resold, pledged or
otherwise transferred as follows: (check one)
[ ] to the Issuer;
[ ] to a Person whom the undersigned reasonably believes is a qualified
institutional buyer within the meaning of Rule 144A under the Securities
Act of 1933, as amended (the "Securities Act") purchasing for its own
account or for the account of a qualified
FORTH SUPPLEMENTAL INDENTURE
29
institutional buyer to whom notice is given that the resale, pledge or
other transfer is being made in reliance on Rule 144A;
[ ] as otherwise permitted by the non-registration legend appearing on this
Senior Note; or
[ ] as otherwise agreed by the Issuer, confirmed in writing to the Trustee, as
follows: (describe)
________________________________________________________________
________________________________________________________________
Dated: ______________________ ______________________]
[Name of Assignor]
[IF SENIOR NOTE IS NOT A RESTRICTED SENIOR NOTE]
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)
________________________________________________________________
________________________________________________________________
(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]
FORTH SUPPLEMENTAL INDENTURE
30
[FORM OF FACE OF 2.75% SENIOR NOTES DUE 2007, SERIES B]
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.
Unless and until it is exchanged in whole or in part for Senior
Notes in definitive registered form in accordance with the provisions of the
Indenture applicable to such exchange, this certificate may not be transferred
except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or
another nominee of DTC or by DTC or any such nominee to a successor Depository
or a nominee of such successor Depository.
CUSIP No. ▇▇▇▇▇▇▇▇▇ $[ ]
Panhandle Eastern Pipe Line Company, LLC
2.75% SENIOR NOTE DUE 2007, SERIES B
PANHANDLE EASTERN PIPE LINE COMPANY, LLC, a Delaware limited
liability company (the "Issuer"), for value received, hereby promises to pay to
Cede & Co., or registered assigns, the principal sum of [AMOUNT IN WORDS]
dollars ($[ ]) on March 15, 2007 ("Maturity") and to pay interest thereon from
March 12, 2004 (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 March 15th and
September 15th in each year, commencing September 15, 2004 and at Maturity at
the rate of 2.75% 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
FOURTH SUPPLEMENTAL INDENTURE
31
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.
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.
FOURTH SUPPLEMENTAL INDENTURE
32
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
executed.
Dated [ ]
PANHANDLE EASTERN PIPE LINE
COMPANY, LLC
By ________________________
Name:
Title:
Attest:
By _________________________________
Name:
Title:
FOURTH SUPPLEMENTAL INDENTURE
33
[FORM OF 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.
▇.▇. ▇▇▇▇▇▇ TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By______________________
[Authorized Signatory]
[FORM OF 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 ▇.▇. ▇▇▇▇▇▇ Trust
Company, National Association), further supplemented by the Fourth Supplemental
Indenture dated as of March 12, 2004 between the Issuer and ▇.▇. ▇▇▇▇▇▇ Trust
Company, National Association, 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 Fourth 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 20 basis points, plus 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.
"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
FOURTH SUPPLEMENTAL INDENTURE
34
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 one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Issuer.
"Reference Treasury Dealer" means each of ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Credit Suisse First Boston LLC and ▇.▇. ▇▇▇▇▇▇
Securities Inc. or their affiliates plus three others which are primary U.S.
Government securities dealers, and their respective successors; provided,
however, that if any of the foregoing or their affiliates shall cease to be a
primary U.S. Government securities dealer in The City of New York (a "Primary
Treasury Dealer"), the Issuer shall substitute therefor another Primary Treasury
Dealer.
"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.
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.
FOURTH SUPPLEMENTAL INDENTURE
35
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.
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
FOURTH SUPPLEMENTAL INDENTURE
36
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)
-----------------------------------------
(PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE)
FOURTH SUPPLEMENTAL INDENTURE
37
------------------------------
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 VII.
ISSUANCE OF SENIOR NOTES
SECTION 7.1 Original Issue of Senior Notes.
Upon execution of this Fourth Supplemental Indenture, the Series A
Notes in the initial principal amount of $200,000,000 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. Further, upon execution of this Fourth Supplemental
Indenture, the Series B Notes in the initial principal amount not to exceed
$200,000,000 may be executed by the Issuer. Such Senior Notes may be delivered
to the Trustee to hold until a Registration Statement has been declared
effective by the SEC and the Exchange Offer has been consummated or a resale has
been effected under such Registration Statement, 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 7.2 Additional Senior Notes.
Upon execution of this Fourth Supplemental Indenture, subject to
Section 2.1 and Section 2.6 hereof, Additional Senior Notes may be executed by
the Issuer. Such Additional Senior Notes issued as Series A 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. Such Additional Senior Notes issued as Series B Notes may be delivered
to the Trustee to hold until a Registration Statement has been declared
effective by the SEC and the Exchange Offer has been consummated or a resale has
been effected under such Registration Statement, and the Trustee shall thereupon
authenticate and deliver said Senior Notes to or upon the written order of the
FOURTH SUPPLEMENTAL INDENTURE
38
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 VIII.
MISCELLANEOUS
SECTION 8.1 Ratification of Indenture.
The Base Indenture, as supplemented by this Fourth Supplemental
Indenture, is in all respects ratified and confirmed, and this Fourth
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided. The provisions of this Fourth
Supplemental Indenture shall supersede the provisions of the Indenture to the
extent the Indenture is inconsistent herewith.
SECTION 8.2 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
Fourth Supplemental Indenture.
SECTION 8.3 Governing Law.
This Fourth 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 8.4 Separability.
In case any one or more of the provisions contained in this Fourth
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 Fourth
Supplemental Indenture or of the Senior Notes, but this Fourth 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 8.5 Counterparts.
This Fourth 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.
FOURTH SUPPLEMENTAL INDENTURE
39
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed as of the day and year first above
written.
PANHANDLE EASTERN PIPE LINE
COMPANY, LLC,
as Issuer
By: _________________________
Name:
▇.▇. ▇▇▇▇▇▇ TRUST COMPANY, NATIONAL
ASSOCIATION,
as Trustee
By: _________________________________
Name:
Title:
FOURTH SUPPLEMENTAL INDENTURE