ENBRIDGE ENERGY PARTNERS, L.P. as Issuer and U.S. BANK NATIONAL ASSOCIATION as Trustee 4.375% NOTES DUE 2020 THIRTEENTH SUPPLEMENTAL INDENTURE Dated as of October 6, 2015
Exhibit 4.1
ENBRIDGE ENERGY PARTNERS, L.P.
as Issuer
and
U.S. BANK NATIONAL ASSOCIATION
as Trustee
$500,000,000
4.375% NOTES DUE 2020
THIRTEENTH
SUPPLEMENTAL
INDENTURE
—————
Dated as of October 6, 2015
TABLE OF CONTENTS
Page | |||
ARTICLE I | ESTABLISHMENT OF NEW SERIES | 1 | |
Section 1.01. | Establishment of New Series | 1 | |
ARTICLE II | DEFINITIONS AND INCORPORATION BY REFERENCE | 2 | |
Section 2.01. | Definitions | 2 | |
ARTICLE III | THE NOTES | 2 | |
Section 3.01. | Form | 2 | |
Section 3.02. | Issuance of Additional Notes | 2 | |
Section 3.03. | Transfer of Securities | 2 | |
ARTICLE IV | REDEMPTION | 3 | |
Section 4.01. | Optional Redemption | 3 | |
Section 4.02. | Mandatory Redemption | 3 | |
ARTICLE V | COVENANT SUPPLEMENTS | 3 | |
Section 5.01. | Covenants of the Partnership | 3 | |
ARTICLE VI | ADDITIONAL EVENT OF DEFAULT | 3 | |
Section 6.01. | Events of Default | 3 | |
ARTICLE VII | MISCELLANEOUS | 4 | |
Section 7.01. | Integral Part | 4 | |
Section 7.02. | Adoption, Ratification and Confirmation | 4 | |
Section 7.03. | Counterparts | 4 | |
Section 7.04. | Governing Law | 4 | |
Section 7.05. | Trustee Makes No Representation | 4 |
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THIRTEENTH SUPPLEMENTAL INDENTURE dated as of October 6, 2015 (this “Supplemental Indenture”), between Enbridge Energy Partners, L.P., a Delaware limited partnership (the “Partnership” or the “Issuer”), and U.S. Bank National Association, a national banking association, as successor trustee to SunTrust Bank (the “Trustee”),
WHEREAS, the Issuer has heretofore entered into an Indenture, dated as of May 27, 2003 (the “Original Indenture”), with the Trustee;
WHEREAS, the Original Indenture, as supplemented by this Supplemental Indenture, is herein called the “Indenture”;
WHEREAS, under the Original Indenture, the form and terms of a new series of Debt Securities may at any time be established by a supplemental Indenture executed by the Issuer and the Trustee;
WHEREAS, the Issuer proposes to create under the Indenture a new series of Debt Securities;
WHEREAS, additional Debt Securities of other series hereafter established, except as may be limited in the Original Indenture as at the time supplemented and modified, may be issued from time to time pursuant to the Original Indenture as at the time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution and delivery of this Supplemental Indenture and to make it a valid and binding obligation of the Issuer have been done or performed.
NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Section 1.01. Establishment of New Series.
(a) There is hereby established a new series of Debt Securities to be issued under the Indenture, to be designated as the Issuer’s 4.375% Notes due 2020 (the “Notes”).
(b) There are to be authenticated and delivered $500,000,000 principal amount of Notes on the Issue Date, and from time to time thereafter there may be authenticated and delivered an unlimited principal amount of Additional Notes.
(c) The Notes shall be issued initially in the form of one or more Global Securities in substantially the form set out in Exhibit A hereto. The Depositary with respect to the Notes shall be The Depository Trust Company.
(d) Initially, there shall be no Subsidiary Guarantors. Each Note shall be dated the date of authentication thereof and shall bear interest as provided in paragraph 1 of the form of Note in Exhibit A hereto.
(e) If and to the extent that the provisions of the Original Indenture are duplicative of, or in contradiction with, the provisions of this Supplemental Indenture, the provisions of this Supplemental Indenture shall govern.
ARTICLE II
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 2.01. Definitions. All capitalized terms used herein and not otherwise defined below shall have the meanings ascribed thereto in the Original Indenture. The following are additional definitions used in this Supplemental Indenture:
“Additional Notes” has the meaning assigned to it in Section 3.02 hereof.
“Notes” has the meaning assigned to it in Section 1.01(a) hereof.
ARTICLE III
Section 3.01. Form. The Notes shall be issued initially in the form of one or more Global Securities, and the Notes and Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto, the terms of which are incorporated in and made a part of this Supplemental Indenture, and the Issuer and the Trustee, by their execution and delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.
Section 3.03. Transfer of Securities.
(a) When Notes are presented to the Registrar with the request to register the transfer of such Notes or exchange such Notes for an equal principal amount of Notes of other authorized denominations, the Registrar shall register the transfer or make the exchange in accordance with Article II of the Original Indenture.
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(b) Each security certificate evidencing the Global Securities shall bear a legend substantially in the form set forth in Section 2.15(a) of the Original Indenture.
ARTICLE IV
Section 4.01. Optional Redemption.
(a) At its option, the Issuer may choose to redeem all or any portion of the Notes, at once or from time to time.
(b) To redeem the Notes, the Issuer must pay a redemption price in an amount determined in accordance with the provisions of paragraph 5 of the form of Note in Exhibit A hereto, plus accrued and unpaid interest, if any, to the Redemption Date (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date).
(c) Any redemption pursuant to this Section 4.01 shall otherwise be made pursuant to the provisions of Sections 3.01 through 3.03 of the Original Indenture. The actual redemption price, calculated as provided in paragraph 5 of the form of Note in Exhibit A hereto, shall be certified in writing to the Issuer and the Trustee by the Independent Investment Banker (as defined in such paragraph 5) no later than two Business Days prior to each Redemption Date.
ARTICLE V
ARTICLE VI
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“(h) default by the Partnership or any of its Subsidiaries in the payment at the Stated Maturity, after the expiration of any applicable grace period, of principal of, premium, if any, or interest on any Debt then outstanding having a principal amount in excess of the greater of $25 million and 2% of total partners’ capital in the Partnership, or acceleration of any Debt having a principal amount in excess of the greater of such amounts so that it becomes due and payable prior to its Stated Maturity and such acceleration is not rescinded within 30 days after the date on which written notice specifying such default shall have been given to the Partnership by the Trustee or to the Partnership and the Trustee by the Holders of at least 25% in aggregate principal amount of the Notes at the time Outstanding. The occurrence and continuance of a default under the foregoing shall be deemed an Event of Default under Section 6.01(h) of the Original Indenture with respect to the Notes.”
ARTICLE VII
Section 7.04. Governing Law. THIS SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[Signatures on following page]
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SIGNATURES
ISSUER: | |
ENBRIDGE ENERGY PARTNERS, L.P. |
By: | Enbridge Energy Management, L.L.C. | ||
as delegate of Enbridge Energy Company, Inc., | |||
its General Partner | |||
By: | /s/ Xxxx X. Xxxx | ||
Xxxx X. Xxxx | |||
President |
TRUSTEE: | |
U.S. BANK NATIONAL ASSOCIATION, as Trustee |
By: | /s/ Xxxxxxx X. Xxxxxx | ||
Name: Xxxxxxx X. Xxxxxx | |||
Title: Assistant Vice President |
EXHIBIT A
(Form of Face of Note)
No. _____________ | $_______________ |
ISIN US29250RAV87 | CUSIP No. 29250R AV8 |
ENBRIDGE ENERGY PARTNERS, L.P.
4.375% Notes due 2020
Enbridge Energy Partners, L.P., a Delaware limited partnership, promises to pay to Cede & Co., or registered assigns, the principal sum of ________________ Dollars [or such greater or lesser amount as may be endorsed on the Schedule attached hereto]1 on October 15, 2020.
Interest Payment Dates: April 15 and October 15, commencing April 15, 2016
Record Dates: April 1 and October 1
ENBRIDGE ENERGY PARTNERS, L.P. | |||
By: | Enbridge Energy Management, L.L.C. | ||
as delegate of Enbridge Energy Company, Inc., | |||
its General Partner | |||
By: | |||
Name: | |||
Title: |
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein referred to in the within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
By: | ||
Authorized Signatory |
Dated __________________
1 To be included only if the Note is issued in global form.
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(Form of Back of Note)
4.375% Notes due 2020
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE PARTNERSHIP 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO HEREIN.]2
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
2 To be included only if note is issued in global form.
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(a) At its option, the Issuer may choose to redeem all or any portion of the Notes, at once or from time to time.
A-3
(b) To redeem the Notes before the date that is one month prior to their Stated Maturity, the Issuer must pay a redemption price equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 50 basis points, plus, in either case, accrued and unpaid interest, if any, to the Redemption Date (subject to the right of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date). To redeem the Notes on or after the date that is one month prior to their Stated Maturity, the Issuer must pay a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to the Redemption Date (subject to the right of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date). The actual redemption price will be calculated and certified to the Trustee and the Partnership by the Independent Investment Banker.
For purposes of determining the redemption price, the following definitions shall apply:
“Comparable Treasury Issue” means the United States Treasury security or securities selected by the Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the 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 the Notes to be redeemed.
“Comparable Treasury Price” means, for any Redemption Date, (1) the average of two Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of four such Reference Treasury Dealer Quotations, or (2) if the Independent Investment Banker 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, as specified by the Partnership, and any successor firm, or if such firm is unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Trustee after consultation with the Partnership.
“Reference Treasury Dealer” means each of Deutsche Bank Securities Inc., BNP Paribas Securities Corp., Citigroup Global Markets Inc. and Xxxxxx Xxxxxxx & Co. LLC and their respective successors; provided, however, that if any of the Reference Treasury Dealers ceases to be a primary U.S. government securities dealer in New York City, then such other primary U.S. government securities dealers as may be substituted by the Trustee.
“Reference Treasury Dealer Quotations” means, for 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 City time, on the third Business Day preceding such Redemption Date.
A-4
“Treasury Rate” means, with respect to any Redemption Date, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be calculated on the third Business Day preceding the Redemption Date.
A-5
13. No Recourse Against Others. The General Partner, Enbridge Energy Management, L.L.C., and their respective directors, officers, employees, incorporators, members and stockholders, as such, shall have no liability for any obligations of the Issuer or the Subsidiary Guarantors under the Notes, the Indenture or the Guarantee or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
A-6
The Issuer shall furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
Enbridge Energy Partners, L.P.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Houston, Texas 77002-5217
Attention: General Counsel
A-7
Assignment Form
To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to
(Insert assignee’s soc. sec. or tax I.D. no.) |
(Print or type assignee’s name, address and zip code) |
and irrevocably appoint |
agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him. | |
Date: _________________________________ | |
Your Signature: | |
(Sign exactly as your name appears on the face of this Note. |
Signature Guarantee: | |
(Signature must be guaranteed by a financial institution that is a member of the Securities Transfer Agent Medallion Program (“STAMP”), the Stock Exchange Medallion Program (“SEMP”), the New York Stock Exchange, Inc. Medallion Signature Program (“MSP”) or such other signature guarantee program as may be determined by the Registrar in addition to, or in substitution for, STAMP, SEMP or MSP, all in accordance with the Securities Exchange Act of 1934, as amended.) |
A-8
SCHEDULE OF INCREASES OR DECREASES IN THE GLOBAL NOTE1
The original principal amount of this Global Note is $___________. The following increases or decreases in this Global Note have been made:
Date of Exchange | Amount of decrease in Principal Amount of this Global Note | Amount of increase in Principal Amount of this Global Note | Principal Amount of this Global Note following such decrease (or increase) | Signature of authorized signatory of Trustee or Note Custodian | ||||
1 To be included only if the Note is issued in global form.
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EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of ______________, ____ , among Enbridge Energy Partners, L.P., a Delaware limited partnership (the “Partnership” or the “Issuer”), _________________________________ (the “Subsidiary Guarantor”), a direct or indirect subsidiary of the Partnership, and U.S. Bank National Association, a national banking association, as successor trustee to SunTrust Bank, as trustee under the indenture referred to below (the “Trustee”),
WHEREAS, the Issuer has heretofore executed and delivered to the Trustee an indenture (the “Original Indenture”), dated as of May 27, 2003, as supplemented by the Thirteenth Supplemental Indenture (the “Thirteenth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”) dated as of October 6, 2015, between the Issuer and the Trustee, providing for the issuance of the Issuer’s 4.375% Notes due 2020 (the “Notes”);
WHEREAS, Section 4.14 of the Indenture provides that under certain circumstances the Partnership is required to cause the Subsidiary Guarantor to execute and deliver to the Trustee a supplemental indenture pursuant to which the Subsidiary Guarantor shall unconditionally guarantee all of the Issuer's obligations under the Notes pursuant to a Guarantee on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.01 of the Original Indenture, the Issuer and the Trustee are authorized to execute and deliver this Supplemental Indenture;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Issuer, the Subsidiary Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the holders of the Notes as follows:
(b) For all purposes of this Supplemental Indenture, except as otherwise herein expressly provided or unless the context otherwise requires: (i) the terms and expressions used herein shall have the same meanings as corresponding terms and expressions used in the Indenture; and (ii) the words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
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3. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE DEEMED TO BE A NEW YORK CONTRACT, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
4. Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
ENBRIDGE ENERGY PARTNERS, L.P. |
By: | Enbridge Energy Management, L.L.C. | ||
as delegate of Enbridge Energy Company, Inc., | |||
its General Partner | |||
By: | |||
Name: | |||
Title: | |||
(SUBSIDIARY GUARANTOR) | |||
By: | |||
Name: | |||
Title: | |||
U.S. BANK NATIONAL ASSOCIATION, as Trustee | |||
By: | |||
Name: | |||
Title: |
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