THIRTY-FIRST SUPPLEMENTAL INDENTURE
Dated as of November 4, 1999
(Supplemental to Indenture Dated as of March 15, 1946)
SOUTHERN UNION COMPANY
(successor to PG Energy, Inc., formerly Pennsylvania Gas and
Water Company)
TO
U.S. BANK TRUST, NATIONAL ASSOCIATION
(Formerly, First Trust of New York, National Association)
Trustee
THIRTY-FIRST SUPPLEMENTAL INDENTURE, dated as of the 4th day
of November, 1999, made by and between SOUTHERN UNION COMPANY, a
corporation organized and existing under the laws of the State of
Delaware (the "Company"), that on November 4, 1999, acquired PG
ENERGY INC. (formerly Pennsylvania Gas and Water Company), a cor-
poration organized and existing under the laws of the Common-
wealth of Pennsylvania ("PG Energy") pursuant to an Agreement of
Merger, dated June 7, 1999, with Pennsylvania Enterprises, Inc.,
the parent company of PG Energy ("Parent"), whereby Parent was
merged with and into the Company and PG Energy was then merged
into the Company, with the Company as the surviving corporation
and successor to PG Energy (the "Merger"), and U.S. BANK TRUST,
NATIONAL ASSOCIATION (formerly, First Trust of New York, National
Association), a national banking association organized and
existing under the laws of the United States, and having its
principal place of business at 000 Xxxx Xxxxxx, Xxxxx 0000, in
The City of New York, New York, as Trustee (hereinafter sometimes
called the "Trustee").
WHEREAS, PG Energy executed and delivered its Indenture (here-
inafter called the "Original Indenture"), dated as of March 15,
1946, to Xxxxxx Guaranty Trust Company of New York ("Xxxxxx")
(formerly Guaranty Trust Company of New York), to secure its
First Mortgage Bonds and executed and delivered thirty indentures
supplemental thereto, dated respectively as of February 15, 1951;
as of September 15, 1951; as of January 15, 1952; as of March 15,
1952; as of June 15, 1952; as of December 1, 1954; as of
April 15, 1956; as of November 15, 1956; as of March 15, 1957; as
of September 1, 1958; as of April 15, 1959; as of July 15, 1960;
as of October 31, 1961; as of December 15, 1961; as of
December 15, 1963; as of June 15, 1966; as of October 15, 1967;
as of May 1, 1970; as of June 1, 1972; as of March 1, 1976; as of
December 1, 1976; as of August 15, 1989; as of August 15, 1989;
as of September 1, 1991; as of September 1, 1992; as of
December 1, 1992; as of December 1, 1992; as of December 1, 1993;
as of November 1, 1994 and December 1, 1995 (the Original Inden-
ture as heretofore supplemented and to be supplemented by this
Thirty-First Supplemental Indenture, and as the same may be
further supplemented by additional indentures supplemental there-
to, being hereinafter collectively called the "Indenture"); and
WHEREAS, PG Energy, Xxxxxx and the Trustee executed and
delivered the Resignation, Successor Appointment and Acceptance
Agreement dated as of September 2, 1994, pursuant to which the
Trustee became successor trustee under the Original Indenture;
and
WHEREAS, PG Energy, at November 4, 1999 (i) had retired all of
the original issue of $24,500,000 principal amount of bonds of a
series designated First Mortgage Bonds 2 7/8% Series due 1976
(hereinafter called "bonds of the First Series"), all of the
original issue of $4,000,000 principal amount of bonds of a
series designated First Mortgage Bonds 3 1/2% Series due 1982,
all of the original issue of $1,000,000 principal amount of bonds
of a series designated First Mortgage Bonds 4 7/8% Series due
1987, all of the original issue of $2,000,000 principal amount of
bonds of a series designated First Mortgage Bonds 4 3/4% Series
due 1983, all of the original issue of $3,000,000 principal
amount of bonds of a series designated First Mortgage Bonds
5 1/2% Series due 1985, all of the original issue of $3,000,000
principal amount of bonds of a series designated First Mortgage
Bonds 5% Series due 1986, all of the original issue of $5,000,000
principal amount of bonds of a Series designated First Mortgage
Bonds 4 5/8% Series due 1988, all of the original issue of
$4,000,000 principal amount of bonds of a series designated First
Mortgage Bonds 5 7/8% Series due 1991, all of the original issue
of $15,000,000 principal amount of bonds of a series designated
First Mortgage Bonds 9% Series due 1991, all of the original
issue of $10,000,000 principal amount of bonds of a series desig-
nated First Mortgage Bonds 6 7/8% Series due 1992, all of the
original issue of $12,000,000 principal amount of bonds of a
series designated First Mortgage Bonds 10% Series due 1995, all
of the original issue of $20,000,000 principal amount of bonds of
a series designated First Mortgage Bonds 9 1/4% Series due 1996,
all of the original issue of $7,000,000 principal amount of bonds
of a series designated First Mortgage Bonds 8% Series due 1997,
all of the original issue of $50,000,000 principal amount of
bonds of a series designated First Mortgage Bonds 9.57% Series
due 1996, all of the original issue of $10,000,000 principal
amount of bonds of a series designated First Mortgage Bonds 9.23%
Series due 1999, all of the original issue of $50,000,000 princi-
pal amount of bonds of a series designated First Mortgage Bonds
7.20% Series due 2017, all of the original issue of $30,000,000
principal amount of bonds of a series designated First Mortgage
Bonds 7.125% Series due 2022, all of the original amount of
$19,000,000 principal amount of bonds of a series designated
First Mortgage Bonds 6.05% Series due 2019, and all of the
original amount of $30,000,000 principal amount of bonds of a
series designated First Mortgage Bonds 7% Series due 2017; and
(ii) had outstanding and secured by the Original Indenture, as so
supplemented to the date hereof, $15,000,000 (of an original
issue of $15,000,000) principal amount of bonds of a series
designated First Mortgage Bonds 9.34% Series due 2019, and
$30,000,000 (of an original issue of $30,000,000) principal
amount of bonds of a series designated First Mortgage Bonds
8.375% Series due 2002; and
WHEREAS, Section 12.02 of the Original Indenture provides,
that in case PG Energy, pursuant to Section 12.01 of the Original
Indenture, shall merge into any other corporation, the corpora-
tion into, which PG Energy is merged shall cause a supplemental
indenture to be recorded with the Trustee, satisfactory to the
Trustee, whereby such successor corporation shall assume and
agree to pay, duly and punctually, the principal and interest of
the bonds issued under the Indenture in accordance with the
provisions of said bonds and coupons and the indenture, and shall
agree to perform and fulfill all the covenants and conditions of
the Indenture binding upon PG Energy; and shall succeed to and be
substituted for PG Energy, with the same effect as if it had been
named therein as the mortgagor company; and
WHEREAS, Section 12.03 of the Original Indenture provides,
that in case PG Energy, pursuant to Section 12.01 of the Original
Indenture, shall merge into any other corporation, neither the
Indenture nor any supplemental indenture executed pursuant to
Section 12.02 shall become and be a lien upon any of the
properties or franchises of the successor corporation, with the
exceptions specifically set forth in Section 12.03 in regard to
changes to the previously mortgaged property of PG Energy; and
WHEREAS, Section 14.01 of the Original Indenture provides,
among other things, that the Company, as successor Company to PG
Energy, when authorized by a resolution of its Board of
Directors, and the Trustee from time to time may enter into an
indenture or indentures supplemental thereto and which thereafter
shall form a part thereof, for among other things, the purposes
set forth in Sections 14.01(f),(h) and (k) of the Indenture,
provided that such modifications have been approved in accordance
with Article 15 of the Original Indenture by the holders of bonds
issued and outstanding under the Indenture; and
WHEREAS, Section 14.02 of the Original Indenture provides that
the Trustee is authorized to join with the Company, as successor
Company to PG Energy, in the execution of any such supplemental
indenture and
WHEREAS, all requirements of law and of the restated articles
of incorporation, as amended, and by-laws of the Company,
including all requisite action on the part of its directors and
officers, relating to the execution of this Thirty-First Supple-
mental Indenture have been complied with and observed, all
approvals of holders of bonds issued and outstanding under the
Indenture required pursuant to Article 15 of the Original Inden-
ture in connection with this Thirty-First Supplemental Indenture
have been obtained, and all things necessary to make this Thirty-
First Supplemental Indenture a valid and legally binding instru-
ment in accordance with its terms for the security of all bonds
from time to time issued under the Indenture have happened, been
done and been performed;
NOW THEREFORE, THIS THIRTY-FIRST SUPPLEMENTAL INDENTURE
WITNESSETH:
ARTICLE I.
MISCELLANEOUS
(S) 1.01 Pursuant to Section 12.02 of the Indenture, the
Company agrees that as of the date of the Merger, it assumes and
agrees to pay, duly and punctually, the principal and interest of
the bonds issued under the Indenture in accordance with the pro-
visions of said bonds and coupons and the Indenture, and agrees
to perform and fulfill all the covenants and conditions of the
Indenture binding upon PG Energy; and succeeds to and is substi-
tuted for PG Energy, with the same effect as if it had been named
as the mortgagor company. Pursuant to Section 12.03 of the
Indenture, neither the Indenture nor the Thirty-First Supplemen-
tal Indenture shall become and be a lien upon any of the
properties or franchises of the Company as the successor company
to PG Energy, other than the exceptions specifically set forth in
Section 12.03 with regard to changes to the previously mortgaged
property of PG Energy.
(S) 1.02 Section 4.10 of the Indenture is hereby deleted in
its entirety.
(S) 1.03 Section 4.11 of the indenture is hereby amended by
deleting all of the words that follow the phrase "or bonds of the
7% Series due 2017 shall be outstanding," and substituting the
following words:
"the Company will not (and with respect to clause (ii) will
not permit any Subsidiary to) directly or indirectly (i) declare
or pay any dividend on or make any distribution to the holders
of, any shares of its Capital Stock (other than dividends and
distributions payable solely in shares of its Capital Stock
(other than Redeemable Stock) or in options, warrants or other
rights to acquire in Capital Stock (other than Redeemable Stock))
or (ii) purchase, redeem or otherwise acquire or retire for
consideration any shares of the Company's Capital Stock (each of
the foregoing being referred to herein as a "Restricted Payment")
unless, at the time of and after giving effect to such Restricted
Payment, (1) no Default or Event of Default shall have occurred
and be continuing and (2) the aggregate amount of all such
Restricted Payments at the time of such Restricted Payment does
not exceed the sum of (A) 50% of the cumulative consolidated net
income, determined in accordance with generally accepted
accounting principles, of the Company from January 31, 1994
through the last day (the "Cut-Off Date") of the second fiscal
quarter during which the Company's Equity to Funded Indebtedness
Ratio exceeded 0.73 to 1 (or, if such consolidated net income is
a loss during such period, minus 100% of such loss) (B) 100% of
the cumulative consolidated net income of the Company after the
Cut-Off Date (or, if such consolidated net income is a loss
during such period, minus 100% of such loss), plus (B) the
aggregate net proceeds to the Company from sales of its Capital
Stock, (other than Redeemable Stock and Capital Stock sold to a
subsidiary) after January 31, 1994. This covenant will cease to
be applicable to the bonds if and to the extent this covenant is
no longer applicable to the Company's 7.60% Senior Notes due
2024, whether by way of defeasance, amendment or discharge.
'Capital Stock' means any and all shares, interests, partici-
pation, or other equivalents (however designated) whether now
outstanding or issued after the date of this Indenture.
'Equity to Funded Indebtedness Ratio' means the ratio of the
Company's total common stockholders' equity to the Company's
consolidated Funded Indebtedness.
'Funded Indebtedness' means indebtedness that matures more
than one year from the date of determination.
'Redeemable Stock' means any class or series of Capital Stock
that by its terms or otherwise is required to be redeemed prior
to the stated maturity of the securities or is redeemable at the
option of the holder thereof at any time prior to the stated
maturity of the securities."
(S) 1.04 Section 4.16 of the Indenture is deleted in its
entirety.
(S) 1.05 Section 4.21 of the Indenture is deleted in its
entirety.
(S) 1.06 Section 4.22 of the Indenture is amended to add the
following language at the end of that section:
"Notwithstanding anything contained with subdivision (i) of
Section 1.03, any certificate or supporting data delivered to
the Trustee pursuant to this Section 4.22 may be provided by
officers of the Company and not independent accountants or
engineers as defined in this Indenture."
(S) 1.07 A new section, Section 4.24, shall be added to the
Indenture which shall read as follows:
"The Company covenants and agrees that it shall not, so long
as any of the First Mortgage Bonds 8.375% Series due 2002 or the
First Mortgage Bonds 9.34% Series due 2019 are outstanding, issue
any additional bonds under this Indenture.
(S) 1.08 The amendments to the Indenture set forth in
(S) 1.01 - (S) 1.07 hereof shall take effect on the date of the
consummation of the Merger and the Trustee may conclusively rely
on the certificate of an officer of the Company that the Merger
has been consummated.
(S) 1.09 The Trustee accepts the trusts hereby declared and
provided and agrees to perform the same upon the terms and condi-
tions in the Original Indenture and in this Thirty-First Supple-
mental Indenture set forth. The Trustee shall not be responsible
in any manner whatsoever for or in respect of the validity or
sufficiency of this Thirty-First Supplemental Indenture or the
due execution hereof by the Company, or for in respect of the
recitals contained herein, all of which recitals are made by the
Company solely.
The Original Indenture as heretofore supplemented by thirty
supplemental indentures and as supplemented by this Thirty-First
Supplemental Indenture is in all respects ratified and confirmed
and the Original Indenture, together with the thirty-one inden-
tures supplemental thereto, shall be read, taken and construed as
one and the same indenture.
(S) 1.10 This Thirty-First Supplemental Indenture may be
executed in any number of counterparts, and all said counterparts
executed and delivered, each as an original, shall constitute but
one and the same instrument.
Southern Union Company does hereby constitute and appoint
Xxxxxx X. Xxxxxx to be its attorney for it, and in its name and
as and for its corporate act and deed to acknowledge this Thirty-
First Supplemental Indenture before any person having authority
by the laws of the State of Texas to take such acknowledgment, to
the intent that the same may be duly recorded, and U.S. Bank
Trust, National Association, does hereby constitute and appoint
Xxxxxxx X. Xxxxxxx to be its attorney for it, and in its name and
as and for its corporate act and deed to acknowledge this Thirty-
First Supplemental Indenture for any person having authority by
the laws of the State of New York to take such acknowledgment, to
the intent that the same may be duly recorded.
IN WITNESS WHEREOF, said Southern Union Company and said First
Trust of New York, National Association have caused this Supple-
mental Indenture to be signed in their respective corporate
names, and their respective corporate seals to be hereunto
affixed and attested by their respective officers thereunto duly
authorized, all as of the day and year first above written.
[Remainder of this Page Intentionally Left Blank]
[Signature Page for Thirty-First Supplemental Indenture]
SOUTHERN UNION COMPANY
By: XXXXXX X. XXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
(Corporate Seal)
Attest:
XXXXXX X. XXXXXX
----------------
Xxxxxx X. Xxxxxx, Secretary
US BANK TRUST,
NATIONAL ASSOCIATION
By: X. X. XXXXXXX
----------------------------------
Name: X. X. Xxxxxxx
Title: Vice President
(Corporate Seal)
Attest:
XXXXXXX X. XXXXXXXX
-------------------
Xxxxxxx X. Xxxxxxxx
Assistant Vice President
STATE OF TEXAS
COUNTY OF TRAVIS
ss:
BE IT REMEMBERED that on the 4th day of November 1999, before
the undersigned Notary Public in and for said County and said
State, commissioned for and residing in the County of Xxxxxx
personally came Xxxxxx X. Xxxxxx, who, being duly sworn according
to law, doth depose and say that be or she was personally present
and did see the common or corporate seal of the above-named
SOUTHERN UNION COMPANY affixed to the foregoing Supplemental
Indenture; that the seal so affixed is the common or corporate
seal of said SOUTHERN UNION COMPANY and was so affixed by
authority of said corporation as the act and deed thereof, that
the above-named Xxxxxx X. Xxxxxx is the Executive Vice President
and Chief Financial Officer of said corporation and did sign the
said Supplemental Indenture as such in the presence of this
deponent; that this deponent is the Senior Vice President - Legal
and Secretary of the said corporation and that the name of this
deponent, above signed in attestation of the due execution of the
said Supplemental Indenture, is in this deponent's own proper
handwriting.
XXXXXX X. XXXXXX
----------------
Xxxxxx X. Xxxxxx
Sworn and subscribed before me
the day and year aforesaid.
XXXX X. XXXXXXXXX
-----------------
Notary Public
NOTARIAL SEAL
Xxxx X. Xxxxxxxxx, NOTARY PUBLIC
STATE OF TEXAS, XXXXXX COUNTY
MY COMMISSION EXPIRES January 27, 2003
Member, Texas Association of Notaries
STATE OF TEXAS
COUNTY OF TRAVIS
ss:
I HEREBY CERTIFY that on this 4th day of November, A.D., 1999,
before me, a Notary Public in and for said County and said State,
commissioned for and residing in the county of Xxxxxx, personally
appeared Xxxxxx X. Xxxxxx, the attorney named in the foregoing
Supplemental indenture, and he or she, by virtue and in pursuance
of the authority therein conferred upon him or her, acknowledged
said Supplemental Indenture to be the act and deed of the said
SOUTHERN UNION COMPANY.
Witness my hand and notarial seal the day and year aforesaid.
XXXX X. XXXXXXXXX
-----------------
Notary Public
NOTARIAL SEAL
Xxxx X. Xxxxxxxxx, NOTARY PUBLIC
STATE OF TEXAS, XXXXXX COUNTY
MY COMMISSION EXPIRES January 27, 0000
XXXXX XX XXX XXXX
XXXXXX XX XXXXX
ss:
BE IT REMEMBERED that on the 4 day of November, A.D. 1999,
before the undersigned Notary Public in and for said County
commissioned for and residing in the County of Kings, personally
came Xxxxxxx X. Xxxxxxxx, who, being duly sworn according to law,
doth depose and say that he or she was personally present and did
see the common or corporate seal of the abovenamed U.S. BANK
TRUST, NATIONAL ASSOCIATION affixed to the foregoing Supplemental
Indenture; that the seal so affixed is the corporate seal of said
U.S. BANK TRUST, NATIONAL ASSOCIATION and was so affixed by
authority of said corporation as the act and deed thereof that
the above-named X. X. Xxxxxxx is the Vice President of said
corporation and did sign the said Supplemental Indenture as such
in the presence of this deponent; that this deponent is the
Assistant Vice President of the said corporation and that the
name of this deponent, above signed in attestation of the due
execution of the said Supplemental Indenture, is in this
deponent's own proper handwriting.
XXXXXXX X. XXXXXXXX
-------------------
Sworn and subscribed before me
the day and year aforesaid.
XXXXXXXX X. XXXXXX
------------------
Notary Public
NOTARIAL SEAL
XXXXXXXX X. XXXXXX
------------------
NOTARY PUBLIC, STATE OF NEW YORK
NO. 01005085376
QUALIFIED IN KINGS COUNTY
COMMISSION EXPIRES
September 22, 0000
XXXXX XX XXX XXXX
XXXXXX XX XXXXX
ss:
I HEREBY CERTIFY that on this 4 day November, A.D., 1999,
before me, a Notary Public in and for said County, commissioned
for the County of Kings, personally appeared Xxxxxxx X. Xxxxxxxx
attorney named in the foregoing Supplemental Indenture, and he or
she, by virtue and in pursuance of the authority therein con-
ferred upon him or her, acknowledged said Supplemental Indenture
to be the act and deed of the said U.S. BANK TRUST, NATIONAL
ASSOCIATION.
Witness my hand and notarial seal the day and year aforesaid.
XXXXXXXX X. XXXXXX
------------------
Notary Public
NOTARIAL SEAL
XXXXXXXX X. XXXXXX
------------------
NOTARY PUBLIC, STATE OF NEW YORK
NO. 01005085376
QUALIFIED IN KINGS COUNTY
COMMISSION EXPIRES
September 22, 2001
CERTIFICATE OF RESIDENCE
U.S. BANK TRUST, NATIONAL ASSOCIATION hereby certifies that
its precise name and address as Trustee hereunder are: U.S. BANK
TRUST, NATIONAL ASSOCIATION, 000 XXXX XXXXXX, XXXXX 0000, XXX
XXXX, XXX XXXX 00000.
By: X. X. XXXXXXX
---------------------
Name: X. X. Xxxxxxx
Title: Vice President
