EXHIBIT 4.5
SOUTHERN UNION COMPANY
AND
JPMORGAN CHASE BANK
as Trustee
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SUPPLEMENTAL INDENTURE NO. 1
Dated as of June 11, 2003
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THIS SUPPLEMENTAL INDENTURE No. 1 (this "Supplemental
Indenture"), dated as of June 11, 2003, is between SOUTHERN UNION COMPANY, a
Delaware corporation (the "Company"), and JPMORGAN CHASE BANK (formerly The
Chase Manhattan Bank, National Association), a New York banking corporation, as
Trustee (the "Trustee").
R E C I T A L S
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture dated as of January 31, 1994 (the "Base Indenture" and
together with this Supplemental Indenture, the "Indenture"), providing for the
issuance from time to time of series of the Company's Securities (as defined in
the Base Indenture);
WHEREAS, Section 901(7) of the Base Indenture provides for the
Company and the Trustee to enter into an indenture supplemental to the Base
Indenture to establish the form or terms of Securities of any series as
permitted by Sections 201 or 301 of the Base Indenture;
WHEREAS, pursuant to Section 301 of the Base Indenture, the Company
wishes to provide for the issuance of a new series of Securities to be known as
its 2.75% Senior Notes due 2008 (the "Senior Notes"), the form and terms of such
Senior Notes and the terms, provisions and conditions thereof to be set forth as
provided in this Supplemental Indenture;
WHEREAS, the Company has requested that the Trustee execute and deliver
this Supplemental Indenture and all requirements necessary to make this
Supplemental Indenture a valid, binding and enforceable instrument in accordance
with its terms, and to make the Senior Notes, when executed by the Company and
authenticated and delivered by the Trustee, the valid, binding and enforceable
obligations of the Company, have been done and performed, and the execution and
delivery of this Supplemental Indenture has been duly authorized in all
respects.
NOW, THEREFORE, in consideration of the covenants and agreements set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Article 1
DEFINITIONS
Section 1.01 Relation to Base Indenture. This Supplemental Indenture
constitutes an integral part of the Base Indenture.
Section 1.02. Definition Of Terms. For all purposes of this
Supplemental Indenture:
(a) Capitalized terms used herein without definition shall have the
meanings specified in the Base Indenture, or, if not defined in the
Base Indenture, in the Purchase Contract and Pledge Agreement or the
Remarketing Agreement;
(b) a term defined anywhere in this Supplemental Indenture has the same
meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not affect
interpretation;
(e) the following terms have the meanings given to them in this Article 1:
"Applicable Principal Amount" means the aggregate principal amount of
the Senior Notes that are components of Corporate Units.
"Business Day" shall have the meaning specified in the Purchase
Contract and Pledge Agreement.
"Corporate Units" shall have the meaning specified in the Purchase
Contract and Pledge Agreement.
"Coupon Rate" shall have the meaning set forth in Section 2.05(a).
"Depositary" means a clearing agency registered under Section 17A of
the Securities Exchange Act of 1934, as amended, that is designated to act as
Depositary for the Corporate Units pursuant to the Purchase Contract and Pledge
Agreement.
"Depositary Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Depositary effects
book entry transfers and pledges of securities deposited with the Depositary.
"Final Remarketing Price" shall have the meaning set forth in Section
8.02(b).
"Global Senior Notes" shall have the meaning set forth in Section 2.04.
"Interest Payment Date" shall have the meaning set forth in Section
2.05(b).
"Maturity Date" shall have the meaning specified in Section 2.02.
"Purchase Contract and Pledge Agreement" means the Purchase Contract
and Pledge Agreement, dated as of June 11, 2003, between the Company and
JPMorgan Chase Bank, as purchase contract agent, collateral agent, custodial
agent and securities intermediary, as amended from time to time.
"Purchase Contracts" and "Purchase Contract" shall have their
respective meanings specified in the Purchase Contract and Pledge Agreement.
"Purchase Contract Settlement Date" means August 16, 2006.
"Put Price" shall have the meaning set forth in Section 8.05(a).
"Put Right" shall have the meaning set forth in Section 8.05(a).
"Quotation Agent" means any primary U.S. government securities dealer
selected by the Company.
"Record Date" means, with respect to any Interest Payment Date for the
Senior Notes, the first Business Day of the calendar month in which such
Interest Payment Date falls; provided that the Company may, at its option,
select any other day as the Record Date for any Interest Payment Date so long as
such Record Date selected is more than one Business Day but less than sixty
Business Days prior to such Interest Payment Date.
"Redemption Amount" shall mean, for each Senior Note, an amount equal
to the product of the principal amount of that Senior Note and a fraction, the
numerator of which is the Treasury Portfolio Purchase Price and the denominator
of which is the Applicable Principal Amount.
"Redemption Price" shall mean, for each Senior Note, the Redemption
Amount plus any accrued and unpaid interest on such Senior Note to but excluding
the Tax Event Redemption Date.
"Remarketed Senior Notes" shall have the meaning set forth in Section
8.01(c).
"Remarketing Agent" shall mean the remarketing agent designated by the
Company under the Remarketing Agreement.
"Remarketing Agreement" means the Remarketing Agreement to be entered
into among the Company, Remarketing Agent, and JPMorgan Chase Bank, as Purchase
Contract Agent, as amended from time to time.
"Remarketing Price" shall have the meaning set forth in Section
8.02(a).
"Reset Effective Date" means the date three Business Days following the
date of a Successful Remarketing pursuant to which the Coupon Rate is reset to a
Reset Rate.
"Reset Rate" means the interest rate per annum, calculated in
accordance with Section 8.03 below, on the Senior Notes (i) in the case of a
Successful Remarketing prior to the Final Remarketing Date, as determined by the
Remarketing Agent as necessary to remarket the Remarketed Senior Notes at a
price per Remarketed Senior Note such that the aggregate price for the
Remarketed Senior Notes is equal to the Remarketing Price, and (ii) in the case
of a Successful Remarketing on the Final Remarketing Date, as the rate necessary
to remarket the Remarketed Senior Notes at a price per Remarketed Senior Note
such that the aggregate price for the Remarketed Senior Notes is equal to the
Final Remarketing Price.
"Separate Senior Notes" means Senior Notes that are no longer a
component of Corporate Units.
"Tax Event Redemption" means the redemption of the Senior Notes
pursuant to the terms hereof following the occurrence of a Tax Event.
"Tax Event Redemption Date" shall have the meaning set forth in Section
3.01.
"Tax Event" means the receipt by the Company of an opinion of counsel,
rendered by a law firm having a recognized national law practice, to the effect
that, as a result of any amendment to, change in or announced proposed change in
the laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative decision, pronouncement, judicial decision or action
interpreting or applying such laws or regulations, which amendment or change is
effective or which proposed change, pronouncement, action or decision is
announced on or after the date hereof, there is more than an insubstantial
increase in the risk that interest payable by the Company on the Senior Notes is
not, or within 90 days of the date of such opinion, will not be, deductible by
the Company, in whole or in part, for United States federal income tax purposes.
"Treasury Portfolio" means a portfolio of (1) U.S. treasury securities
(or principal or interest strips thereof) that mature on or prior to August 15,
2006 in an aggregate amount equal to the Applicable Principal Amount, and (2)
(x) in the case of a Successful Remarketing prior to the Final Remarketing Date,
for the scheduled Interest Payment Date on the Purchase Contract Settlement
Date, U.S. treasury securities (or principal or interest strips thereof) that
mature on or prior to August 15, 2006 in an aggregate amount equal to the
aggregate interest payment (assuming no reset of the interest rate) that would
have been due on the Purchase Contract Settlement Date on the Applicable
Principal Amount, and (y) in the case of a Tax Event Redemption, for each
scheduled Interest Payment Date that occurs after the Tax Event Redemption Date
to and including the Purchase Contract Settlement Date, U.S. treasury securities
(or principal or interest strips thereof) that mature on or prior to the
business day immediately preceding such scheduled Interest Payment Date in an
aggregate amount equal to the aggregate interest payment (assuming no reset of
the interest rate) that would have been due on such scheduled Interest Payment
Date on the Applicable Principal Amount.
"Treasury Portfolio Purchase Price" means the lowest aggregate ask-side
price quoted by a Primary Treasury Dealer to the Quotation Agent between 9:00
a.m. and 11:00 a.m. (New York City time) (i) in the case of a Tax Event
Redemption, on the third Business Day immediately preceding the Tax Event
Redemption Date for the purchase of the applicable Treasury Portfolio for
settlement on the Tax Event Redemption Date, and (ii) in the case of a
Successful Remarketing prior to the Final Remarketing Date, on the date of such
Successful Remarketing for the purchase of the applicable Treasury Portfolio for
settlement on the third Business Day immediately following the date of such
Successful Remarketing.
The terms "Company," "Trustee," "Indenture," "Base Indenture" and
"Senior Notes" shall have the respective meanings set forth in the recitals to
this Supplemental Indenture and the paragraph preceding such recitals.
Article 2
GENERAL TERMS AND CONDITIONS OF THE SENIOR NOTES
Section 2.01 . Designation and Principal Amount. There is hereby
authorized a series of Securities designated as 2.75% Senior Notes due
August 16, 2008 limited in aggregate principal amount to $125,000,000. The
Senior Notes may be issued from time to time upon written order of the Company
for the authentication and delivery of Senior Notes pursuant to Section 303 of
the Base Indenture.
Section 2.02 . Maturity. Unless a Tax Event Redemption occurs prior to the
Maturity Date (defined below), the date upon which the Senior Notes shall become
due and payable at final maturity, together with any accrued and unpaid
interest, is August 16, 2008 (the "Maturity Date").
Section 2.03 . Form, Payment and Appointment. Except as provided in Section
2.04, the Senior Notes shall be issued in fully registered, certificated form,
bearing identical terms. Principal of and interest on the Senior Notes will be
payable, the transfer of such Senior Notes will be registrable, and such Senior
Notes will be exchangeable for Senior Notes of a like aggregate principal amount
bearing identical terms and provisions, at the office or agency of the Company
maintained for such purpose in the Borough of Manhattan, The City of New York,
which shall initially be the Corporate Trust Office of the Trustee; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the Holder at such address as shall appear in the Security
Register or by wire transfer to an account appropriately designated by the
Holder entitled to payment.
No service charge shall be made for any registration of transfer or
exchange of the Senior Notes, but the Company may require payment from the
Holder of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith.
The Security Registrar and Paying Agent for the Senior Notes shall
initially be the Trustee.
The Senior Notes shall be issuable in denominations of $50 and integral
multiples of $50 in excess thereof.
Section 2.04 . Global Senior Notes. Senior Notes that are no longer a
component of the Corporate Units and released from the Collateral Account (as
defined in the Purchase Contract and Pledge Agreement) will be issued in
permanent global form (a "Global Senior Note"), and if issued as one or more
Global Senior Notes, the Depositary shall be The Depository Trust Company or
such other depositary as any officer of the Company may from time to time
designate. Upon the creation of Treasury Units or the recreation of Corporate
Units, an appropriate annotation shall be made on the Schedule of Increases and
Decreases on the Global Senior Notes held by the Depositary. Unless and until
such Global Senior Note is exchanged for Senior Notes in certificated form,
Global Senior Notes may be transferred, in whole but not in part, and any
payments on the Senior Notes shall be made, only to the Depositary or a nominee
of the Depositary, or to a successor Depositary selected or approved by the
Company or to a nominee of such successor Depositary.
Section 2.05 . Interest. (a) The Senior Notes will bear interest initially
at the rate of 2.75% per year (the "Coupon Rate") compounded quarterly from the
original date of issuance through and including the earlier of (i) the Maturity
Date and (ii) the day immediately preceding any Reset Effective Date. In the
event of a Successful Remarketing of the Senior Notes, the Coupon Rate will be
reset by the Remarketing Agent at the appropriate Reset Rate with effect from
the related Reset Effective Date, as set forth under Section 8.03. If the Coupon
Rate is so reset, the Senior Notes will bear interest at the Reset Rate from the
related Reset Effective Date until the principal thereof and interest thereon is
paid or duly made available for payment and shall bear interest, to the extent
permitted by law, compounded semi-annually, on any overdue principal and payment
of interest at the Coupon Rate through and including the day immediately
preceding the Reset Effective Date and at the Reset Rate thereafter.
(b) Interest on the Senior Notes shall be payable initially quarterly in
arrears on February 16, May 16, August 16 and November 16 of each year (each, an
"Interest Payment Date"), commencing August 16, 2003, to the Person in whose
name such Senior Note, or any predecessor Senior Note, is registered at the
close of business on the Record Date for such Interest Payment Date. Following a
Successful Remarketing of the Senior Notes interest on the Senior Notes shall be
payable semi-annually in arrears on, and the Interest Payment Dates shall be,
February 16 and August 16 of each year, commencing February 16, 2007. Interest
on the Senior Notes shall accrue from June 11, 2003.
(c) The amount of interest payable for any full quarterly period, or,
following a Successful Remarketing, for any full semi-annual period, will be
computed on the basis of a 360-day year consisting of twelve 30-day months. The
amount of interest payable for any period shorter than a full quarterly or
semi-annual period, as the case may be, for which interest is computed will be
computed on the basis of a 30-day month and, for any period less than a month,
on the basis of the actual number of days elapsed per 30-day month. In the event
that any scheduled Interest Payment Date falls on a day that is not a Business
Day, then payment of interest payable on such Interest Payment 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 calendar year, then such payment will be made on the preceding
Business Day.
Section 2.06 . No Defeasance. The provisions of Article 14 of the Base
Indenture shall not apply to the Senior Notes.
Section 2.07 . No Sinking Fund. The Senior Notes are not entitled to the
benefit of any sinking fund.
Article 3
REDEMPTION OF THE SENIOR NOTES
Section 3.01 . Tax Event Redemption. If a Tax Event shall occur and be
continuing, the Company may, at its option, redeem the Senior Notes in whole,
but not in part, on any Interest Payment Date prior to the earlier of the date
of a Successful Remarketing or the Purchase Contract Settlement Date, at a price
per Senior Note equal to the Redemption Price, payable on the date of redemption
(the "Tax Event Redemption Date") in accordance with the redemption procedures
set forth in Section 3.02 below. If the Company so elects to redeem the Senior
Notes, the Company shall appoint the Quotation Agent to assist the Company in
determining the Treasury Portfolio Purchase Price. Notice of any Tax Event
Redemption will be mailed by the Company (with a copy to the Trustee) at least
30 days but not more than 60 days before the Tax Event Redemption Date to each
registered Holder of the Senior Notes at its registered address. In addition,
the Company shall notify the Collateral Agent in writing that a Tax Event has
occurred and that the Company intends to redeem the Senior Notes on the Tax
Event Redemption Date. Unless the Company defaults in the payment of the
Redemption Price, on and after the Tax Event Redemption Date, (a) interest shall
cease to accrue on the Senior Notes, (b) the Senior Notes shall become due and
payable at the Redemption Price, and (c) the Senior Notes shall be void and all
rights of the Holders in respect of the Senior Notes shall terminate and lapse
(other than the right to receive the Redemption Price upon surrender of such
Senior Notes but without interest on such Redemption Price). Following the
notice of a Tax Event Redemption, neither the Company nor the Trustee shall be
required to register the transfer of or exchange the Senior Notes to be
redeemed.
Section 3.02 . Redemption Procedures. On or prior to the Tax Event
Redemption Date, the Company shall deposit with the Trustee immediately
available funds in an amount sufficient to pay, on the Tax Event Redemption
Date, the aggregate Redemption Price for all outstanding Senior Notes. In
exchange for any Senior Notes surrendered for redemption on or after the Tax
Event Redemption Date, the Trustee shall pay an amount equal to the Redemption
Price (a) to the Collateral Agent, in the case of Senior Notes that are included
in Corporate Units, which amount shall be applied by the Collateral Agent in
accordance with the terms of the Purchase Contract and Pledge Agreement, and (b)
to the holders of the Separate Senior Notes, in the case of Separate Senior
Notes.
Article 4
FORM OF SENIOR NOTE
Section 4.01 . Form Of Senior Note. The Senior Notes and the Trustee's
Certificate of Authentication to be endorsed thereon are to be substantially in
the forms attached as Exhibit A hereto, with such changes therein as the
officers of the Company executing the Senior Notes (by manual or facsimile
signature) may approve, such approval to be conclusively evidenced by their
execution thereof.
Article 5
ORIGINAL ISSUE OF SENIOR NOTES
Section 5.01 . Original Issue Of Senior Notes. Senior Notes in the
aggregate principal amount of $125,000,000 may from time to time, upon execution
of this Supplemental Indenture, be executed by the Company and 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 Company pursuant
to Section 303 of the Base Indenture without any further action by the Company
(other than as required by the Base Indenture).
Article 6
ORIGINAL ISSUE DISCOUNT
Section 6.01 . Original Issue Discount. The Company shall file with the
Trustee promptly at the end of each calendar year (i) a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on Senior Notes that are Outstanding as of the end of
the year and (ii) such other specific information relating to such original
issue discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.
Article 7
MISCELLANEOUS
Section 7.01 . Ratification Of Indenture. The Indenture, as supplemented by
this Supplemental Indenture, is in all respects ratified and confirmed, and this
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
Section 7.02 . Trustee Not Responsible For Recitals. The recitals herein
contained are made by the Company and not by the Trustee, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
Section 7.03 . New York Law To Govern. THIS SUPPLEMENTAL INDENTURE AND EACH
SENIOR NOTE SHALL BE DEEMED TO BE CONTRACTS MADE UNDER THE LAWS OF THE STATE OF
NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 7.04 . Separability. In case any one or more of the provisions
contained in this Supplemental Indenture or in the Senior Notes shall for any
reason be held to be invalid, illegal or unenforceable in any respect, then, to
the extent permitted by law, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Supplemental Indenture or of the
Senior Notes, but this Supplemental Indenture and the Senior Notes shall be
construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
Section 7.05 . Counterparts. This 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.
Article 8
REMARKETING
Section 8.01 . Remarketing Procedures. (a) Unless a Tax Event Redemption or
a Successful Remarketing has occurred prior to the applicable Remarketing Date,
the Company shall engage the Remarketing Agent pursuant to the Remarketing
Agreement for the Remarketing of the Senior Notes. The Company will request, not
later than seven nor more than 15 calendar days prior to the applicable
Remarketing Date, that the Depositary or its nominee notify the Beneficial
Owners or Depositary Participants holding Separate Senior Notes, Corporate Units
and Treasury Units of the procedures to be followed in the applicable
Remarketing.
(b) Each Holder of Separate Senior Notes may elect to have Separate Senior
Notes held by such Holder remarketed in any Remarketing. A Holder making such an
election must, pursuant to the Purchase Contract and Pledge Agreement, notify
the Custodial Agent and deliver such Separate Senior Notes to the Custodial
Agent prior to 5:00 P.M. (New York City time) on or prior to the fifth Business
Day immediately preceding the applicable Remarketing Date (but no earlier than
the Interest Payment Date immediately preceding the applicable Remarketing
Date). Any such notice and delivery may not be conditioned upon the level at
which the Reset Rate is established in the Remarketing. Any such notice and
delivery may be withdrawn prior to 5:00 P.M. (New York City time) on or prior to
the fifth Business Day immediately preceding the applicable Remarketing Date in
accordance with the provisions set forth in the Pledge Agreement. Any such
notice and delivery not withdrawn by such time will be irrevocable with respect
to such Remarketing. Pursuant to Section 5.02 of the Purchase Contract and
Pledge Agreement, promptly after 11:00 A.M., New York City time, on the Business
Day immediately preceding the applicable Remarketing Date, the Custodial Agent,
based on the notices and deliveries received by it prior to such time, shall
notify the Remarketing Agent of the principal amount of Separate Senior Notes to
be tendered for remarketing and shall cause such Separate Senior Notes to be
presented to the Remarketing Agent. Under Section 5.02 of the Purchase Contract
Agreement, certain Senior Notes that are components of Corporate Units will be
deemed tendered for Remarketing and will be remarketed in accordance with the
terms of the Remarketing Agreement.
(c) The right of each Holder of Senior Notes that are included in Corporate
Units to have such Senior Notes, and each Holder of Separate Senior Notes to
have any Separate Senior Notes (together, the "Remarketed Senior Notes"),
remarketed and sold on any Remarketing Date shall be limited to the extent that
(i) the Remarketing Agent conducts a Remarketing pursuant to the terms of the
Remarketing Agreement, (ii) a Tax Event Redemption has not occurred prior to
such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser
or purchasers for Remarketed Senior Notes at the Remarketing Price or the Final
Remarketing Price, as the case may be, and (iv) the purchaser or purchasers
deliver the purchase price therefor to the Remarketing Agent as and when
required.
(d) Neither the Trustee, the Company nor the Remarketing Agent shall be
obligated in any case to provide funds to make payment upon tender of Senior
Notes for remarketing.
Section 8.02 . Remarketing. (a) Unless a Tax Event Redemption has occurred
prior to the Initial Remarketing Date, on the Initial Remarketing Date, the
Remarketing Agent shall, pursuant and subject to the terms of the Remarketing
Agreement, use its reasonable efforts to remarket the Remarketed Senior Notes at
a price (the "Remarketing Price") equal to approximately 100.25% of the sum of
the Treasury Portfolio Purchase Price and the Separate Senior Note Purchase
Price.
(b) In the case of a Failed Initial Remarketing and unless a Tax Event
Redemption has occurred prior to the Final Remarketing Date, on the Final
Remarketing Date, the Remarketing Agent shall use its reasonable efforts to
remarket the Remarketed Senior Notes at a price (the "Final Remarketing Price")
equal to approximately 100.25% of the aggregate principal amount of the
Remarketed Senior Notes. It is understood and agreed that Remarketing on any
Remarketing Date will be considered successful and no further attempts will be
made if the resulting proceeds are at least 100.25% of the sum of the Treasury
Portfolio Purchase Price and the Separate Senior Note Purchase Price, in the
case of the Initial Remarketing, or 100.25% of the aggregate principal amount of
the Remarketed Senior Notes in the case of the Final Remarketing.
Section 8.03 . Reset Rate. (a) In connection with each Remarketing, the
Remarketing Agent shall determine the Reset Rate (rounded to the nearest
one-thousandth (0.001) of one percent per annum) that the Remarketed Senior
Notes should bear in order to have an aggregate market value equal to the
Remarketing Price or the Final Remarketing Price, as the case may be, and that
in the sole discretion of the Remarketing Agent will enable it to remarket all
of the Remarketed Senior Notes at the Remarketing Price or Final Remarketing
Price, as the case may be, in such Remarketing.
(b) Anything herein to the contrary notwithstanding, the Reset Rate shall
not exceed the maximum rate permitted by applicable law and the Remarketing
Agent shall have no obligation to determine whether there is any limitation
under applicable law on the Reset Rate or, if there is any such limitation, the
maximum permissible Reset Rate on the Senior Notes and they shall rely solely
upon written notice from the Company (which the Company agrees to provide prior
to the eighth Business Day before the Initial Remarketing Date) as to whether or
not there is any such limitation and, if so, the maximum permissible Reset Rate.
(c) In the event of a Failed Remarketing or if no Senior Notes are included
in Corporate Units and none of the holders of the Separate Senior Notes elect to
have their Senior Notes remarketed in any Remarketing, the applicable interest
rate on the Senior Notes will not be reset and will continue to be the Coupon
Rate.
(d) In the event of a Successful Remarketing, the Coupon Rate shall be
reset at the Reset Rate as determined by the Remarketing Agent under the
Remarketing Agreement.
Section 8.04 . Failed Remarketing. (a) If, by 4:00 p.m. (New York City
time) on any Remarketing Date, the Remarketing Agent is unable to remarket all
of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing
Price, as the case may be, pursuant to the terms and conditions hereof, a Failed
Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so
advise, by telephone the Depositary, the Purchase Contract Agent and the
Company. Promptly following any Failed Remarketing, the Remarketing Agent shall
return Separate Senior Notes submitted for remarketing, if any, to the Custodial
Agent for distribution to the appropriate Holders pursuant to the terms of the
Purchase Contract and Pledge Agreement.
(b) The Company shall cause a notice of such Failed Remarketing to be
published in a daily newspaper in the English language of general circulation in
the City of New York, which is expected to be The Wall Street Journal.
Section 8.05 . Put Right. (a) If there has not been a Successful
Remarketing prior to the Purchase Contract Settlement Date, Holders of Separate
Senior Notes and Holders of Senior Notes that are a component of Corporate Units
will, subject to this Section 8.05, have the right (the "Put Right") to require
the Company to purchase their Senior Notes, on the Purchase Contract Settlement
Date, at a price per Senior Note equal to $50.00 plus accrued and unpaid
interest to but excluding the Purchase Contract Settlement Date (the "Put
Price"); provided, however, that as of the Purchase Contract Settlement Date,
Holders of Senior Notes that are part of a Corporate Unit with respect to which
a Put Right has been automatically exercised under clause (b) below shall be
deemed to have elected to pay the Purchase Price for the shares of Common Stock
to be issued under the related Purchase Contract from a portion of the Proceeds
of the Put Right of such Senior Notes equal to the Purchase Price, less any
Deferred Contract Adjustment Payments, in full satisfaction of such Holders'
obligations under the Purchase Contracts, and any remaining amount of the Put
Price following satisfaction of the related Purchase Contract will be paid to
such Holder.
(b) The Put Right of Holders of Senior Notes that are part of Corporate
Units will be automatically exercised unless such Holders (1) prior to 5:00
P.M., New York City time, on the fifth Business Day immediately preceding the
Purchase Contract Settlement Date, provide written notice to the Purchase
Contract Agent of their intention to settle the related Purchase Contract with
separate cash, and (2) on or prior to 5:00 P.M., New York City time, on the
fourth Business Day immediately preceding the Purchase Contract Settlement Date,
deliver to the Collateral Agent $50 in cash per Purchase Contract, in each case
pursuant to the Purchase Contract Agreement. The Put Price for such Holders of
Senior Notes shall be applied in accordance with Section 8.05(c) above.
(c) The Put Right of a Holder of a Separate Senior Note shall only be
exercisable upon delivery of a notice to the Trustee by such Holder on or prior
to the second Business Day prior to the Purchase Contract Settlement Date. On or
prior to the Purchase Contract Settlement Date, the Company shall deposit with
the Trustee immediately available funds in an amount sufficient to pay, on the
Purchase Contract Settlement Date, the aggregate Put Price of all Separate
Senior Notes with respect to which a Holder has exercised a Put Right. In
exchange for any Separate Senior Notes surrendered pursuant to the Put Right,
the Trustee shall then distribute such amount to the Holders of such Separate
Senior Notes.
Section 8.06 . Additional Event of Default. In addition to the events
listed as Events of Default in Section 501 of the Base Indenture, it shall be an
additional Event of Default with respect to the Senior Notes, if the Company
shall not have satisfied its obligation to pay the Put Price when due with
respect to any Separate Senior Note following exercise of the Put Right in
accordance with Section 8.05.
Article 9
TAX TREATMENT
Section 9.01 . Tax Treatment. The Company agrees, and by acceptance of a
Corporate Unit, each holder of a Corporate Unit will be deemed to have agreed
(1) for United States federal, state and local income and franchise tax purposes
to treat the acquisition of a Corporate Unit as the acquisition of the Senior
Note and the Purchase Contract constituting the Corporate Unit and (2) to treat
the Senior Note as indebtedness for United States federal, state and local
income and franchise tax purposes. A Holder of Senior Notes may obtain the
comparable yield and projected payment schedule for the Senior Notes, determined
by the Company pursuant to Treas. Reg. Sec. 1.1275-4, by submitting a written
request for such information to the Company at the following address: Southern
Union Company, Xxx XXX Xxxxxx, Xxxxxx Xxxxx, Xxxxxx-Xxxxx, Xxxxxxxxxxxx 00000
(fax: 000-000-0000), Attention: Xxxxxx X. Xxxxx.
Article 10
MISCELLANEOUS
Section 10.01 . Responsibility For Recitals, Etc. The recitals herein and
in the Senior Notes (except in the Trustee's certificate of authentication)
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no representations
as to the validity or sufficiency of this Supplemental Indenture or of the
Senior Notes. The Trustee shall not be accountable for the use or application by
the Company of the Senior Notes or of the proceeds thereof.
Section 10.02 . Successors And Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of the
Company and the Trustee.
Section 10.03 . Governing Law. THIS SUPPLEMENTAL INDENTURE AND THE SENIOR
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PROVISIONS
THEREOF. The Company and the Trustee hereby submit to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York state court sitting in New York City for the
purposes of all legal proceedings arising out of or relating to this
Supplemental Indenture or the Senior Notes. The Company and the Trustee
irrevocably waive to the fullest extent permitted by applicable law, any
objection which they may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
Section 10.04 . Counterparts. This Supplemental Indenture may be executed
in any number of counterparts by the parties hereto on separate counterparts,
each of which, when so executed and delivered, shall be deemed an original, but
all such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, as of the day and year first written above.
SOUTHERN UNION COMPANY
By: _______________________________
Name:
Title:
Attest:
-----------------------
Name:
Title:
JPMORGAN CHASE BANK, as Trustee
By: _______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Attest:
-----------------------
Name: X. X'Xxxxx
Title: Vice President
EXHIBIT A
[IF THIS SENIOR NOTE IS TO BE A GLOBAL SECURITY, INSERT:]
THIS SENIOR NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY OR A NOMINEE OF THE DEPOSITORY TRUST COMPANY. THIS SENIOR NOTE IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY TRUST COMPANY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TRUST COMPANY TO A NOMINEE OF THE DEPOSITORY TRUST COMPANY OR BY A
NOMINEE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITORY TRUST COMPANY OR
ANOTHER NOMINEE OF THE DEPOSITORY TRUST COMPANY.
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 IN 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.
SOUTHERN UNION COMPANY
2.75% Senior Notes due August 16, 2008 No.
$______________ CUSIP No. 000000000
SOUTHERN UNION COMPANY, a corporation organized and existing under the laws of
Delaware (hereinafter called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to [Cede & Co.]/[JPMorgan Chase Bank, as Purchase
Contract Agent], or its registered assigns, the principal sum of up to ONE
HUNDRED AND TWENTY-FIVE MILLION ($125,000,000), as set forth in the Schedule of
Increases or Decreases In Senior Note attached hereto, on August 16, 2008 (such
date is hereinafter referred to as the "Maturity Date"), and to pay interest
thereon from June 11, 2003 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, quarterly in arrears on
February 16, May 16, August 16 and November 16 of each year, commencing August
16, 2003, at the rate of 2.75% per annum through and including the day
immediately preceding the Reset Effective Date, if any, and thereafter
semi-annually in arrears on February 16 and August 16 of each year, commencing
February 16, 2007, at the Reset Rate, in each case on the basis of a 360-day
year consisting of twelve 30-day months, until the principal hereof is paid or
duly provided for or made available for payment, and (to the extent that the
payment of such interest shall be legally enforceable) to pay interest,
compounded quarterly, at the rate of 2.75% per annum on any overdue principal
and payment of interest through and including the day immediately preceding the
Reset Effective Date, if any, and thereafter, compounded semi-annually, at the
Reset Rate, if any. The amount of interest payable for any period shorter than a
full quarterly or semi-annual period, as the case may be, for which interest is
computed will be computed on the basis of a 30-day month and, for any period
less than a month, on the basis of the actual number of days elapsed per 30-day
month. The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Senior Note (or one or more Predecessor Senior Notes) is
registered at the close of business on the Record Date for such Interest Payment
Date.
Payment of the principal of and interest on this Senior Note will be made at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, which shall initially be the Corporate Trust
Office of the Trustee, in such coin or currency of the United States of America
as 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 Company by check mailed to the Holder at such address as shall appear in the
Security Register or by wire transfer to an account appropriately designated by
the Holder entitled to payment.
Reference is hereby made to the further provisions of this Senior Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Senior Note shall
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: _____________
SOUTHERN UNION COMPANY
By:_____________________
Name:
Title:
Attest:
By: ______________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the within mentioned Indenture.
Dated: _____________
JPMORGAN CHASE BANK,
as Trustee
By: _________________
Authorized Officer
FORM OF REVERSE OF SENIOR NOTE
This Senior Note is one of a duly authorized issue of securities of the
Company (herein called the "Senior Notes"), issued and to be issued in one or
more series under an Indenture, dated as of January 31, 1994, between the
Company and JPMorgan Chase Bank, as Trustee, (herein called the "Trustee", which
term includes any successor trustee) (the "Base Indenture"), as supplemented by
the Supplemental Indenture No. 1 between the Company and the Trustee (the
"Supplemental Indenture" and together with the Base Indenture, the "Indenture"),
to which Indenture reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Senior Notes and of the terms upon which the
Senior Notes are, and are to be, authenticated and delivered. This Senior Note
is one of the series designated on the face hereof, limited in aggregate
principal amount to $125,000,000.
If a Tax Event shall occur and be continuing, the Company may, at its
option, redeem the Senior Notes of this series in whole, but not in part, on any
Interest Payment Date prior to the earlier of the date of a Successful
Remarketing or the Purchase Contract Settlement Date, at a price per Senior Note
equal to the Redemption Price as set forth in the Indenture.
If there has not been a Successful Remarketing prior to the Purchase
Contract Settlement Date, the holders of Senior Notes will have the right to
require the Company to purchase their Senior Notes on the Purchase Contract
Settlement Date, all as more fully described in the Supplemental Indenture.
The Senior Notes are not entitled to the benefit of any sinking fund
and will not be subject to defeasance.
If an Event of Default with respect to Senior Notes of this series
shall occur and be continuing, the principal of the Senior Notes of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Senior Notes at any time by the
Company and the Trustee with the consent of the Holders of a majority in
principal amount of the Senior Notes at the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in principal
amount of the Senior Notes at the time Outstanding, on behalf of the Holders of
all Senior Notes, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Senior Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Senior Note and of any Senior Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Senior Note.
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 Company,
which is absolute and unconditional, to pay the principal of 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
set forth, the transfer of this Senior Note is registrable in the Securities
Register, upon surrender of this Senior Note for registration of transfer at the
office or agency of the Company in any place where the principal of and interest
on this Senior Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Securities
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, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Senior Notes of this series are issuable only in registered form
without coupons in denominations of $50 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Senior Notes of this series are exchangeable for a like aggregate principal
amount of Senior Notes of this series 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 Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Senior Note for registration of
transfer, the Company, the Trustee and any agent of the Company 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 Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Senior Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Company agrees, and by acceptance of a Corporate Unit, each holder
of a Corporate Unit will be deemed to have agreed (1) for United States federal,
state and local income and franchise tax purposes to treat the acquisition of a
Corporate Unit as the acquisition of the Senior Note and the Purchase Contract
constituting the Corporate Unit and (2) to treat the Senior Note as indebtedness
for United States federal, state and local income and franchise tax purposes. A
Holder of Senior Notes may obtain the comparable yield and projected payment
schedule for the Senior Notes, determined by the Company pursuant to Treas. Reg.
Sec. 1.1275-4, by submitting a written request for it to the Company at the
following address: Southern Union Company, Xxx XXX Xxxxxx, Xxxxxx Xxxxx,
Xxxxxx-Xxxxx, Xxxxxxxxxxxx 00000 (fax: 000-000-0000), Attention: Xxxxxx X.
Xxxxx.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Senior Note to:
______________________________________________________________________________
______________________________________________________________________________
(Insert assignee's social security or tax identification number)
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
agent to transfer this Senior Note on the books of the Company. The agent may
substitute another to act for him or her.
Date: ____________________
Signature:
________________________
Signature Guarantee:
----------------------
(Sign exactly as your name appears on the other side of this Senior Note)
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
SCHEDULE OF INCREASES OR DECREASES IN SENIOR NOTE
The following increases or decreases in a part of this Senior Note have been
made:
Amount of Amount of Principal amount
decrease in increase in of this Senior Signature of
principal amount principal amount Note following authorized
of this Senior of this Senior such decrease officer of
Date Note Note (or increase) Trustee
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