pepl8k_102307.htm
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
D. C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of
Report (Date of earliest event reported): October 23, 2007
PANHANDLE
EASTERN PIPE LINE COMPANY, LP
(Exact
name of registrant as specified in its charter)
Delaware
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1-2921
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44-0382470
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(State
or other jurisdiction of incorporation)
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(Commission
File Number)
|
(I.R.S.
Employer
Identification
No.)
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5444
Westheimer Road
Houston,
Texas
(Address
of principal executive offices)
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77056-5306
(Zip
Code)
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Registrant's
telephone number, including area code: (713) 989-7000
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
[
]
|
Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
|
[
]
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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[
]
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
|
|
|
[
]
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
|
IEM
1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
On
October 23, 2007, Panhandle Eastern
Pipe Line Company, LP (“Panhandle”) entered into an Underwriting Agreement
(the "Underwriting Agreement") with Banc of America Securities LLC, J.P.
Morgan
Securities Inc. and Wachovia Capital Markets, LLC, as representatives of
the several underwriters named in the Underwriting Agreement, for the sale
of
$300 million aggregate principal amount of Panhandle’s 6.20% senior notes due
2017 (the “Notes”). The Notes were registered by Panhandle pursuant
to post-effective amendment no. 1 to the registration statement on Form S-3
(File No. 333-137998) under Rule 413(b) under the Securities Act of 1933,
as
amended (the "Act"). The Notes are unsecured. The Underwriting
Agreement contains customary representations, warranties, agreements and
indemnification obligations of Panhandle, including for liabilities under
the Act. The foregoing description of the Underwriting
Agreement is qualified in its entirety by reference to such Underwriting
Agreement, a copy of which is filed herewith as Exhibit 1.1 and is incorporated
herein by reference.
The
terms of the Notes are governed by
the Indenture, dated as of March 29, 1999 (the “Indenture”),
between Panhandle and The Bank of New York Trust Company, N.A., as trustee
(the “Trustee”), as supplemented by the Fifth Supplemental Indenture,
dated October 26, 2007 (the “Supplemental Indenture”). The
Supplemental Indenture with respect to the Notes (including the form of
note) is filed herewith as Exhibit 4.1 and is incorporated herein by
reference.
ITEM
9.01 FINANCIAL STATEMENTS AND EXHIBITS.
(c)
Exhibits.
Exhibit
No.
Description
|
Underwriting
Agreement, dated October 23, 2007, by and between Panhandle and Banc
of
America Securities LLC, J.P. Morgan Securities Inc. and Wachovia
Capital
Markets, LLC, as Representatives for the several underwriters named
in the
Underwriting Agreement.
Fifth
Supplemental Indenture to the Company’s March 29, 1999 Indenture pursuant
to which the 6.20% 2006 Senior Notes Due 2017 will be issued. dated
as of
October 26, 2007
Opinion
of Locke Lord Bissell & Liddell LLP
Consent
of Locke Lord Bissell & Liddell LLP (contained in the opinion of
counsel filed as Exhibit 5.1 hereto).
|
This
8-K
includes forward-looking statements. Although Panhandle believes that its
expectations are based on reasonable assumptions, it can give no assurance
that
such assumptions will materialize. Important factors that could cause actual
results to differ materially from those in the forward-looking statements herein
are enumerated in Panhandle's Forms 10-K and 10-Q as filed with the Securities
and Exchange Commission. Panhandle assumes no obligation to publicly update
or
revise any forward-looking statements made herein or any other forward-looking
statements made by the Panhandle, whether as a result of new information, future
events, or otherwise.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant
has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
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PANHANDLE
EASTERN PIPE LINE COMPANY, LP
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(Registrant)
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Date:
October 29, 2007
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By:
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/s/
Richard N. Marshall
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Richard
N. Marshall
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Senior
Vice President and Chief Financial
Officer
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EXHIBIT
INDEX
Exhibit
No. Description
|
Underwriting
Agreement, dated October 23, 2007, by and between Panhandle and Banc
of
America Securities LLC, J.P. Morgan Securities Inc. and Wachovia
Capital
Markets, LLC, as Representatives for the several underwriters named
in the
Underwriting Agreement.
Fifth
Supplemental Indenture to the Company’s March 29, 1999 Indenture pursuant
to which the 6.20% 2006 Senior Notes Due 2017 will be issued. dated
as of
October 26, 2007
Opinion
of Locke Lord Bissell & Liddell LLP
Consent
of Locke Lord Bissell & Liddell LLP (contained in the opinion of
counsel filed as Exhibit 5.1 hereto).
|
ex1.htm
Panhandle
Eastern Pipe Line Company, LP
UNDERWRITING
AGREEMENT
October
23, 2007
Banc
of
America Securities LLC
214
North
Tryon Street
Charlotte,
NC 28255
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J.P.
Morgan Securities Inc.
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|
Wachovia
Capital Markets, LLC
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As
Representatives of the several
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|
Underwriters
listed in Exhibit A
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Ladies
and Gentlemen:
Panhandle
Eastern Pipe Line Company, LP, a Delaware limited partnership (the
“Company”), proposes to sell to the several underwriters named in Exhibit
A attached hereto (collectively, the “Underwriters,” which term shall
also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Banc of America Securities LLC, J.P. Morgan
Securities Inc. and Wachovia Capital Markets, LLC are acting as representatives
(in such capacity, the “Representatives”), $300,000,000.00
aggregate principal amount of its 6.200% Senior Notes due 2017 (the
“Securities”), to be issued under an indenture (the “Base
Indenture”) dated as of March 29, 1999 between the Company and The Bank of
New York Trust Company, N.A. (as successor to J.P. Morgan Trust Company,
National Association, Bank One Trust Company, National Association, and NBD
Bank), as trustee (the “Trustee”), as amended and supplemented by the
fifth supplemental indenture (the “Fifth Supplemental Indenture”) to be
dated as of October 26, 2007 between the Company and the Trustee (the Base
Indenture, as so amended and supplemented, the “Indenture”).
SECTION
1. Representations and Warranties.
(a) Representations
and Warranties by the Company. The Company represents and warrants to each
Underwriter as of the date hereof, as of the Applicable Time, as of the Closing
Date referred to in Section 2(c) hereof, and agrees with each Underwriter,
as follows:
(1) Compliance
with Registration Requirements. The Securities have been duly
registered under the 1933 Act pursuant to the Registration
Statement. The Initial Registration Statement is an “automatic shelf
registration statement” as defined under Rule 405 of the 1933 Act that has been
filed with the Commission not earlier than three
(2) years
prior to the date hereof. The Company has not received from the
Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act objecting
to
use of the automatic shelf registration statement form and the Company has
not
otherwise ceased to be eligible to use the automatic shelf registration
statement form. The Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose
have been instituted or are pending or, to the knowledge of the Company or
Southern Union Company (the “Parent”) are contemplated by the Commission,
and any request on the part of the Commission for additional information
has
been complied with.
At
the
respective times, the Registration Statement and any post-effective amendments
thereto became or become effective and at the Closing Date, the Registration
Statement and any amendments and supplements thereto complied and will comply
in
all material respects with the requirements of the 1933 Act and the 1933
Act
Regulations and did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. Neither the Final
Prospectus nor any amendments or supplements thereto, as of its date, at
the
Closing Date, and at any time when a prospectus is required by applicable
law to
be delivered in connection with sales of Securities, included or will include
an
untrue statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Each
preliminary prospectus and prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the 1933 Act in connection with the offering of
the Securities (including, without limitation, the Final Prospectus and the
Statutory Prospectus), complied when so filed in all material respects with
the
requirements of the 1933 Act and the 1933 Act Regulations and each preliminary
prospectus and prospectus (including, without limitation, the Final Prospectus
and the Statutory Prospectus) and any amendments or supplements thereto
delivered to the Underwriters for use in connection with the offering of
the
Securities was identical to the electronically transmitted copy thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
As
of the
Applicable Time, neither (a) any Issuer General Use Free Writing
Prospectuses issued at or prior to the Applicable Time, the Statutory Prospectus
as of the Applicable Time and the information included on Exhibit F hereto,
all considered together (collectively, the “General Disclosure Package”),
nor (b) any individual Issuer Limited Use Free Writing Prospectus, when
considered together with the General Disclosure Package, included or will
include any untrue statement of a material fact or omitted or will omit to
state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
Each
Issuer Free Writing Prospectus, as of its date and at all subsequent times
through the completion of the public offering and sale of the Securities,
did
not, does not and will not include any information that conflicted, conflicts
or
will conflict with the
information
contained in the Registration Statement or the Statutory Prospectus or the
Final
Prospectus and any preliminary or other prospectus deemed to be a part thereof
that has not been superseded or modified.
The
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement, the Statutory Prospectus,
the
Final Prospectus or any Issuer Free Writing Prospectus) made in reliance
upon
and in conformity with information furnished to the Company in writing by
any
Underwriter through the Representatives expressly for use in the Registration
Statement, the Statutory Prospectus, the Final Prospectus or such Issuer
Free
Writing Prospectus, as the case may be.
At
the
time of filing the Initial Registration Statement, at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3)
of
the 1933 Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act
or
form of prospectus), at the time the Company or any person acting on its
behalf
(within the meaning, for this clause only, of Rule 163(c) of the 1933 Act)
made
any offer relating to the Securities in reliance on the exemption of Rule
163 of
the 1933 Act and at the date hereof, the Parent was and is a “well known
seasoned issuer” as defined in Rule 405 of the 1933 Act.
At
the
time of filing the Registration Statement and any post-effective amendments
thereto and at the date hereof, the Company was not and is not an “ineligible
issuer” as defined in Rule 405, in each case without taking into
account any determination made by the Commission pursuant to clause 2 of
the
definition of such term in Rule 405.
The
Company and the Parent meet the requirements to incorporate documents by
reference into the Registration Statement under the 1933 Act. The
documents incorporated by reference in the Registration Statement, the Final
Prospectus and the General Disclosure Package at the time they were or hereafter
are filed with the Commission complied and will comply in all material respects
with the requirements of the 1934 Act and the 1934 Act Regulations, and,
when
read together with the other information in the Registration Statement, Final
Prospectus and the General Disclosure Package, at the time the Final Prospectus
and the General Disclosure Package were filed, as applicable, and at the
Closing
Date, did not and will not include an untrue statement of a material fact
or
omit to state a material fact required to be stated therein or necessary
to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(3) Independent
Accountants. The accountants who certified the financial
statements and supporting schedules included in the Registration Statement,
the
Final Prospectus and the General Disclosure Package are independent public
accountants with respect to the Company and its subsidiaries within the meaning
of Regulation S-X under the 1933 Act.
(4) Financial
Statements. The Company’s financial statements, together with the
related schedules and notes, included or incorporated by reference in the
Registration Statement, the Final Prospectus and the General Disclosure Package
present fairly the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statements of operations, statement
of partners’ capital and comprehensive income, statement of cash flows of the
Company and its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with generally accepted
accounting principles in the United States (“GAAP”) applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included or incorporated by reference in the Registration
Statement, the Final Prospectus and the General Disclosure Package present
fairly in accordance with GAAP the information required to be stated
therein. The capitalization table, the selected financial information
and the summary financial information included or incorporated by reference
in
the Registration Statement, the Final Prospectus and the General Disclosure
Package present fairly the information shown therein and have been compiled
on a
basis consistent with that of the audited financial statements or unaudited
financial statements, as the case may be, included or incorporated by reference
in the Registration Statement, the Final Prospectus and the General Disclosure
Package.
(5) No
Material Adverse Change in Business. Except as disclosed in the
General Disclosure Package and the Final Prospectus, since the end of the
period
covered by the financial statements of the Company included or incorporated
by
reference in the Final Prospectus and the General Disclosure Package, (A)
there
has been no material adverse change in the condition, financial or otherwise,
or
in the earnings, business affairs or business prospects of the Company and
its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a “Material Adverse Effect”), and (B) there
have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are
material with respect to the Company and its subsidiaries considered as one
enterprise, and (C) except in the ordinary course of business and consistent
with past practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its partnership
interests.
(6) Good
Standing of the Company. The Company has been duly organized and
is validly existing as a limited partnership in good standing under the laws
of
the State of Delaware and has full limited partnership power and authority
to
own, lease and operate its properties and to conduct its business as currently
conducted and as described in the Final Prospectus and the General Disclosure
Package and to enter into and perform its obligations under this Agreement
and
the Indenture; and the Company is duly qualified as a foreign limited
partnership to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of
the
ownership or leasing of property or the conduct of business, except where
the
failure to so qualify or to be in good standing would not result in a Material
Adverse Effect. The Company’s conversions from a corporation to a
limited liability company on June 16, 2003 then to a limited partnership
on June
29, 2004 were validly authorized and completed under the laws of the State
of
Delaware, and the conversions did not and will not, whether with or without
the
giving of notice or passage of time or both, cause or
(7) result
in a default under any agreement or instrument to which the Company or any
of
its subsidiaries is a party or by which or any of them may be bound, or to
which
any of the property or assets of the Company or any of its subsidiaries is
subject, except for such defaults as would not singly or in the aggregate
have a
Material Adverse Effect.
(8) Material
Subsidiaries. Exhibit B sets forth a true and correct list of all
subsidiaries of the Company, in which the Company (a) directly or indirectly
through one or more subsidiaries, beneficially owns capital stock or other
equity interests having in the aggregate fifty percent (50%) or more of the
total combined voting power, without giving effect to any contingent voting
rights, in the election of directors (or persons fulfilling similar functions
or
duties) of such owned subsidiary or (b) is a general partner (the “Material
Subsidiaries”).
(9) Good
Standing of Material Subsidiaries. Each Material Subsidiary of
the Company has been duly organized and is validly existing in good standing
under the laws of the jurisdiction of its organization, has the requisite
power
(corporate or otherwise) and authority to own, lease and operate its properties
and to conduct its business as described in the Final Prospectus and the
General
Disclosure Package and is duly qualified to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; all of the issued and outstanding limited
liability company interests, capital stock or similar interests (as the case
may
be) of each Material Subsidiary has been duly authorized and validly issued,
is
fully paid and non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien,
encumbrance, claim or equity; none of the outstanding limited liability company
interests, shares of capital stock or similar interests (as the case may
be) of
the Material Subsidiaries was issued in violation of any preemptive or similar
rights of any securityholder of such Material Subsidiary. The other
subsidiaries of the Company other than Material Subsidiaries, considered
in the
aggregate as a single subsidiary, do not constitute a “significant
subsidiary” as defined in Rule 1.02 of Regulation S-X.
(10) Capitalization. All
of the limited partnership interests of the Company are owned of record and
beneficially by Southern Union Panhandle, LLC, a Delaware limited liability
company, which in turn is wholly owned by the Parent. No person other
than Southern Union Panhandle, LLC and the Parent owns of record or beneficially
any equity interests or rights to acquire equity interests in the
Company. All limited partnership interests of the Company have been
duly authorized and validly issued and are fully paid and non-assessable;
none
of the outstanding partnership interests of the Company were issued in violation
of the preemptive or other similar rights of any securityholder of the
Company.
(11) Authorization
of Agreement. This Agreement has been duly authorized, executed
and delivered by the Company, and the Company has full right, power and
authority to perform its obligations hereunder.
(12) Authorization
and Qualification of the Indenture. The Fifth Supplemental
Indenture has been duly authorized by the Company and, when the Fifth
Supplemental Indenture is executed and delivered by the Company and the Trustee,
will constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of
whether enforcement is considered in a proceeding in equity or at
law). The Base Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at
law).
(13) Authorization
of the Securities. The Securities have been duly authorized by
the Company for issuance and sale pursuant to this Agreement. The
Securities, when authenticated, issued and delivered in the manner provided
for
in the Indenture and delivered against payment of the purchase price therefor
as
provided in this Agreement, will constitute valid and binding obligations
of the
Company, enforceable against the Company in accordance with their terms,
except
as the enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at
law), and will be in the form contemplated by, and entitled to the benefits
of,
the Indenture.
(14) Description
of the Securities and the Indenture. The Securities and the
Indenture conform in all material respects to the respective statements relating
thereto contained in the Final Prospectus and the General Disclosure Package
and
will be in substantially the respective forms last delivered to the Underwriters
prior to the date of this Agreement.
(15) Absence
of Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is in violation of its certificate of formation, limited
partnership agreement, charter, by-laws or similar organizational instruments
(as the case may be) or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or
other agreement or instrument to which the Company or any of its subsidiaries
is
a party or by which any of them may be bound, or to which any of the property
or
assets of the Company or any of its subsidiaries is subject except for such
defaults as would not singly or in the aggregate have a Material Adverse
Effect;
and the execution, delivery and performance of this Agreement, the Indenture,
the Securities and
(16) any
other agreement or instrument entered into or issued or to be entered into
or
issued by the Company in connection with the transactions contemplated hereby
or
thereby or in the Final Prospectus and the General Disclosure Package, and
the
consummation of the transactions contemplated hereby, thereby and in the
Final
Prospectus and the General Disclosure Package (including the issuance and
sale
of the Securities and the use of the proceeds from the sale of the Securities
as
described in the Final Prospectus under the caption “Use of Proceeds”)
and compliance by the Company with its obligations hereunder and thereunder
have
been duly authorized by all necessary limited partnership action and do not
and
will not, whether with or without the giving of notice or passage of time
or
both, conflict with or constitute a breach of, or default or Repayment Event
(as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of
its
subsidiaries pursuant to, any obligation, agreement, covenant or condition
contained in (i) any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument evidencing
or
governing indebtedness for borrowed money, to which the Company or any of
its
subsidiaries is a party or by which any of them may be bound, or to which
any of
the property or assets of the Company or any of its subsidiaries is subject
or
(ii) any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument other than those referred to
in
clause (i) above to which the Company or any of its subsidiaries is a party
or
by which any of them may be bound, or to which any of the property or assets
of
the Company or any of its subsidiaries is subject except (in the case of
this
clause (ii)) for such conflicts, breaches or defaults or Repayment Events
or
liens, charges or encumbrances that would not singly or in the aggregate
result
in a Material Adverse Effect, nor will such action result in any violation
of
the provisions of the certificate of formation, limited partnership agreement,
charter, by-laws or similar organizational instruments (as the case may be)
of
the Company or any of its subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets, properties or
operations, except for such exceptions as would not singly or in the aggregate
have a Material Adverse Effect. As used herein, a “Repayment
Event” means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its
subsidiaries.
(17) Absence
of Labor Dispute. No labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the Company,
is imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or any of its subsidiaries’ principal
suppliers, manufacturers, customers or contractors, which, in either case,
would
result in a Material Adverse Effect.
(18) Absence
of Proceedings. Except as disclosed in the General Disclosure
Package and the Final Prospectus, there is no action, suit, proceeding, inquiry
or investigation before or brought by any court or governmental agency or
body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or
(19) affecting
the Company or any of its subsidiaries which might result in a Material Adverse
Effect, or which might materially and adversely affect the properties or
assets
of the Company or any of its subsidiaries or the consummation of the
transactions contemplated by this Agreement, the Indenture or the Final
Prospectus and the General Disclosure Package or the performance by the Company
of its obligations under this Agreement or the Indenture. The
aggregate of all pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or of which any of their respective
property or assets is the subject which are not described in the Final
Prospectus and the General Disclosure Package, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(20) Absence
of Manipulation. Neither the Company nor any affiliate of the
Company has taken, nor will the Company or any affiliate take, directly or
indirectly, any action which is designed to or which has constituted or which
would be expected to cause or result in stabilization or manipulation of
the
price of any security of the Company to facilitate the sale or resale of
the
Securities.
(21) Possession
of Intellectual Property. The Company and its subsidiaries own or
possess, or can acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks, trade names or other intellectual
property (collectively, “Intellectual Property”) necessary to carry on
the business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company or
any of
its subsidiaries therein, and which infringement or conflict (if the subject
of
any unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly
or in the aggregate, would result in a Material Adverse Effect.
(22) Absence
of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree
of, any
court or governmental authority or agency, domestic or foreign, is necessary
or
required for the performance by the Company of its obligations hereunder,
in
connection with the offering, issuance or sale of the Securities hereunder
or
the consummation of the transactions contemplated by this Agreement or the
Indenture or for the due execution, delivery or performance of this Agreement
or
the Indenture by the Company, except for such consents, approvals,
authorizations, orders and registrations or qualifications as may be required
under applicable state securities laws in connection with the purchase and
distribution of the Securities by the Underwriters.
(23) Possession
of Licenses and Permits. The Company and its subsidiaries possess
such permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary
to
conduct the business now operated by them,
(24) except
where the failure so to possess would not, singly or in the aggregate, result
in
a Material Adverse Effect; the Company and its subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not singly or in the aggregate have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full force
and
effect, except where the invalidity of such Governmental Licenses or the
failure
of such Governmental Licenses to be in full force and effect would not singly
or
in the aggregate have a Material Adverse Effect; and neither the Company
nor any
of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect.
(25) Title
to Property. The Company and its subsidiaries have good and valid
title to all real property owned by the Company and its subsidiaries and
good
title to all other properties owned by them, in each case, free and clear
of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the Final
Prospectus and General Disclosure Package (b) do not, singly or in the
aggregate, materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the Company
or any
of its subsidiaries or (c) could not reasonably be expected, singly or in
the
aggregate, to have a Material Adverse Effect; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Final Prospectus and General
Disclosure Package, are in full force and effect, and neither the Company
nor
any of its subsidiaries has any notice of any claim of any sort that has
been
asserted by anyone adverse to the rights of the Company or any of its
subsidiaries under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company or any subsidiary thereof to the
continued possession of the leased or subleased premises under any such lease
or
sublease, except for such claims that could not reasonably be expected singly
or
in the aggregate to have a Material Adverse Effect.
(26) Environmental
Laws. Except as described in the Final Prospectus and General
Disclosure Package and except for such matters as would not, singly or in
the
aggregate, have a Material Adverse Effect, (A) neither the Company nor any
of
its subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common
law or
any judicial or administrative interpretation thereof, including any judicial
or
administrative order, consent, decree or judgment, relating to pollution
or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata)
or
wildlife, including, without limitation, laws and regulations relating to
the
release or threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products,
asbestos-containing materials or mold (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
“Environmental Laws”), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C)
(27) there
are no pending or threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its subsidiaries, (D) there are no events or
circumstances that would reasonably be expected to form the basis of an order
for clean-up or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the Company or
any of
its subsidiaries relating to Hazardous Materials or Environmental Laws, (E)
there has been no spill, discharge, leak, emission, injection, escape, dumping
or release of Hazardous Materials onto property now or previously owned or
leased by the Company or any of its subsidiaries, or at any location at which
Hazardous Materials generated by the Company or any of its subsidiaries have
come to rest, or into the environment surrounding such property, of Hazardous
Materials due to or caused by the Company or any of its subsidiaries, or
with
respect to which the Company or any of its subsidiaries have received notice
or
have knowledge of the Company’s or any of its subsidiaries’ actual or potential
liability, (F) neither the Company nor any of its subsidiaries has any liability
of any nature whatsoever, including any retained or assumed contractual
liability, pertaining to any Environmental Laws, and (G) no facility owned
or
operated by the Company or any of its subsidiaries is currently, or was at
any
time, listed on the National Priorities List promulgated under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601, et
seq., or any comparable state list.
(28) Investment
Company Act. The Company is not required, and upon the issuance
and sale of the Securities as herein contemplated and the application of
the net
proceeds therefrom as described in the Final Prospectus and General Disclosure
Package will not be required, to register as an “investment company” under the
Investment Company Act of 1940, as amended (the “1940 Act”).
(29) Disclosure
Controls and Procedures. The Company has established disclosure
controls and procedures to ensure that information required to be disclosed
by
the Company, including consolidated entities, in reports filed or submitted
under the 1934 Act is recorded, processed, summarized and reported within
the
time periods specified in the Commission’s rules and forms. The
Company’s disclosure controls and procedures are designed to ensure that
information required to be disclosed in the reports it files or submits under
the 1934 Act is accumulated and communicated to management, including the
Company’s Chief Operating Officer and Chief Financial Officer, as appropriate,
to allow timely decisions regarding required disclosure.
(30) No
Material Weakness in Internal Controls. Except as disclosed in
the General Disclosure Package and the Final Prospectus, or in any document
incorporated by reference therein, since the end of the Company’s most recent
audited fiscal year, there has been (i) no material weakness in the Company’s
internal control over financial reporting (whether or not remediated) and
(ii)
no change in the Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
(31) Public
Utility Holding Company Act. Neither the Company nor any of its
subsidiaries is a “holding company” or a “subsidiary company” of a holding
company or an “affiliate” thereof within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
(32) Compliance
with ERISA. Except as would not reasonably be expected to have a
Material Adverse Affect, each employee benefit plan, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), that is maintained, administered or contributed to by the
Company or any of its affiliates for employees or former employees of the
Company and its affiliates has been maintained in compliance with its terms
and
the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of 1986,
as
amended (the “Code”); no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has occurred with respect
to
any such plan excluding transactions effected pursuant to a statutory or
administrative exemption; and for each such plan that is subject to the funding
rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated
funding deficiency” as defined in Section 412 of the Code has been incurred,
whether or not waived, and no liability has been incurred under Title IV
of
ERISA that has not been satisfied.
(33) Insurance. The
Company and its subsidiaries have insurance covering their respective
properties, operations, personnel and businesses, including business
interruption insurance, as appropriate and customary in the industry in which
the Company operates, which insurance is in amounts and insures against such
losses and risks as are adequate to protect the Company and its subsidiaries
and
their respective businesses; and neither the Company nor any of its subsidiaries
has (i) received notice from any insurer or agent of such insurer that capital
improvements or other expenditures are required or necessary to be made in
order
to continue such insurance or (ii) any reason to believe that it will not
be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage at reasonable cost from similar insurers as
may be
necessary to continue its business.
(34) No
Unlawful Payments. Neither the Company nor any of its
subsidiaries nor, to the best knowledge of the Company, any director, officer,
agent, employee or other person associated with or acting on behalf of the
Company or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating
to
political activity; (ii) made any direct or indirect unlawful payment to
any
foreign or domestic government official or employee from corporate funds;
(iii)
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
(35) No
Restrictions on Subsidiaries. No subsidiary of the Company is
currently prohibited, directly or indirectly, under any agreement or other
instrument to which it is a party or is subject, from paying any dividends
to
the Company, from making any other distribution on such subsidiary’s capital
stock, equity interests or similar interests, from repaying to the Company
any
loans or advances to such subsidiary from
(36) the
Company or from transferring any of such subsidiary’s properties or assets to
the Company or any other subsidiary of the Company.
(37) No
Broker’s Fees. Neither the Company nor any of its subsidiaries is
a party to any contract, agreement or understanding with any person (other
than
this Agreement) that would give rise to a valid claim against the Company
or any
of its subsidiaries or any Underwriter for a brokerage commission, finder’s fee
or like payment in connection with the offering and sale of the
Securities.
(38) No
Registration Rights. No person has the right to require the
Company or any of its subsidiaries to register any securities other than
the
Securities for sale under the 1933 Act by reason of the issuance and sale
of the
Securities.
(39) Forward-Looking
Statements. No forward-looking statement (within the meaning of
Section 27A of the 1933 Act and Section 21E of the Exchange Act) contained
in
the Final Prospectus and General Disclosure Package has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good
faith.
(40) Statistical
and Market Data. Nothing has come to the attention of the Company
that has caused the Company to believe that the statistical and market-related
data included in the Final Prospectus and General Disclosure Package is not
based on or derived from sources that are reliable and accurate in all material
respects.
(41) Compliance
with Sarbanes-Oxley Act. The Company and the Company’s directors,
managers or officers, in their capacities as such, are in compliance in all
material respects with the provisions of the Sarbanes-Oxley Act of 2002 and
the
rules and regulations promulgated in connection therewith (the
“Sarbanes-Oxley Act”), including Section 402 related to loans and
Sections 302 and 906 related to certifications; there is and has been no
failure
on the part of the Company or any of the Company’s directors, managers or
officers, in their capacities as such, to comply with any provision of the
Sarbanes-Oxley Act, including Section 402 related to loans and Sections 302
and
906 related to certifications.
(42) Officer’s
Certificates. Any certificate signed by any officer of the
Company, the Parent or any of its subsidiaries delivered to the Representatives
or to counsel for the Underwriters shall be deemed a representation and warranty
by the Company, the Parent or any of its subsidiaries, respectively, to each
Underwriter as to the matters covered thereby.
SECTION
2. Sale and Delivery to Underwriters;
Closing.
(a) Securities. The
Company agrees to issue and sell the Securities to the several Underwriters
as
provided in this Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth herein and subject to
the
conditions set forth herein, agrees, severally and not jointly, to purchase
from
the Company the respective principal amount of Securities set forth opposite
such Underwriter’s name in Exhibit A hereto at a price equal to 99.741% of the
principal amount thereof plus accrued interest, if any, from October
26,
(b) 2007
to the Closing Date (as defined below). The Company will not be
obligated to deliver any of the Securities except upon payment for all the
Securities to be purchased as provided herein.
(c) The
Company understands that the Underwriters intend to make a public offering
of
the Securities as soon after the effectiveness of this Agreement as in the
judgment of the Representative is advisable, and initially to offer the
Securities on the terms set forth in the Final Prospectus. The
Company acknowledges and agrees that the Underwriters may offer and sell
Securities to or through any affiliate of an Underwriter and that any such
affiliate may offer and sell Securities purchased by it to or through any
Underwriter.
(d) Payment.
Payment of the purchase price for, and delivery of certificates for,
the
Securities shall be made at the offices of Davis Polk & Wardwell, 450
Lexington Avenue, New York, NY 10017, or at such other place as shall
be agreed upon by the Representatives and the Company, at 9:00 A.M.
(Eastern time) on October 26, 2007 (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business
days after such date as shall be agreed upon by the Representatives and the
Company (such time and date of payment and delivery being herein called
“Closing Date”).
Payment
shall be made to the Company by wire transfer of immediately available funds
to
a single bank account designated by the Company, in each case against delivery
to the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for
its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Securities which it has agreed to purchase. Wachovia
Capital Markets, LLC, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Securities, to be purchased by any Underwriter whose funds
have
not been received by the Closing Date, but such payment shall not relieve
such
Underwriter from its obligations hereunder.
(e) Denominations;
Registration. Global notes representing the Securities shall be
in such denominations and registered in such names as the Representatives
may
request in writing at least one full business day before the Closing Date
(collectively, the “Global Note”), with any transfer taxes payable in
connection with the sale of the Securities duly paid by the
Company. The Global Note will be made available for examination and
packaging by the Representatives in The City of New York not later than noon
(Eastern time) on the business day prior to the Closing Date.
SECTION
3. Covenants of the Company. The Company
covenants with each Underwriter as follows:
(a) Compliance
with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of
Rule 430A, 430B or 430C (the “Rule 430 Information”) under the 1933
Act and will notify the Representatives immediately, and confirm the notice
in
writing, (i) when the Registration Statement or any post-effective
amendment to the Registration Statement shall become effective hereafter,
or any
supplement to the Final Prospectus or any amended prospectus
(b) shall
have been filed, (ii) of the receipt of any comments from the Commission,
(iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Final Prospectus,
or any document incorporated by reference therein or any Issuer Free Writing
Prospectus or for additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening
of any
proceedings for any of such purposes, or of any examination pursuant to Section
8(e) of the 1933 Act concerning the Registration Statement and (v) if the
Company becomes the subject of a proceeding under Section 8A of the 1933
Act in
connection with the offering of the Securities. The Company will make
every reasonable effort to prevent the issuance of any stop order and, if
any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(c) Filing
of Amendments. For so long as any Securities remain unsold by
the Underwriters, the Company will give the Representatives notice of its
intention to file or prepare any amendment to the Registration Statement
or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Final
Prospectus, whether pursuant to the 1933 Act or otherwise, or (without
limitation to the provisions of Section 16 of this Agreement), any Issuer
Free
Writing Prospectus or any amendment or supplement thereto and will furnish
the
Representatives with copies of any such documents within a reasonable amount
of
time prior to such proposed filing or use, as the case may be, and will not
file
or use any such document to which the Representatives or counsel for the
Underwriters shall object.
(d) Delivery
of Registration Statements. The Company has furnished or will deliver to
the Representatives and counsel for the Underwriters, without charge, signed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein
and documents incorporated by reference therein) and signed copies of all
consents and certificates of experts. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Delivery
of Prospectuses. The Company has delivered to each Underwriter, without
charge, as many copies of each preliminary prospectus and any Issuer Free
Writing Prospectuses prepared prior to the date of this Agreement as such
Underwriter reasonably requested, and the Company hereby consents to the
use of
such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, such number of copies of the
documents constituting the General Disclosure Package, any Issuer Free Writing
Prospectuses prepared on or after the date of this Agreement and the Final
Prospectus (and any amendments or supplements thereto) as such Underwriter
may
reasonably request. The Statutory Prospectus, each Issuer Free
Writing Prospectus and the Final Prospectus and any amendments or supplements
thereto furnished to the Underwriters is or will be, as the
(f) case
may be, identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted
by
Regulation S-T.
(g) Continued
Compliance with Securities Laws. The Company will comply with the 1933 Act,
the 1933 Act Regulations so as to permit the completion of the distribution
of
the Securities as contemplated in this Agreement and in the Final
Prospectus. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Securities (including,
without limitation, pursuant to Rule 172), any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel
for
the Underwriters or for the Company, to amend the Registration Statement
or
amend or supplement the Final Prospectus in order that the Final Prospectus
will
not include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in
the
light of the circumstances existing at the time it is delivered to a purchaser,
or if it shall be necessary, in the opinion of such counsel, at any such
time to
amend the Registration Statement or amend or supplement the Final Prospectus
in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b) hereof, such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Final Prospectus comply with such requirements, and the
Company
will furnish to the Underwriters such number of copies of such amendment
or
supplement as the Underwriters may reasonably request. If at any time
following issuance of an Issuer Free Writing Prospectus there occurred or
occurs
an event or development as a result of which such Issuer Free Writing Prospectus
conflicted, conflicts or would conflict with the information contained in
the
Registration Statement or included, includes or would include an untrue
statement of a material fact or omitted, omits or would omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances, prevailing at that subsequent time, not misleading, the Company
will promptly notify the Representatives and the Company will, subject to
Section 3(b) hereof, promptly amend or supplement such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement or
omission.
(h) Blue
Sky Qualifications. The Company will use its best efforts, in cooperation
with the Underwriters, to qualify the Securities for offering and sale under
the
applicable securities laws of such states and other jurisdictions (domestic
or
foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the
date of
this Agreement; provided, however, that the Company shall not be obligated
to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it
is not
so qualified or to subject itself to taxation in respect of doing business
in
any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company
will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not
less
than one year from the date of this Agreement.
(i) Rule 158.
The Company will timely file such reports pursuant to the 1934 Act as
are
necessary in order to make generally available to its securityholders as
soon as
practicable an earnings statement for the purposes of, and to provide to
the
Underwriters the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(j) Use
of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the General
Disclosure Package and the Final Prospectus under “Use of
Proceeds.”
(k) Clear
Market. During the period from the date hereof through and
including the business day following the Closing Date, the Company will not,
without the prior written consent of the Representatives, offer, sell, contract
to sell or otherwise dispose of any debt securities issued or guaranteed
by the
Company and having a tenor of more than one year.
(l) No
Stabilization. The Company will not take, directly or
indirectly, any action designed to or that could reasonably be expected to
cause
or result in any stabilization or manipulation of the price of the
Securities.
(m) Reporting
Requirements. The Company, during the period when the Final Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(n) Preparation
of Prospectus. Immediately following the execution of this Agreement, the
Company will, subject to Section 3(b) hereof, prepare the Final Prospectus
containing the Rule 430 Information and other selling terms of the
Securities, the plan of distribution thereof and such other information as
may
be required by the 1933 Act or the 1933 Act Regulations or as the
Representatives and the Company may deem appropriate, and will file the Final
Prospectus with the Commission in the manner and within the time period required
by Rule 424(b) (without reliance on Rule 424(b)(8)). Any
Final Prospectus delivered pursuant to Rule 173(d) shall be identical to
the electronically transmitted copy thereof filed with the Commission pursuant
to Rule 424(b).
(o) Pricing
Term Sheet. The Company will prepare a pricing term sheet
containing only a description of the Securities, in a form approved by the
Representatives and contained in Exhibit F hereto, and will file such term
sheet
pursuant to Rule 433(d) under the 1933 Act within the time required by such
rule
(such term sheet, the “Pricing Term Sheet”).
(p) Registration
Statement Renewal Deadline. If immediately prior to the third
anniversary (the “Renewal Deadline”) of the initial effective date of the
Initial Registration Statement, any of the Securities remain unsold by the
Underwriters, the Parent will prior to the Renewal Deadline file, if it has
not
already done so and is eligible to do so, a new automatic shelf registration
statement relating to the Securities, in a form satisfactory to the
Representatives. If the Parent is no longer eligible to file an
automatic
(q) shelf
registration statement, the Parent will prior to the Renewal Deadline, if
it has
not already done so, file a new shelf registration statement relating to
the
Securities, in a form satisfactory to the Representatives, and will use its
best
efforts to cause such registration statement to be declared effective within
60
days after the Renewal Deadline. The Company and the Parent will take
all other action necessary or appropriate to permit the public offering and
sale
of the Securities to continue as contemplated in the expired registration
statement relating to the Securities. References herein to the
Registration Statement shall include such new automatic shelf registration
statement or such new shelf registration statement, as the case may
be.
(r) Notice
of Inability to Use Automatic Shelf Registration Statement
Form. If at any time when Securities remain unsold by the
Underwriters the Parent or the Company receives from the Commission a notice
pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the
automatic shelf registration statement form, the Parent will (i) promptly
notify
the Representatives, (ii) promptly file a new registration statement or
post-effective amendment on the proper form relating to the Securities, in
a
form satisfactory to the Representatives, (iii) use its best efforts to cause
such registration statement or post-effective amendment to be declared effective
and (iv) promptly notify the Representatives of such
effectiveness. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Securities to continue
as contemplated in the registration statement that was the subject of the
Rule
401(g)(2) notice or for which the Company has otherwise become
ineligible. References herein to the Registration Statement shall
include such new registration statement or post-effective amendment, as the
case
may be.
(s) Filing
Fees. The Company agrees to pay the required Commission filing
fees relating to the Securities within the time required by Rule 456(b)(1)
of
the 1933 Act without regard to the proviso therein and otherwise in accordance
with Rules 456(b) and 457(r) of the 1933 Act.
SECTION
4. Payment of Expenses.
(a) Expenses. The
Company will pay all expenses incident to the performance of its obligations
including (i) the preparation, printing and filing of the Post-Effective
Amendment (including financial statements and any schedules or exhibits and
any
document incorporated therein by reference) as originally filed and of each
amendment thereto, (ii) the word processing, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such
other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the Global Note for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon
the
sale, issuance or delivery of the Securities to the Underwriters, (iv) the
fees and disbursements of the counsel, accountants and other advisors to
the
Company, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of the Blue
Sky
Survey and any supplement thereto, (vi) the fees and expenses of the
Trustee, including the fees and disbursements of counsel for the Trustee
in
(b) connection
with the Indenture and the Securities, (vii) the costs and expenses of the
Company relating to investor presentations on any “road show” undertaken in
connection with the marketing of the Securities including, without limitation,
expenses associated with the production of road show slides and graphics,
fees
and expenses of any consultants engaged in connection with the road show
presentations, travel and lodging expenses of the representatives and officers
of the Company and any such consultants, and the cost of aircraft and other
transportation chartered in connection with the road show and (viii) any
fees payable in connection with the rating of the Securities and (ix) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Issuer Free Writing Prospectus, the documents constituting
the
General Disclosure Package and the Final Prospectus and any amendments or
supplements thereto.
(c) Termination
of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or
Section 9(a)(i), (a)(iii) (but only with respect to the Company’s or the
Parent’s Securities) or (a)(v) hereof, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
SECTION
5. Conditions of Underwriters’
Obligations. The obligations of the several Underwriters
hereunder are subject to the accuracy of the representations and warranties
of
the Company contained in this Agreement or in certificates of any officer
of the
Company or any subsidiary of the Company delivered pursuant to the provisions
hereof, to the performance by the Company of its respective covenants and
other
obligations hereunder, and to the following further conditions:
(a) Effectiveness
of Registration Statement. The Registration Statement has become effective
and at the Closing Date no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or, to the knowledge of the Company, threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction
of
counsel to the Underwriters. The preliminary prospectus and the Final
Prospectus shall have been filed with the Commission in the manner and within
the time period required by Rule 424(b) (without reliance upon Rule 424(b)(8)),
and prior to Closing Date, the Company shall have provided evidence satisfactory
to the Representatives of such timely filing.
(b) Representations
and Warranties. The representations and warranties of the
Company contained herein shall be true and correct on the date hereof and
on and
as of the Closing Date; and the statements of the Company and its officers
made
in any certificates delivered pursuant to this Agreement shall be true and
correct on and as of the Closing Date.
(c) No
Downgrade. Subsequent to the earlier of (A) the Applicable Time
and (B) the execution and delivery of this Agreement, (i) no downgrading
shall
have occurred in the rating accorded the Securities or any other debt securities
or preferred stock of or guaranteed by the Company or any of its subsidiaries
by
any “nationally recognized statistical rating organization”, as such term is
defined by the Commission for purposes
(d) of
Rule 436(g)(2) under the 1933 Act and (ii) no such organization shall have
publicly announced that it has under surveillance or review, or has changed
its
outlook with respect to, its rating of the Securities or of any other debt
securities or preferred stock of or guaranteed by the Company or any of its
subsidiaries (other than an announcement with positive implications of a
possible upgrading).
(e) No
Material Adverse Change. No event or condition of a type
described in Section 1(a)(4) hereof shall have occurred or shall exist, which
event or condition is not described in the General Disclosure Package (excluding
any amendment or supplement thereto) and the Final Prospectus (excluding
any
amendment or supplement thereto) and the effect of which in the judgment
of the
Representative makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Securities on the terms and in the manner
contemplated by this Agreement, the General Disclosure Package and the Final
Prospectus.
(f) Opinion
and 10b-5 Statement of Counsel for Company. On the Closing Date, the
Representative shall have received the favorable opinion and 10b-5 statement,
dated as of the Closing Date, of Locke Lord Bissell & Liddell LLP, counsel
for the Company (“Company Counsel”), in form and substance satisfactory
to counsel for the Underwriters, together with signed or reproduced copies
of
such letter for each of the other Underwriters, to the effect set forth in
Exhibit C hereto.
(g) Opinion
and 10b-5 Statement of Counsel for Underwriters. On the Closing Date, the
Representatives shall have received the favorable opinion and 10b-5 Statement,
dated as of Closing Date, of Davis Polk & Wardwell, counsel for the
Underwriters, together with signed or reproduced copies of such
documents for each of the other Underwriters, with respect to such matters
as
the Representatives may reasonably request, to the effect set forth in Exhibit
D
hereto.
(h) Officers’
Certificate. On the Closing Date there shall not have been, since the date
hereof or since the respective dates as of which information is given in
the
Final Prospectus and the General Disclosure Package (exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement), any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of
business, and, on the Closing Date, the Representatives shall have received
a
certificate of the Chairman, the President, the Chief Executive Officer or
an
Executive Vice President or Senior Vice President of the Company and of the
Chief Financial Officer or Chief Accounting Officer of the Company, dated
as of
Closing Date, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties of the Company in
this Agreement are true and correct with the same force and effect as though
expressly made at and as of the Closing Date, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to
be
performed or satisfied at or prior to the Closing Date under or pursuant
to this
Agreement, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have
been instituted or are pending or, to their knowledge, are contemplated by
the
Commission.
(i) Parent’s
Officers’ Certificate. At Closing Date there shall not have been, since the
date hereof or since the respective dates as of which information is given
in
the Final Prospectus and the General Disclosure Package (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement),
any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and, at the Closing Date, the Representatives
shall
have received a certificate of the Chief Financial Officer or Chief Accounting
Officer of the Parent, dated as of Closing Date, to the effect that
(i) there has been no such material adverse change, (ii) the
representations and warranties of the Company in this Agreement are true
and
correct with the same force and effect as though expressly made at and as
of
Closing Date, (iii) confirming that the Registration Statement, including
the documents incorporated by reference, and the financial statements and
certain financial information together with the related schedules and notes
contained therein at the time they were or hereafter are filed with the
Commission complied and will comply in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations and at the time
the
Final Prospectus and the General Disclosure Package were issued and at the
Closing Date, did not and will not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they
were made, not misleading, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or, to their knowledge,
are
contemplated by the Commission.
(j) Accountant’s
Comfort Letter. At the time of the execution of this Agreement, the
Representatives shall have received
from PricewaterhouseCoopers LLP a letter, dated the date
of this Agreement and in form and substance satisfactory to the Representatives,
together with signed or reproduced copies of such letter for each of the
other
Underwriters, containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect
to the financial statements and certain financial information of the Company
contained in the General Disclosure Package and the Final
Prospectus.
(k) Bring-down
Comfort Letter. On the Closing Date, the Representatives shall have
received from PricewaterhouseCoopers LLP a letter, dated as of Closing Date
and
in form and substance satisfactory to the Representatives, to the effect
that
they reaffirm the statements made in the letter furnished pursuant to
subsection (i) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to Closing
Date.
(l) Additional
Documents. On the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the Securities
as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
contained in this Agreement; and all proceedings taken by the Company in
connection with the issuance and sale of the
(m) Securities
as herein contemplated and in connection with the other transactions
contemplated by this Agreement shall be satisfactory in form and substance
to
the Representatives and counsel for the Underwriters.
(n) Termination
of Agreement. If any condition specified in this Section 5 shall not
have been fulfilled when and as required to be fulfilled, this Agreement
may be
terminated by the Representatives by notice to the Company at any time on
or
prior to the Closing Date, and such termination shall be without liability
of
any party to any other party except as provided in Section 4 hereof and
except that Sections 1, 6, 7, 8 and 13 hereof shall survive any such
termination and remain in full force and effect.
SECTION
6. Indemnification.
(a) Indemnification
by the Company. The Company agrees to indemnify and hold harmless each
Underwriter, its affiliate, as such term is defined in Rule 501(b) under
the
1933 Act (each, an “Affiliate”), its directors, officers, employees and agents,
and each person, if any, who controls any Underwriter within the meaning
of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto),
or the
omission or alleged omission therefrom of a material fact required to be
stated
therein or necessary to make the statements therein not misleading, or arising
out of any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus, any Issuer Free Writing Prospectus,
the
Statutory Prospectus or the Final Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation,
or
any investigation or proceeding by any governmental agency or body, commenced
or
threatened, or of any claim whatsoever based upon any such untrue statement
or
omission, or any such alleged untrue statement or omission; provided that
(subject to Section 6(d) below) any such settlement is effected with the
written consent of the Company; and
(iii) against
any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Representatives), reasonably incurred
in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or
threatened, or any claim whatsoever based upon any such untrue statement
or
omission, or any such alleged untrue statement or omission, to the extent
that
any such expense is not paid under (i) or (ii) above,
(iv) provided,
however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company
by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto), or in any preliminary prospectus, any
Issuer Free Writing Prospectus, the Statutory Prospectus or the Final Prospectus
(or any amendment or supplement thereto).
(b) Indemnification
by the Underwriters. Each Underwriter severally agrees to
indemnify and hold harmless the Company, its limited partner, general partner
and their respective members and directors, each of its officers who signed
the
Registration Statement, and each person, if any, who controls the Company
within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act against any and all loss, liability, claim, damage and expense described
in
the indemnity contained in subsection (a) (1) of this Section 6,
as incurred, but only with respect to untrue statements or omissions, or
alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary prospectus, any Issuer Free Writing
Prospectus, the Statutory Prospectus or the Final Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus, any Issuer Free Writing
Prospectus, the Statutory Prospectus or the Final Prospectus (or any amendment
or supplement thereto).
(c) Actions
against Parties; Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder,
but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity
agreement. Counsel to the indemnified parties pursuant to Section
6(a) shall be selected by the Representatives and, counsel to the indemnified
parties pursuant to Section 6(b) shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any
such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one counsel (in addition to
any
local counsel) separate from their own counsel for all indemnified parties
in
connection with any one action or separate but similar or related actions
in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any
claim whatsoever in respect of which indemnification or contribution could
be
sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and
(d) (ii) does
not include a statement as to or an admission of fault, culpability or a
failure
to act by or on behalf of any indemnified party.
(e) Settlement
Without Consent if Failure to Reimburse. If at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, such indemnifying party agrees that
it
shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior to
such
settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior
to
the date of such settlement.
SECTION
7. Contribution. If the indemnification
provided for in Section 6 hereof is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party,
as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on
the
other hand from the offering of the Securities pursuant to this Agreement
or
(ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the
relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other
hand
in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Securities pursuant
to
this Agreement shall be deemed to be in the same respective proportions as
the
total net proceeds from the offering of the Securities pursuant to this
Agreement (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth on the cover of the Final Prospectus, bear to the aggregate
initial public offering price of the Securities as set forth on such
cover.
The
relative fault of the Company on the one hand and the Underwriters on the
other
hand shall be determined by reference to, among other things, whether any
such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company
or by the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The
Company and the Underwriters agree that it would not be just and equitable
if
contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account
of the
equitable considerations referred to above in this
Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above
in
this Section 7 shall be deemed to include any legal or
other
expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding
the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which
the Securities underwritten by it and distributed to the public exceeds the
amount of any damages which such Underwriter has otherwise been required
to pay
by reason of any such untrue or alleged untrue statement or omission or alleged
omission.
No
person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the 1933 Act) shall be entitled to contribution from any person who was
not
guilty of such fraudulent misrepresentation.
For
purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act and each Underwriter’s Affiliates and selling
agents shall have the same rights to contribution as such Underwriter, and
each
director of the general partner of the Company, each officer of the Company
who
signed the Registration Statement, and each person, if any, who controls
the
Company within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as the
Company. The Underwriters’ respective obligations to contribute
pursuant to this Section 7 are several in proportion to the amount of
Securities set forth opposite their respective names in Exhibit A hereto
and not joint.
SECTION
8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements
contained in this Agreement or in certificates of officers of the Company
or any
of its subsidiaries submitted in relation to the offering covered by this
Agreement shall remain operative and in full force and effect, a) regardless
of
any investigation made (i) by or on behalf of any Underwriter or its
Affiliates or selling agents, any person controlling any Underwriter, its
officers, directors, employees or agents or (ii) by or on behalf of the Company,
any person controlling the Company, its directors and each of its officers
who signed the Registration Statement and b) shall survive delivery of the
Securities to the Underwriters.
SECTION
9. Termination of Agreement.
(a) Termination;
General. The Representatives may terminate this Agreement, by notice to the
Company, at any time on or prior to the Closing Date (i) if there has been,
since the time of execution of this Agreement or since the respective dates
as
of which information is given in the Final Prospectus and the General Disclosure
Package, any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Company
and
its subsidiaries considered as one enterprise, whether or not arising in
the
ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving
a
prospective change in national or international political, financial or
economic
(b) conditions,
in each case the effect of which is such as to make it, in the judgment of
the
Representatives, impracticable or inadvisable to market the Securities or
to
enforce contracts for the sale of the Securities, or (iii) if trading in
any securities of the Company or the Parent has been suspended or materially
limited by the Commission or the NYSE, or if trading generally on the American
Stock Exchange or the NYSE or in the Nasdaq National Market has been suspended
or materially limited, or minimum or maximum prices for trading have been
fixed,
or maximum ranges for prices have been required, by any of said exchanges
or by
such system or by order of the Commission, the FINRA or any other governmental
authority, or a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States or in Europe,
or (iv) if a banking moratorium has been declared by either Federal or New
York authorities or (v) if there shall have occurred, since the time of
execution of this Agreement, any downgrading in the rating of any debt
securities of the Company or by any “nationally recognized statistical rating
organization” (as defined by the Commission for purposes of Rule 436 under the
1933 Act) or any public announcement that any such organization has under
surveillance or review its ratings on any such debt securities, (other than
an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating) or any announcement
by
any such organization that the Company has been placed on negative
outlook.
(c) Liabilities.
If this Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any party to any other party except
as
provided in Section 4 hereof, and provided further that Sections 1, 6,
7, 8 and 13 hereof shall survive such termination and remain in full force
and
effect.
SECTION
10. Default by One or More of the
Underwriters. If one or more of the Underwriters shall fail at
the Closing Date to purchase the Securities which it or they are obligated
to
purchase under this Agreement (the “Defaulted Securities”), the
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein
set
forth; if, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
(a) if
the number of Defaulted Securities does not exceed 10% of the number of
Securities to be purchased on such date, each of the non-defaulting Underwriters
shall be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters; or
(b) if
the number of Defaulted Securities exceeds 10% of the number of Securities
to be
purchased on such date, this Agreement shall terminate without liability
on the
part of any non-defaulting Underwriter.
No
action
taken pursuant to this Section 10 shall relieve any defaulting Underwriter
from liability in respect of its default.
In
the
event of any such default which does not result in a termination of this
Agreement, the Representatives or the Company shall have the right to postpone
the Closing Date for a period not exceeding seven days in order to effect
any
required changes in the Registration Statement or Final Prospectus or in
any
other documents or arrangements. As used herein, the term
“Underwriter” includes any person substituted for an Underwriter under this
Section 10.
SECTION
11. Notices. All notices and other
communications hereunder shall be in writing and shall be deemed to have
been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to
the Representatives at Banc of America Securities LLC, 40 West 57th Street,
NY1-040-27-03, New York, Yew York 10019, J.P. Morgan Securities Inc., 270
Park
Avenue, New York, NY 10017, Attention: High Grade Syndicate Desk, 8th Floor,
Facsimile:
(21) 834-5724, Attention: High Grade Transaction Management Legal, Wachovia
Capital Markets, LLC, 301 South College Street, Charlotte, NC 28288-0613,
Attention of Transaction Management Group; notices to the Company shall be
directed to it at Panhandle Eastern Pipe Line Company, LP, 5444 Westheimer
Road,
Houston, Texas 77056-5306, Attention of General Counsel.
SECTION
12. Parties. This Agreement shall inure to
the benefit of and be binding upon the Underwriters, the Company and their
respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Company and their respective
successors and the controlling persons and officers and directors referred
to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or
any
provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of
the
Underwriters, the Company and their respective successors, and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION
13. GOVERNING LAW AND TIME. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION
14. Effect of Headings. The Section and
Exhibit headings herein are for convenience only and shall not affect the
construction hereof.
SECTION
15. Definitions. As used in this Agreement,
the following terms have the respective meanings set forth below:
“Applicable
Time” means 3:45 PM (New York time) on October 23, 2007 or such other date
or time as agreed by the Company and the Representatives.
“Commission”
means the Securities and Exchange Commission.
“EDGAR”
means the Commission’s Electronic Data Gathering, Analysis and Retrieval
System.
“Final
Prospectus” means the Statutory Prospectus that discloses the public
offering price, other Rule 430 Information and other final terms of the
Securities and otherwise satisfies Section 10(a) of the 1933 Act.
“FINRA”
means the Financial Industry Regulatory Authority.
“GAAP”
means generally accepted accounting principles.
“Initial
Registration Statement” means the Parent’s registration statement on Form
S-3 (Registration No. 333-137998), as amended (if applicable), at the time
it
became effective, including the Rule 430 Information and the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,”
as defined in Rule 433, relating to the Securities (including, without
limitation, any “road show” that is a “written communication” within the meaning
of Rule 433(d)(8)(i) whether or not required to be filed with the
Commission and any issuer free writing prospectus that is exempt from filing
pursuant to Rule 433(d)(5)(i) because it contains a description of the
Securities or of the offering that does not reflect the final terms), in
each
case in the form furnished to the Underwriters for use in connection with
the
offering of the Securities (and not as the form of Issuer Free Writing
Prospectus filed with the Commission pursuant to Rule 433).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective investors,
as evidenced by it being listed in Exhibit E hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is not an Issuer General Use Free Writing
Prospectus.
“Lien”
means any security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
“NYSE”
means the New York Stock Exchange.
“Post-Effective
Amendment” means the Post-Effective Amendment No. 1 to the Initial
Registration Statement filed by the Parent and the Company with the Commission
on October 23, 2007.
“preliminary
prospectus” means any prospectus (including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act) used
in connection with the offering of the Securities that was used before the
Initial Registration Statement became effective, or that was used after such
effectiveness and prior to the execution and delivery of this Agreement,
or that
omitted the Rule 430 Information or that was captioned “Subject to
Completion”.
“Registration
Statement” means the Initial Registration Statement, together with the
Post-Effective Amendment.
“Rule
164,” “Rule 172,” “Rule 424(b),” “Rule 430A” and
“Rule 433” refer to such rules under the 1933 Act.
“Sarbanes-Oxley
Act” means the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated thereunder or implementing the provisions thereof.
“Statutory
Prospectus” as of any time means the prospectus supplement or preliminary
prospectus supplement, as the case may be, relating to the Securities, together
with the prospectus that is included in the Initial Registration Statement
immediately prior to that time, in the form furnished to the Underwriters
for
use in connection with the offering of the Securities, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
1933
Act.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as
amended.
“1933
Act” means the 1933 Act of 1933, as amended.
“1933
Act Regulations” means the rules and regulations of the Commission under the
1933 Act.
“1934
Act” means the Securities Exchange Act of 1934, as amended.
“1934
Act Regulations” means the rules and regulations of the Commission under the
1934 Act.
“1940
Act” means the Investment Company Act of 1940, as amended.
All
references in this Agreement to financial statements and schedules and other
information that is “contained,” “included” or “stated” in the Registration
Statement, any preliminary prospectus, the Statutory Prospectus or the Final
Prospectus (and all other references of like import) shall be deemed to mean
and
include all such financial statements and schedules and other information
that
is incorporated by reference in the Registration Statement, any preliminary
prospectus, the Statutory Prospectus or the Final Prospectus, as the case
may
be, pursuant to Item 12 of Form S-1 under the 1933 Act.
All
references in this Agreement to the Registration Statement, any preliminary
prospectus, the Statutory Prospectus, the Final Prospectus or any amendment
or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to EDGAR; and all references to any Issuer Free
Writing Prospectus that is required to be filed with the Commission pursuant
to
Rule 433 shall be deemed to include the copy thereof filed with the Commission
pursuant to EDGAR.
SECTION
16. Permitted Free Writing Prospectuses. The
Company represents, warrants and agrees that, unless it obtains the prior
consent of the Representatives, and each Underwriter, severally and not jointly,
represents and agrees that, unless it obtains the prior consent of the Company
and the Representatives, it has not made and will not make any offer relating
to
the Securities that would constitute an “issuer free writing prospectus,” as
defined in Rule 433, or that would otherwise constitute a “free writing
prospectus,” as defined in Rule 405, required to
SECTION
17. be filed with the Commission. Any such free
writing prospectus consented to by the Representatives or by the Company
and the
Representatives, as the case may be, is hereinafter referred to as a
“Permitted Free Writing Prospectus.” The Company represents
and warrants that it has treated and agrees that it will treat each Permitted
Free Writing Prospectus as an “issuer free writing prospectus,” as defined in
Rule 433, and has complied and will comply with the requirements of
Rule 433 applicable to any Permitted Free Writing Prospectus, including
timely filing with the Commission where required, legending and record
keeping. For the purposes of clarity, nothing in this Section 16
shall restrict the Company from making any filings required under the 1934
Act
or 1934 Act Regulations. Notwithstanding the foregoing, the
Underwriters may use a term sheet substantially in the form of Exhibit F
hereto
without the consent of the Company.
SECTION
18. Absence of Fiduciary Relationship. The
Company acknowledges and agrees that:
(a) Each
of the Underwriters is acting solely as an underwriter in connection with
the
public offering of the Securities and no fiduciary, advisory or agency
relationship between the Company on the one hand, and any of the Underwriters,
on the other hand, has been or will be created in respect of any of the
transactions contemplated by this Agreement, irrespective of whether or not
any
of the Underwriters have advised or is advising the Company on other matters
and
none of the Underwriters has any obligation to the Company with respect to
the
transactions contemplated by this Agreement except the obligations expressly
set
forth in this Agreement;
(b) the
public offering price of the Securities and the price to be paid by the
Underwriters for the Securities set forth in this Agreement were established
by
the Company following discussions and arms-length negotiations with the
Representatives;
(c) it
is capable of evaluating and understanding, and understands and accepts,
the
terms, risks and conditions of the transactions contemplated by this
Agreement;
(d) in
connection with each transaction contemplated by this Agreement and the process
leading to such transactions, each Underwriter is and has been acting solely
as
principal and not as fiduciary, advisor or agent of the Company or any of
its
respective affiliates, partners, creditors or employees or any other
party;
(e) none
of the Underwriters has provided any legal, accounting, regulatory or tax
advice
with respect to the transactions contemplated by this Agreement and it has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate;
(f) it
is aware that the Underwriters and their respective affiliates are engaged
in a
broad range of transactions which may involve interests that differ from
those
of the Company and that none of the Underwriters has any obligation to disclose
such interests and transactions to the Company by virtue of any fiduciary,
advisory or agency relationship; and
(g) it
waives, to the fullest extent permitted by law, any claims it may have against
any of the Underwriters for breach of fiduciary duty or alleged breach of
fiduciary duty and agrees that none of the Underwriters shall have any liability
(whether direct or indirect, in
(h) contract,
tort or otherwise) to it in respect of such a fiduciary duty claim or to
any
person asserting a fiduciary duty claim on its behalf or in right of
it or the Company or any partners, employees or creditors of the
Company.
SECTION
19. General Provision. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to
be an
original, but all such counterparts shall together constitute one and the
same
Agreement.
[Signature
Page Follows]
If
the foregoing is in accordance with your understanding of our agreement,
please
sign and return to the Company a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement between the
Underwriters and the Company in accordance with its terms.
Very
truly yours,
By ____________________
Name:
Title:
CONFIRMED
AND ACCEPTED, as of the date first above written:
BANC
OF
AMERICA SECURITIES LLC
By:
___________________________
Authorized
Signatory
J.P.
MORGAN SECURITIES INC.
By:
___________________________
Authorized
Signatory
WACHOVIA
CAPITAL MARKETS, LLC
By:
___________________________
Authorized
Signatory
For
themselves and on behalf of the
several
Underwriters listed
in
Exhibit A hereto.
EXHIBIT
A
Name
of Underwriter
|
|
Banc
of America Securities
LLC
|
$75,000,000
|
J.P.
Morgan Securities
Inc.
|
75,000,000
|
Wachovia
Capital Markets,
LLC.
|
75,000,000
|
Lazard
Capital Markets
LLC
|
18,750,000
|
Calyon
Securities (USA)
Inc.
|
18,750,000
|
Wells
Fargo Securities,
LLC
|
18,750,000
|
The
Williams Capital Group,
L.P.
|
18,750,000
|
Total
|
|
|
|
EXHIBIT
B
MATERIAL
SUBSIDIARIES OF THE COMPANY
Material
Subsidiaries
List
of
Subsidiaries
|
2.
|
Panhandle Energy
LNG Services, LLC
|
|
3.
|
Panhandle
Holdings LLC
|
|
5.
|
Trunkline
Deepwater Pipeline LLC
|
|
6.
|
Trunkline
Gas Company, LLC
|
|
7.
|
Trunkline
LNG Company, LLC
|
|
8.
|
Trunkline
LNG Holdings LLC
|
|
9.
|
Trunkline
Offshore Pipeline LLC
|
|
10.
|
Trunkline
Field Services LLC
|
|
11.
|
Sea
Robin Pipeline Company, LLC
|
EXHIBIT
C
FORM
OF
OPINION & 10B-5 STATEMENT OF COMPANY COUNSEL
Draft
October
[26], 2007
Banc
of
America Securities LLC
214
North
Tryon Street
Charlotte,
NC 28255
|
J.P.
Morgan Securities Inc.
|
New
York,
NY 10017
|
Wachovia
Capital Markets, LLC
|
Charlotte,
NC 28288-0613
As
Representatives of the Several Underwriters
Ladies
and Gentlemen:
We
have
acted as counsel for Panhandle Eastern Pipe Line Company, LP, a Delaware
limited
partnership (the “Company”), in connection with the sale by the Company
of $[l] aggregate
principal amount of the Company’s [l]% Senior Notes
due 2017
(the “Securities”) to the several underwriters named in Exhibit A (the
“Underwriters”) to that certain Underwriting Agreement, dated as of
October [23], 2007 (the “UnderwritingAgreement”), among the
Company and Banc of America Securities LLC, J.P. Morgan Securities Inc. and
Wachovia Capital Markets, LLC, as representatives of the
Underwriters. The Securities are to be issued pursuant to an
indenture (the “Base Indenture”), dated as of March 29, 1999, between the
Company and The Bank of New York Trust Company, N.A. (as successor to J.P.
Morgan Trust Company, National Association; Bank One Trust Company, National
Association; and NBD Bank), as trustee (the “Trustee”), as amended and
supplemented by the fifth supplemental indenture (the “Fifth Supplemental
Indenture”) dated as of October [l], 2007
between the
Company and the Trustee (the Base Indenture, as so amended and supplemented,
the
“Indenture”). Capitalized terms used herein but not defined herein shall
have the meanings ascribed to them in the Underwriting Agreement.
In
connection with the preparation of this letter, we have, among other things,
participated in the preparation of:
(a) the
Post-Effective Amendment No. 1 to the Registration Statement on Form S-3
(Registration No. 333-137998), including the base prospectus dated October
23,
2007 (the “Base Prospectus”), filed by the Company with the Securities
and Exchange Commission (the “Commission”) on October 23, 2007 (together
with the documents incorporated by reference
(b) therein,
the “Post-Effective Amendment”), for the purpose of registering the sale
of the Securities by the Company under the Securities Act of 1933, as amended
(the “Securities Act”);
(c) the
Company’s preliminary prospectus supplement dated October 23, 2007, covering the
offering of the Securities through the Underwriters, together with the Base
Prospectus (together with the documents incorporated by reference therein,
the
“Preliminary Prospectus”) and the pricing term sheet dated October 23,
2007 (the “Pricing Term Sheet,” and together with the Preliminary
Prospectus, the “General Disclosure Package”); and
(d) the
Company’s prospectus supplement dated October 23, 2007, covering the offering of
the Securities through the Underwriters, in the form which includes the initial
offering price and related terms of the Securities (together with the documents
incorporated by reference therein, the “Final Prospectus”);
and
(e) the
Fifth Supplemental Indenture and Underwriting Agreement.
We
have
also reviewed:
(a) the
Registration Statement on Form S-3 (No. 333-137998), including the related
prospectus, filed by Southern Union Company (the “Parent”) on October 13,
2006 (the “Initial Registration Statement, and together with the
Post-Effective Amendment, the “Registration Statement”);
(b) a
copy of the executed Base Indenture;
(c) certified
copies of the Certificate of Limited Partnership of the Company and the
Agreement of Limited Partnership of the Company;
(d) a
certified copy of the resolutions adopted by the Board of Directors of the
Parent (the sole member in Southern Union Panhandle LLC (the “General
Partner”), which is the sole general partner in the Company);
(e) certified
copies of the charter, certificate of incorporation, articles of incorporation,
certificate of formation, certificate of limited partnership, bylaws, limited
partnership agreement, operating agreement, limited liability company agreement
and other documents providing for the formation, organization and governance
of
the Parent, the General Partner and each of the Material Subsidiaries (all
of
such documents, together with the Certificate of Limited Partnership of the
Company and the Agreement of Limited Partnership of the Company, the
“Organizational Documents”);
(f) copies
of all certificates and other documents delivered today at the closing of
the
purchase and sale of the Securities under the Underwriting Agreement;
and
(g) such
other documents, certificates and information as described in the third full
paragraph on page 6 of this letter or as we have otherwise considered necessary
for purposes of this letter.
(h) Subject
to the assumptions, qualifications and limitations which are identified in
this
letter, we advise you that:
(1) The
Company has been duly organized and is in good standing under the laws of
the
State of Delaware and is qualified to do business and in good standing in
all
other jurisdictions in which the Company has advised us that its ownership
or
lease of property or the conduct of its business requires qualification as
a
foreign limited partnership, and has all limited partnership power and authority
necessary to own or hold its properties and conduct its business as described
in
the Registration Statement, the General Disclosure Package and Final
Prospectus.
(2) Each
Material Subsidiary has been duly organized and is in good standing under
the
laws of the jurisdiction of its organization and is qualified to do business
and
in good standing in each other jurisdiction in which the Company has advised
us
that such Material Subsidiary’s ownership or lease of property or the conduct of
its business requires qualification as a foreign entity.
(3) The
Indenture has been duly authorized, executed and delivered by the Company,
the
Securities have been duly authorized and (assuming the Securities have been
duly
authenticated by the Trustee in accordance with the Indenture and have been
delivered and paid for pursuant to the Underwriting Agreement on the date
hereof) the Securities have been duly executed, issued and delivered; and
the
Indenture (assuming the due authorization, execution and delivery of the
Indenture by the Trustee) and the Securities (assuming the Securities have
been
duly authenticated by the Trustee in accordance with the Indenture and have
been
delivered and paid for pursuant to the Underwriting Agreement on the date
hereof) constitute valid and legally binding obligations of the Company,
enforceable against it in accordance with their terms (and the holders of
the
Securities will be entitled to the benefits and security provided by the
Indenture), subject to bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium and
similar laws affecting enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general equitable principles (regardless
of
whether enforcement is considered in a proceeding in equity or at
law).
(4) The
Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Final
Prospectus, will not be an “investment company,” as defined in the Investment
Company Act of 1940, as amended.
(5) No
consent, approval, authorization or order of, or filing with, any governmental
agency or body or any court is required for the consummation of the transactions
contemplated by the Underwriting Agreement in connection with the offering,
issuance and sale of the Securities by the Company, except for (i) the
registration of the Securities under the Securities Act, which registration
has
been effected, and (ii) such consents, approvals, authorizations, orders
and
filings as may be required under applicable state securities laws in connection
with the purchase and distribution of the Securities by the
Underwriters.
(6) The
execution, delivery and performance by the Company of the
Underwriting Agreement and the Indenture, the issuance and sale of
the Securities being delivered on the date hereof, and the compliance by
the
Company with the terms of, and the consummation of the
transactions
contemplated by, the Underwriting Agreement, the Indenture and the Securities
will not (i) conflict with, or result in a breach or violation of, any of
the
terms or provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets
of
the Company or any of its Material Subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
listed
as an exhibit in the Company’s Annual Report on Form 10-K for the year ended
December 31, 2006 or in any report subsequently filed by the Company pursuant
to
Section 13(a) or Section 15(d) of the Exchange Act, (ii) result in any violation
of the Organizational Documents or (iii) result in the violation of any law,
statute or regulation or, to our knowledge, any judgment or order of any
court
or arbitrator or governmental authority (other than the blue sky laws of
the
various states as to which we express no opinion) except, in the case of
clauses
(i) and (iii) above, for such conflicts, breaches, violations or defaults
that
would not, individually or in the aggregate, have a Material Adverse
Effect.
(7) The
Registration Statement has become effective under the Securities Act, the
Preliminary Prospectus and the Final Prospectus have been filed with the
Commission pursuant to Rule 424(b), and the Pricing Term Sheet has been filed
with the Commission pursuant to Rule 433(d), in each case, within the time
required by such Rule. No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and, to our
knowledge, no proceedings for that purpose have been instituted or are pending
or contemplated under the Securities Act; the statements in the Registration
Statement, General Disclosure Package and Final Prospectus under the heading
“Description of the Senior Notes,” to the extent that they constitute summaries
of the terms of the Securities and the Indenture, matters of law or legal
conclusions, fairly summarize the matters described therein in all material
respects; and, to our knowledge, (A) there are no current or pending legal
or
governmental proceedings required to be described in the Registration Statement,
the General Disclosure Package or the Final Prospectus which are not described
therein, and (B) there are no contracts or documents of a character required
to
be described in the Registration Statement, the General Disclosure Package
or
the Final Prospectus or to be filed as exhibits to the Registration Statement
which are not described therein and filed therewith.
(8) The
Underwriting Agreement has been duly authorized, executed and delivered by
the
Company.
**********
The
purpose of our professional engagement was not to establish factual matters,
and
preparation of the Registration Statement and the Final Prospectus involved
many
determinations of a wholly or partially nonlegal character. We make
no representation that we have independently verified the accuracy, completeness
or fairness of the Registration Statement or the Final Prospectus or that
the
actions taken in connection with the preparation of the Registration Statement,
the General Disclosure Package or the Final Prospectus (including the actions
described in the next paragraph) were sufficient to cause the Registration
Statement, the General Disclosure Package or the Final Prospectus to be
accurate, complete or fair. We are not passing upon and do not assume
any responsibility for the accuracy, completeness or fairness of the
Registration Statement, the General Disclosure Package or the Final Prospectus
except to the extent otherwise explicitly indicated in numbered paragraph
7
above.
We
can,
however, confirm that we have participated in conferences with representatives
of the Company, representatives of the Underwriter, counsel for the Underwriter
and representatives of the independent accountants for the Company during
which
disclosures in the Registration Statement, the General Disclosure Package
and
the Final Prospectus and related matters were discussed. In addition,
we have reviewed certain corporate records furnished to us by the
Company.
Based
upon our participation in conferences and our document review identified
in the
preceding paragraph, our understanding of applicable law and the experience
we
have gained in our practice thereunder, and, to the extent we have considered
reasonable and necessary, relying as to factual matters upon the statements
of
officers and other representatives of the Company, we can advise that nothing
has come to our attention that has caused us to conclude that (i) the
Registration Statement (other than financial statements and related notes
and
other accounting and financial data included or incorporated by reference
in the
Registration Statement, as to which we express no opinion and give no advice)
at
its effective date and at the date hereof contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein not misleading; (ii) the
General Disclosure Package (other than financial statements and related notes
and other accounting and financial data included or incorporated by reference
in
the General Disclosure Package, as to which we express no opinion and give
no
advice), as of the Applicable Time, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of circumstances under which they were made,
not misleading; (iii) the Final Prospectus (other than financial statements
and
related notes and other accounting and financial data included or incorporated
by reference in the Final Prospectus, as to which we express no opinion and
give
no advice) at the date it bears and at the date hereof contained or contains
an
untrue statement of a material fact or omitted or omits to state a material
fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; and (iv) subject to the foregoing,
we also advise you that, in our opinion, each of the Registration Statement,
as
of the effective date and the date hereof and the Final Prospectus as of
the
date it bears and the date hereof, appeared or appears on its face to be
responsive in all material respects to the requirements of Form S-3 (other
than financial statements and related notes and other accounting and financial
data included or incorporated by reference in the Registration Statement
and the
Final Prospectus, as to which we express no opinion and give no
advice).
*********
Except
as
otherwise specified in this letter, we have not undertaken any investigation
to
determine the facts upon which the advice in this letter is based. We
have not undertaken any search of court records for the purposes of this
letter.
We
have
assumed for purposes of this letter: each document we have reviewed
for purposes of this letter is accurate and complete (other than the
Registration Statement, the General Disclosure Package and the Final
Prospectus), each such document that is an original is authentic, each such
document that is a copy conforms to an authentic original, and all signatures
on
each such document are genuine; that the Underwriting Agreement and every
other
agreement
we
have
examined for purposes of this letter constitutes a valid and binding obligation
of each party to that document and that each such party has satisfied all
legal
requirements that are applicable to such party to the extent necessary to
entitle such party to enforce such agreement (except that we make no such
assumption with respect to the Company); that you have acted in good faith
and
without notice of any fact which has caused you to reach any conclusion contrary
to any of the conclusions provided in this letter; and that the
constitutionality or validity of a relevant statute, rule, regulation or
agency
is not at issue.
In
preparing this letter, we have relied without independent verification upon:
(i) factual information contained in certificates obtained from
governmental authorities; (ii) factual information represented to be
true in the Underwriting Agreement and other documents specifically identified
at the beginning of this letter as having been read by us;
(iii) factual information provided to us by the Company or its
representatives; and (iv) factual information we have obtained from
such other sources as we have deemed reasonable. We have assumed that
there has been no relevant change or development between the dates as of
which
the information cited in the preceding sentence was given and the date of
this
letter and that the information upon which we have relied is accurate and
does
not omit disclosures necessary to prevent such information from being
misleading. For purposes of numbered paragraphs 1 and 2, we have
relied exclusively upon certificates issued by governmental authorities in
the
relevant jurisdiction and such opinion is not intended to provide any conclusion
or assurance beyond that conveyed by those certificates.
We
confirm that we do not have knowledge that has caused us to conclude that
our
reliance and assumptions cited in the two immediately preceding paragraphs
are
unwarranted. Whenever this letter provides advice about (or is based
upon) our knowledge of any particular information or about any information
which
has or has not come to our attention, such advice is based entirely on the
actual knowledge at the time this letter is delivered on the date it bears
by
the lawyers with our firm at that time who (i) have represented the Company
in
connection with the offering of the Securities effected pursuant to the Final
Prospectus, or (ii) have spent time representing the Company on other
significant matters.
Our
advice on every legal issue addressed in this letter is based exclusively
on the
internal laws of the State of New York, the General Corporation Law of the
State
of Delaware, the Delaware Revised Uniform Limited Partnership Act or the
federal
law of the United States, and represents our opinion as to how that issue
would
be resolved were it to be considered by the highest court in the jurisdiction
which enacted such law. The manner in which any particular issue
relating to the opinions would be treated in any actual court case would
depend
in part on facts and circumstances particular to the case and would also
depend
on how the court involved chose to exercise the wide discretionary authority
generally available to it. This letter is not intended to guarantee
the outcome of any legal dispute which may arise in the future. We
express no opinion with respect to any laws, regulations, statutes, governmental
rules or regulations or decisions which in our experience are not applicable
generally to transactions of the kind covered by the Underwriting Agreement
or
covered by opinions typically delivered in connection with transactions of
the
kind covered by the Underwriting Agreement. We are not qualified to
practice law in the State of Delaware and our opinions herein regarding Delaware
law are limited solely to our review of provisions of the General Corporation
Law of the State of Delaware and the Delaware Revised Uniform Limited
Partnership Act, which we consider
normally
applicable to transactions of the type contemplated by the Underwriting
Agreement, without our having made any special investigation as to the
applicability of another statute, law, rule or regulation. None
of the opinions or other advice contained in this letter considers or covers
(i) any foreign or state securities (or “blue sky”) laws or
regulations, (ii) any financial statements or supporting schedules
(or any notes to any such statements or schedules) or other accounting or
financial information derived therefrom set forth or incorporated by reference
in (or omitted from) the Registration Statement or the Final Prospectus
(including but not limited to any computation to determine whether the
execution, delivery and performance by the Company of the Underwriting Agreement
and the Indenture, the issuance and sale of the Securities being delivered
on
the date hereof, and the compliance by the Company with the terms of, and
the
consummation of the transactions contemplated by, the Underwriting Agreement,
the Indenture and the Securities will not result in a breach or
violation of any financial covenant or similar provision of any
contract of the Company), (iii) any rules and regulations of the
Financial Industry Regulatory Authority relating to the compensation of
underwriters or (iv) provisions of the Underwriting Agreement which
require indemnification or contribution, including, without limitation,
indemnification or contribution obligations which arise out of the failure
to
comply with applicable state or federal securities laws.
This
letter speaks as of the time of its delivery on the date it bears. We
do not assume any obligation to provide you with any subsequent opinion or
advice by reason of any fact about which we did not have knowledge at that
time,
by reason of any change subsequent to that time in any law or other governmental
requirement or interpretation thereof covered by any of our opinions or advice,
or for any other reason.
This
letter is being provided to you pursuant to the provision in the Underwriting
Agreement cited in the initial paragraph of this letter and may not be relied
upon by you for any other purpose. Without our written
consent: (i) no person other than the Underwriters may
rely on this letter for any purpose; (ii) this letter may not be
cited or quoted in any financial statement, prospectus, private placement
memorandum or other similar document; (iii) this letter may not be
cited or quoted in any other document or communication which might encourage
reliance upon this letter by any person or for any purpose excluded by the
restrictions in this paragraph; and (iv) copies of this letter may
not be furnished to anyone for purposes of encouraging such
reliance.
Very
truly yours,
LOCKE
LORD BISSELL & LIDDELL LLP
By
Seth
M.
Warner
EXHIBIT
D
FORM
OF
OPINION & 10B-5 STATEMENT OF UNDERWRITERS COUNSEL
[To
be
Provided by Davis Polk & Wardwell]
EXHIBIT E
ISSUER
GENERAL USE FREE WRITING PROSPECTUSES
|
1.
|
Pricing
Term Sheet dated October 23, 2007 and attached hereto as Exhibit
F.
|
EXHIBIT F
Filed
Pursuant to Rule 433
Registration
No. 333-137998
October
23, 2007
Panhandle
Eastern Pipe Line Company, LP
Pricing
Term Sheet
6.200%
Senior Notes due 2017
The
following information supplements the Preliminary Prospectus Supplement dated
October 23, 2007, and is filed pursuant to Rule 433, under Registration No.
333-137998
Issuer:
|
Panhandle
Eastern Pipe Line Company, LP
|
Security
Type:
|
Senior
Unsecured Notes
|
Ratings
(Moody’s / S&P / Fitch):
|
Baa3
/ BBB- / BBB
|
Pricing
Date:
|
October
23, 2007
|
Settlement
Date:
|
October
26, 2007
|
Maturity
Date:
|
November
1, 2017
|
Principal
Amount:
|
$300,000,000
|
Benchmark:
|
T
4.750% due August 15, 2017
|
Benchmark
Yield:
|
4.415%
|
Re-offer
Spread to Benchmark:
|
+
182 bps
|
Yield
to Maturity:
|
6.235%
|
Coupon:
|
6.200%
|
Public
Offering Price:
|
99.741%
|
Optional
Redemption:
|
T
+
30 bps
|
Interest
Payment Dates:
|
May
1 and November 1, beginning May 1, 2008
|
CUSIP
/ ISIN:
|
698455AA0
/ US698455AA09
|
Joint
Bookrunning Managers:
|
Banc
of America Securities LLC
J.P.
Morgan Securities Inc.
Wachovia
Capital Markets, LLC
|
Co-Managers:
|
Calyon
Securities (USA) Inc.
Lazard
Capital Markets LLC
Wells
Fargo Securities, LLC
The
Williams Capital Group, L.P.
|
The
issuer and its parent, Southern Union Company, have filed a registration
statement (including a base prospectus) and a prospectus supplement with
the
U.S. Securities and Exchange Commission (SEC) for the offering to which this
communication relates. Before you invest, you should read the prospectus
supplement for this offering, the issuer’s prospectus in that registration
statement and any other documents the issuer has filed with the SEC for more
complete information about the issuer and this offering. You may get these
documents for free by searching the SEC online data base (EDGAR) on the SEC
web
site at http://www.sec.gov. Alternatively, the issuer, any underwriter or
any
dealer participating in the offering will arrange to send you the prospectus
supplement and prospectus if you request it by calling Banc of America
Securities LLC toll-free at 1-800-294-1322, J.P. Morgan Securities Inc. collect
at 212-834-4533 or Wachovia Capital Markets, LLC toll-free at
1-866-289-1262.
ex4_1.htm
FIFTH
SUPPLEMENTAL INDENTURE
between
PANHANDLE
EASTERN PIPE LINE COMPANY, LP
Issuer
and
THE
BANK
OF NEW YORK TRUST COMPANY, N.A
Trustee
Dated
as
of October 26, 2007
AUSTIN:
0060018.00004:
371758v3
Table
of
Contents
ARTICLE
I
DEFINITIONS
|
SECTION
1.1Definition of Terms.
160; 3
|
ARTICLE
II
GENERAL
TERMS AND CONDITIONS OF THE SENIOR NOTES
|
SECTION
2.1Designation and Principal Amount of the Senior Notes. 10
|
|
SECTION
2.2Maturity of the Senior Notes. 10
|
|
SECTION
2.3Interest on the Senior Notes.
10
|
|
SECTION
2.4Form of the Senior Notes. 10
|
|
SECTION
2.5Redemption of the Senior Notes.
0; 10
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ARTICLE
III
COVENANTS
|
SECTION
3.1Limitation on Restricted Payments. &
#160; 11
|
|
SECTION
3.2Limitation on Liens.
160; 12
|
|
SECTION
3.3Restriction on Sale-Leasebacks.
0; 16
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|
SECTION
3.4Financial Information.
18
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SECTION
3.5Applicability of Covenants.
font> 19
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ARTICLE
IV
DEFAULT
|
SECTION
4.2Additional Event of Default. <
/font> 19
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ARTICLE
V
DEFEASANCE
|
SECTION
5.2Covenant Defeasance.
160; 19
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ARTICLE
VI
FORM
OF
SENIOR NOTES
|
SECTION
6.1Form of Senior Notes. &
#160; 20
|
ARTICLE
VII
ISSUANCE
OF SENIOR NOTES
|
SECTION
7.1Original Issue of Senior Notes.
0; 28
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SECTION
7.2Additional Senior Notes. 28
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SECTION
8.1Consent, Amendment and Waiver.
; 28
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SECTION
8.2Ratification of Indenture. 29
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SECTION
8.3Trustee Not Responsible for Recitals.
0; 29
|
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SECTION
8.4Governing Law. 29
|
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SECTION
8.5Separability. 29
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|
SECTION
8.6Counterparts. 29
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FIFTH
SUPPLEMENTAL INDENTURE, dated as of October 26, 2007 (the “Fifth Supplemental
Indenture”), between Panhandle Eastern Pipe Line Company, LP (formerly known as
Panhandle Eastern Pipe Line Company, LLC and Panhandle Eastern Pipe Line
Company), a Delaware limited partnership (the “Issuer”), and The Bank of New
York Trust Company, N.A. (as successor to J.P. Morgan 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, 2003, Southern Union Panhandle, 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 Notes, known as “4.80% Senior
Notes due 2008, Series B”; and (ii) the 6.05% Senior Notes due 2013 in the
initial
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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,
J.P. Morgan 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 J.P. Morgan Trust Company, National
Association;
WHEREAS,
the Issuer and Trustee executed the Fourth Supplemental Indenture, dated of
a
March 12, 2004, under which the Issuer issued two new series of its Debt
Securities: (i) the 2.75% Senior Notes due 2007, Series A, in the initial
principal amount of $200,000,000 (the “Series A Notes”), and (ii) the second
series, to be issued in exchange for the Series A Notes, known as the “2.75%
Senior Notes due 2007, Series B”;
WHEREAS,
in June 2004, the Issuer converted from a Delaware limited liability company
to
a Delaware limited partnership;
WHEREAS,
in October 2006, The Bank of New York Trust Company, N.A. became the Trustee
provided for in the Base Indenture as a result of the sale by The Bank of New
York Company, Inc. of its retail and regional middle market banking business
to
JP Morgan Chase & Co. in exchange for, among other things, the acquisition
of J.P. Morgan Trust Company, National Association;
WHEREAS,
the Issuer desires to issue a new series of Debt Securities known as the 6.20%
Senior Notes due 2017, in the principal amount of $300,000,000 (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 Fifth 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,
on October 23, 2007, the Issuer registered the Senior Notes under the Securities
Act pursuant to the Post-Effective Amendment No. 1 to Form S-3 Registration
Statement (Registration No. 333-137998);
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 Fifth
Supplemental Indenture, and all requirements necessary to make this Fifth
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 Fifth Supplemental Indenture
has been duly authorized in all respects:
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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:
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 Fifth
Supplemental Indenture;
(b) a
term defined anywhere in this Fifth 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
Fifth 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 Fifth Supplemental Indenture in
accordance with Section 2.04 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
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limited
partnership interests, including any Preferred Stock or letter stock;
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.
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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.
“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 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 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 any of Banc of America Securities LLC, J.P. Morgan
Securities Inc. and Wachovia Capital Markets, LLC (and their respective
successors) or, if no such firm is willing and able to select the applicable
Comparable Treasury Issue or perform
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the
other
functions of the Independent Investment Banker provided in the Indenture, an
independent investment banking institution of national standing appointed by
us
and reasonably acceptable to the Trustee.
“Initial
Senior Notes” means the initial $300,000,000 aggregate principal amount of
Senior Notes issued under this Fifth 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.
“Moody’s”
means Moody’s 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 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;
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(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 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.
“Prospectus”
shall mean the prospectus included in the 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
the
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.
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“Reference
Treasury Dealer” means each of Banc of America Securities LLC, J.P. Morgan
Securities Inc., and Wachovia Capital Markets, LLC (in each case, or its
affiliates and its successors); if any of the Reference Treasury Dealers resign,
the respective successor dealer shall be (1) a primary U.S. Government
Securities dealer in the City of New York (a “Primary Treasury Dealer”), and (2)
any other Primary Treasury Dealer selected by the Company.
“Reference
Treasury Dealer Quotations” means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
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
Statement” means that certain Post-Effective Amendment No. 1 to Form S-3
Registration Statement (Registration no. 333-137998) filed with the SEC by
Issuer and Southern Union on October 23, 2007.
“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 Fifth 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 Fifth Supplemental
Indenture. The Initial Senior Notes and the Additional Senior Notes
shall be treated as a single class for all purposes under this Fifth
Supplemental Indenture, and unless the context otherwise requires, all
references to the Senior Notes shall include the Initial Senior Notes and any
Additional Senior Notes.
“Standard
& Poor’s” means Standard & Poor’s, a division of The McGraw-Hill
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.
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“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 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 Fifth 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.
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GENERAL
TERMS AND CONDITIONS OF THE SENIOR NOTES
SECTION
1.2 Designation
and Principal Amount of the Senior Notes.
There
is
hereby authorized a single series of Debt Securities designated as the “6.20%
Senior Notes due 2017”, 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 Fifth
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 Senior Notes shall be $300,000,000.
SECTION
1.3 Maturity
of the Senior Notes.
The
Senior Notes will mature on November 1, 2017.
SECTION
1.4 Interest
on the Senior Notes.
Interest
shall accrue from the date set forth, and shall be payable on the Senior Notes
in the amount and as otherwise set forth, in the form of such Senior Note
appearing in Article VI of this Fifth Supplemental Indenture.
SECTION
1.5 Form
of the Senior Notes.
The
form
of the Senior Notes shall be substantially in the form provided for in Article
VI. The terms of the Senior Notes form part of this Fifth
Supplemental Indenture. The Senior Notes shall be represented by one
or more Global Notes in definitive, registered form, without interest
coupons. The Senior Notes will be represented by one or more Global
Notes in definitive, registered form, without interest coupons. The
Senior 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
Senior Notes).
SECTION
1.6 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) 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 30 basis points, plus, in either case, accrued
and unpaid interest thereon to the date of redemption.
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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
II
COVENANTS
SECTION
2.1 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;
(iv) (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%.
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:
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(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
2.2 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 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
(ii) or
any mortgage, pledge agreement, security agreement or other similar instrument
in existence on the date of the Indenture;
(iii) 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;
(iv) 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);
(v) 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);
(vi) 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;
(vii) 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;
(viii) any
Lien in favor of the Issuer or any Restricted Subsidiary;
(ix) 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;
(x) any
Lien upon property or assets of any foreign Restricted Subsidiary to secure
Debt
of that foreign Restricted Subsidiary;
(xi) Permitted
Liens;
(xii) 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;
(xiii) 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
(xiv) 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); providedfurther,
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 (viii), 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 Fifth Supplemental
Indenture) does not exceed the greater of 15% of Consolidated Net Tangible
Assets or 15% of Total Capital.
SECTION
2.3 Restriction
on Sale-Leasebacks.
(a) The
Issuer shall not, nor shall it permit any Restricted Subsidiary to, engage
in a
Sale-Leaseback Transaction, unless:
(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
Fifth
(iv) 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
(v) 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 Fifth Supplemental Indenture, do not exceed the
greater of 15% of Consolidated Net Tangible Assets or 15% of Total
Capital.
SECTION
2.4 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 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 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
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on
the
website www.panhandleenergy.com 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
2.5 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
III
DEFAULT
SECTION
3.1 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
3.2 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.
ARTICLE
IV
DEFEASANCE
SECTION
4.1 General.
All
of
the provisions of Article XI of the Base Indenture shall be applicable to the
Senior Notes.
SECTION
4.2 Covenant
Defeasance.
SECTION
4.3 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 Fifth Supplemental Indenture.
ARTICLE
V
FORM
OF SENIOR NOTES
SECTION
5.1 Form
of Senior Notes.
The
Senior Notes, and the Trustee’s Certificate of Authentication to be endorsed
thereon, are to be substantially in the following forms:
[FORM
OF
FACE OF SENIOR NOTES DUE 2017]
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.
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CUSIP
No. 698455
AA0 $[ ]
Panhandle
Eastern Pipe Line Company, LP
6.20%
SENIOR NOTE DUE 2017
PANHANDLE
EASTERN PIPE LINE COMPANY, LP, a Delaware limited partnership (the “Issuer”),
for value received, hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of [AMOUNT IN WORDS] Dollars
($[ ]) on November 1, 2017 (“Maturity”)
and to pay interest thereon from October 26, 2007 (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 May 1st and November
1st
in each year, commencing May 1, 2008, to the registered holders thereof on
the
preceding April 15 and October 15, respectively, and at Maturity at the rate
of
6.20% 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 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.
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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.
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IN
WITNESS WHEREOF, the Issuer has caused this instrument to be
executed.
Dated
[ ]
PANHANDLE
EASTERN PIPE LINE COMPANY, LP
By _______________
Name: _______________
Title: _______________
Attest:
By: ____________
Name: ____________
Title: ____________
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[FORM
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.
THE
BANK
OF NEW YORK TRUST COMPANY, N.A., as Trustee
By______________________
[Authorized
Signatory]
[FORM
OF
REVERSE OF SENIOR NOTE]
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 The Bank of New York Trust
Company, N.A.), further supplemented by the Fifth Supplemental Indenture dated
as of October 26, 2007 between the Issuer and The Bank of New York Trust
Company, N.A., 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 Fifth
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 30 basis points, plus, in either case, 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.
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“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 any of Banc of America Securities LLC, J.P. Morgan
Securities Inc. and Wachovia Capital Markets, LLC (and their respective
successors) or, if no such firm is willing and able to select the applicable
Comparable Treasury Issue or perform the other functions of the Independent
Investment Banker provided in the Indenture, an independent investment banking
institution of national standing appointed by us and reasonably acceptable
to
the Trustee.
“Reference
Treasury Dealer” means each of Banc of America Securities LLC, J.P. Morgan
Securities Inc., and Wachovia Capital Markets, LLC (in each case, or its
affiliates and its successors); if any of the Reference Treasury Dealers resign,
the respective successor dealer shall be (1) a primary U.S. Government
Securities dealer in the City of New York (a “Primary Treasury Dealer”), and (2)
any other Primary Treasury Dealer selected by the Company.
“Reference
Treasury Dealer Quotations” means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
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.
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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 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.
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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 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)
_______________________
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(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]
ARTICLE
VI
ISSUANCE
OF SENIOR NOTES
SECTION
6.1 Original
Issue of Senior Notes.
Upon
execution of this Fifth Supplemental Indenture, the Senior Notes in the initial
principal amount of $300,000,000 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.
SECTION
6.2 Additional
Senior Notes.
Upon
execution of this Fifth Supplemental Indenture, subject to Section 2.1
hereof, Additional Senior Notes may be executed by the Issuer. Such
Additional Senior 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.
ARTICLE
VII
MISCELLANEOUS
SECTION
7.1 Consent,
Amendment and Waiver.
For
purposes of Article VI and Article IX of the Base Indenture, it is understood
that the covenants and Events of Default included in this Fifth Supplemental
Indenture have been included solely for the benefit of the holders of the Senior
Notes and therefore any consent, amendment or waiver thereof shall require
the
consent of a majority in aggregate principal
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amount
of
the outstanding Senior Notes voting as a separate class or the consent of the
holders of each outstanding Senior Note, as the case may be.
SECTION
7.2 Ratification
of Indenture.
The
Base
Indenture, as supplemented by this Fifth Supplemental Indenture, is in all
respects ratified and confirmed, and this Fifth Supplemental Indenture shall
be
deemed part of the Indenture in the manner and to the extent herein and therein
provided. The provisions of this Fifth Supplemental Indenture shall
supersede the provisions of the Indenture to the extent the Indenture is
inconsistent herewith.
SECTION
7.3 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 Fifth Supplemental
Indenture.
SECTION
7.4 Governing
Law.
This
Fifth 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
7.5 Separability.
In
case
any one or more of the provisions contained in this Fifth 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 Fifth Supplemental Indenture
or of
the Senior Notes, but this Fifth 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
7.6 Counterparts.
This
Fifth 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.
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IN
WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed as of the day and year first above
written.
PANHANDLE
EASTERN PIPE LINE COMPANY, LP,
as
Issuer
By: /s/
Richard N.
Marshall
Name: Richard
N. Marshall
Title:Senior
Vice President and
Chief
Financial Officer
THE
BANK
OF NEW YORK TRUST COMPANY,
as
Trustee
By: /s/
Julie
Hoffman-Ramos
Name: Julie
Hoffman-Ramos
Title: Assistant
Treasurer
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ex5_1.htm
Locke
Lord Bissell & Liddell LLP |
|
Attorneys
& Counselors |
|
401
9th
Street N.W.
Suite
400 South
Washington,
D.C. 20004 |
Atlanta
• Austin • Chicago • Dallas • Houston • London Los Angeles
• New Orleans • New York • Sacramento Washington, D.C. |
Phone:
(202) 220-6900
Fax:
(202) 220-6945
www.lockelord.com |
October
23, 2007
Panhandle
Eastern Pipe Line Company, LP
5444
Westheimer Road
Houston,
Texas 77056
Ladies
and Gentlemen:
We
have
acted as counsel to Panhandle Eastern Pipe Line Company, LP, a Delaware limited
partnership (the “Company”), in connection with the offer and sale by
the Company of $300,000,000 principal amount of 6.20% senior notes due November
1, 2017 (the “Senior Notes”).
The
Senior Notes are being issued under the Indenture, dated as of March 29, 1999
(the “Base Indenture”), between the Company and The Bank of New York
Trust Company, N.A. (as successor to J.P. Morgan Trust Company, National
Association, Bank One Trust Company, National Association, and NBD Bank), as
trustee (the “Trustee”), as amended and supplemented by the fifth
supplemental indenture thereto to be dated as of October 26, 2007 (the
“Fifth Supplemental Indenture”), between the Company and the
Trustee. The Base Indenture, as amended and supplemented by the Fifth
Supplemental Indenture, is referenced herein as the
“Indenture”).
The
Senior Notes are being sold pursuant to an Underwriting Agreement, dated October
23, 2007 (the “Underwriting Agreement”), among the Company, Banc of
America Securities LLC, J.P. Morgan Securities Inc. and Wachovia Capital
Markets, LLC, as representatives of the underwriters named therein (the
“Underwriters”).
This
opinion is being furnished in accordance with the requirements of Item 601(b)(5)
of Regulation S-K under the Securities Act of 1933, as amended (the
“Securities Act”).
In
connection with this opinion, we have examined originals or copies, certified
or
otherwise identified to our satisfaction, of the following:
(a) the
Post-Effective Amendment No. 1 to the Registration Statement on Form S-3
(Registration No. 333-137998), including the base prospectus dated October
23,
2007 (the “Base Prospectus”), filed by the Company and Southern Union
Company (“Southern Union”) with the Securities and Exchange Commission
(the “Commission”) on October 23, 2007 (together with the documents
incorporated by reference therein, the “Post-Effective Amendment”), for
the purpose of registering the sale of the Senior Notes by the Company under
the
Securities Act;
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(b) the
Registration Statement on Form S-3 (No. 333-137998), including the related
prospectus, filed by Southern Union on October 13, 2006 (the “Initial
Registration Statement,” and together with the Post-Effective Amendment,
the “Registration Statement”);
(c) the
Company’s preliminary prospectus supplement dated October 23, 2007, covering the
offering of the Senior Notes through the Underwriters, in the form filed with
the Commission pursuant to Rule 424(b) of the general rules and regulations
promulgated under the Securities Act (the “Rules and Regulations”),
together with the Base Prospectus (together with the documents incorporated
by
reference therein, the “Preliminary Prospectus”);
(d) the
Company’s prospectus supplement dated October 23, 2007, covering the offering of
the Senior Notes through the Underwriters, in the form filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations (together with the
documents incorporated by reference therein, the “Final
Prospectus”);
(e) the
term sheet relating to the Senior Notes filed with the Commission as a free
writing prospectus pursuant to Rules 164 and 433 of the Rules and Regulations
on
October 23, 2007;
|
(f)
|
the
Underwriting Agreement;
|
|
(g)
|
the
form of the Senior Notes;
|
(h) the
global note executed by the Company pursuant to the Indenture, in the aggregate
principal amount of $300,000,000, representing the Senior Notes purchased and
sold pursuant to the Underwriting Agreement;
(i) certified
copies of the Certificate of Limited Partnership of the Company and the
Agreement of Limited Partnership of the Company; and
(j) a
certified copy of the resolutions adopted by the Board of Directors of Southern
Union (the sole member in Southern Union Panhandle LLC (the “General
Partner”), which is the sole general partner of the Company) and the
resolutions adopted by the pricing committee thereof.
We
have
also examined the originals, or duplicates or certified or conformed copies,
of
such records, agreements, instruments and other documents and have made such
other and further investigations as we have deemed relevant and necessary in
connection with the opinions expressed herein. As to questions of
fact material to this opinion, we have relied upon certificates of public
officials and of officers and representatives of the Company and Southern
Union.
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In
rendering the opinion set forth below, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents
of
all documents submitted to us as duplicates or certified or conformed copies
and
the authenticity of the originals of such latter documents. We have
also assumed the Indenture has been duly authorized, executed and delivered
by
the Trustee and the Indenture is the valid and legally binding obligation of
the
Trustee; the Trustee for the Indenture is duly organized, validly existing
and
in good standing under the laws of its jurisdiction of organization; the Trustee
is duly qualified to engage in the activities contemplated by the Indenture;
the
Trustee is in compliance, generally and with respect to acting as Trustee under
the Indenture, with all applicable laws and regulations; and the Trustee has
the
requisite organizational and legal power and authority to perform its
obligations under the applicable Indenture.
Based
upon the foregoing, and subject to the additional qualifications and limitations
set forth below, we are of the opinion that:
1. When
the Company and the Trustee duly execute and deliver the Fifth Supplemental
Indenture that establishes the specific terms of the Senior Notes, and such
Senior Notes have been duly authenticated by the Trustee and duly executed
and
delivered on behalf of the Company against payment therefore in accordance
with
the terms and provisions of the Indenture as contemplated by the Registration
Statement, the Base Prospectus, the Preliminary Prospectus and the Final
Prospectus, and assuming that (a) the terms of the Senior Notes as executed
and
delivered are as described in the Registration Statement, the Base Prospectus,
the Preliminary Prospectus and the Final Prospectus, and (b) the Senior Notes
are then issued and sold as contemplated in the Registration Statement, the
Base
Prospectus, the Preliminary Prospectus and the Final Prospectus, the Senior
Notes will constitute valid and legally binding obligations of the
Company.
The
opinion set forth above is subject to the following exceptions, limitations
and
qualifications: (i) the effect of bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights and remedies of creditors; (ii)
the
effect of general principals of equity, including without limitation, concepts
of materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, regardless of
whether enforcement is considered in a proceeding in equity or at law, and
the
discretion of the court before which any proceeding therefore may be brought,
(iii) the unenforceability under certain circumstances under law or court
decisions of provisions providing for the indemnification of, or contribution
to, a party with respect to a liability where such indemnification or
contribution is contrary to public policy; (iv) the unenforceability of any
waiver of rights or defenses with respect to stay, extension or usury laws;
and
(v) the effect of acceleration of Senior Notes on the collectibility of any
portion of the stated principal amount thereof that might be determined to
constitute unearned interest thereon.
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The
opinion rendered herein is limited to the internal laws of the State of New
York, the General Corporation Law of the State of Delaware, the Delaware Revised
Uniform Limited Partnership Act and the federal laws of the United
States.
We
hereby
consent to the filing of this opinion as an exhibit to a Current Report on
Form
8-K of the Company and further consent to the reference to our name under the
caption “Legal Matters” in the Final Prospectus. In giving this
consent, we do not admit that we are in the category of persons whose consent
is
required under Section 7 of the Securities Act or under the Rules and
Regulations relating thereto. This opinion speaks as of its date, and
we undertake no (and hereby disclaim any) obligation to update this
opinion.
This
opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other
purpose or relied upon by or furnished to any other person without our prior
written consent.
Locke
Lord Bissell & Liddell LLP
By: /s/
Seth M.
Warner
Seth
M.
Warner
ex23_1.htm
CERTIFICATE
SUPPORTING LEGAL OPINION
This
Certificate is being issued to provide Locke Lord Bissell & Liddell LLP (the
“Law Firm”) with certain factual information required in order to render
opinion letters (the “Opinions”) in connection with the transactions
described in and contemplated by (i) the Underwriting Agreement, dated October
23, 2007 (the “Underwriting Agreement”), among Panhandle Eastern Pipe
Line Company, LP (the “Company”) and Banc of America Securities LLC, J.P.
Morgan Securities Inc. and Wachovia Capital Markets, LLC, as representatives
of
the several underwriters named in Exhibit A therein, and (ii) the Indenture,
dated as of March 29, 1999 (the “Base Indenture”) between the Company and
The Bank of America Trust Company, N.A. (successor to J.P. Morgan Trust Company,
National Association, Bank One Trust Company, National Association, and NBD
Bank) as trustee (the “Trustee”), as supplemented by the Fifth
Supplemental Indenture, dated as of October 26, 2007 (the “Fifth Supplemental
Indenture and, together with the Base Indenture, the
“Indenture”). Unless otherwise defined herein, the terms used
herein are used as defined in the Opinions.
With
knowledge that the matters set forth herein will be relied upon by the Law
Firm
in rendering the Opinions, the undersigned, having knowledge of the matters
set
forth herein, hereby certifies, to the best knowledge of the undersigned, as
follows:
1.
|
The
undersigned is the duly elected and qualified Vice President, Assistant
General Counsel and Secretary of Southern Union Company, a Delaware
corporation and sole member of Southern Union Panhandle LLC, the
general
partner of the Company (“Parent”), and as such officer has all
requisite power and authority to execute and deliver this Certificate
to
the Law Firm.
|
2.
|
The
undersigned has taken all necessary steps to verify the information
set
forth in this Certificate.
|
3.
|
The
copies of the resolutions of the board of directors of Parent (on
behalf
of Parent as well as for Parent acting in its capacity as the sole
member
of Southern Union Panhandle LLC, acting as the general partner of
the
Company) and the Pricing Committee of the Company, attached hereto
as
Exhibits A-1, A-2 and A-3, are true, complete and
correct, and have not been amended or revoked since the date adopted
and
are the only authorizations and resolutions relating to the matters
that
are the subject matter of the
Opinions.
|
4.
|
A
true and complete copy of the Certificate of Limited Partnership
of the
Company is attached hereto as Exhibit B. Such
Certificate of Limited Partnership is in full force and effect as
of the
date hereof and has not been otherwise amended, modified or
supplemented.
|
5.
|
A
true and complete copy of the Agreement of Limited Partnership of
the
Company is attached hereto as Exhibit C. Such Agreement
of Limited Partnership is in full force and effect as of the date
hereof
and has not been otherwise amended, modified or
supplemented.
|
6.
|
A
true and complete copy of the form of $300,000,000 aggregate principal
amount of the Company’s 6.20% Senior Notes due 2017 (the
“Securities”) to be issued pursuant to the Indenture and which are
to be sold pursuant to the provisions of the Underwriting Agreement
is
attached hereto as Exhibit
D.
|
7.
|
The
Company has the limited partnership power and authority to own, lease
and
operate its properties and to conduct its business as described in
the
General Disclosure Package and the Final Prospectus and to enter
into and
perform its obligations under the Underwriting
Agreement. Attached hereto as Exhibit E is a list of
jurisdictions in which each of the Company’s and its subsidiaries’
ownership or lease of property or the conduct of its business requires
qualification as a foreign entity.
|
8.
|
The
execution, delivery and performance of the Underwriting Agreement
and the
Indenture, the issuance and sale of the Securities being delivered
on the
date hereof, and the compliance by the Company with the terms of,
and the
consummation of the transactions contemplated by, the Underwriting
Agreement, the Indenture and the Securities will not (i) conflict
with, or
result in a breach or violation of, any of the terms or provisions
of, or
constitute a default under, or result in the creation or imposition
of any
lien, charge or encumbrance upon any property or assets of the Company
or
any of its Material Subsidiaries pursuant to, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument listed
as
an exhibit in the Company’s Annual Report on Form 10-K for the year ended
December 31, 2006 or in any report subsequently filed by the Company
pursuant to Section 13(a) or Section 15(d) of the Exchange Act prior
to
the date hereof, (ii) result in any violation of the Organizational
Documents or (iii) result in the violation of any law, statute or
regulation (other than the blue sky laws of the various states as
to which
we express no opinion) or any judgment or order of any court or arbitrator
or governmental authority except, in the case of clauses (i) and
(iii)
above, for such conflicts, breaches, violations or defaults that
would
not, individually or in the aggregate, have a Material Adverse
Effect.
|
9.
|
There
are no franchises, deeds of trust, contracts, indentures, mortgages,
loan
agreements, notes, leases or other instruments that would be required
to
be described or referred to in the General Disclosure Package and
the
Final Prospectus that are not described or referred to in the General
Disclosure Package or Final Prospectus other than those described
or
referred to therein or incorporated by reference thereto, and the
descriptions thereof or references thereto are correct in all material
respects.
|
10.
|
No
consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court is required for the consummation
of the transactions contemplated by the Underwriting Agreement in
connection with the offering, issuance and sale of the Securities
by the
Company, except for (i) the registration of the Securities under
the
Securities Act, which registration has been effected, and (ii) such
consents, approvals, authorizations, orders and filings as may be
required
under applicable state securities laws in connection with the purchase
and
distribution of the Securities by the
Underwriters.
|
11.
|
Neither
the Company nor any of its Material Subsidiaries is a party to, and
none
of their respective properties are the subject of, any material pending
legal or governmental proceedings, other than ordinary routine litigation
incidental to their respective businesses or proceedings disclosed
in its
public reports filed with the Securities and Exchange
Commission.
|
12.
|
The
Company is not and, after giving effect to the offering and sale
of the
Securities and the application of the proceeds thereof as described
in the
Final Prospectus, will not be an “investment company,” as defined in the
Investment Company Act of 1940, as
amended.
|
13.
|
Each
person who, as an officer of the Company or Southern Union or director
of
Parent, signed the Registration Statement, the Underwriting Agreement,
the
Indenture or the other agreements, documents and instruments contemplated
thereby was, at the respective times of such signing and the delivery
thereof, duly elected, qualified and acting as such officer or
director.
|
14.
|
The
undersigned is not aware of any reason why any of the assumptions
stated
in any of the Opinions is false. The undersigned is not aware
of any fact that would make reliance on those assumptions
unreasonable.
|
15.
|
Neither
the undersigned nor the Company is aware of any fact or circumstance
which
would render any representation or warranty made by the Company in
the
Underwriting Agreement, or in any exhibit, certificate or other document
delivered by the Company pursuant to or in connection with the
Underwriting Agreement or the transactions contemplated thereby,
false or
misleading. Neither the Underwriting Agreement nor any exhibit,
certificate or other document delivered by the Company pursuant to
or in
connection with the Underwriting Agreement or the transactions
contemplated thereby (taken as a whole) omits to state a material
fact
necessary to be stated therein to make the statements contained therein
not misleading.
|
16.
|
Each
of the Underwriting Agreement and Indenture was delivered by the
Company
with the intent to be legally bound
thereby.
|
17.
|
Neither
the undersigned nor the Company is aware of any fact or circumstance
which
would render any conclusion reached in the Opinions or any statement
in
the Opinions inaccurate or misleading in any
respect.
|
[Signature
Page Follows]
AUSTIN:
0060018.00004:
372434v2
IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of 26th day of
October
2007.
By:__________________
Name: Robert
M. Kerrigan, III
Title: Vice President, Assistant General
Counsel
and Secretary
AUSTIN:
0060018.00004:
372434v2