Exhibit 4.1
SPECTRA ENERGY CAPITAL,
LLC,
AS ISSUER,
SPECTRA ENERGY
CORP,
AS GUARANTOR,
AND
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.
AS TRUSTEE
Fourteenth Supplemental
Indenture
Dated as of September 8,
2008
$250,000,000 5.90% Senior Notes
due 2013
$250,000,000 7.50% Senior Notes
due 2038
TABLE OF
CONTENTS 1
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Page
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ARTICLE 1
NOTES
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1
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SECTION 1.01
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Establishment.
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1
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SECTION 1.02
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Definitions.
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2
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SECTION 1.03
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Payment of
Principal and Interest.
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2
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SECTION 1.04
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Denominations.
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3
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SECTION 1.05
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Global
Securities.
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3
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SECTION 1.06
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Guarantee of
the Notes.
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4
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SECTION 1.07
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Redemption at
the Option of Spectra Capital.
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4
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SECTION 1.08
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Defeasance.
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6
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SECTION 1.09
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Modification of
Guarantee.
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6
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SECTION 1.10
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Amendment to
Section 101 of the Original Indenture.
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6
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SECTION 1.11
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Paying
Agent.
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7
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ARTICLE 2
MISCELLANEOUS PROVISIONS
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7
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SECTION 2.01
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Recitals.
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7
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SECTION 2.02
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Ratification
and Incorporation of Original Indenture.
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7
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SECTION 2.03
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Executed in
Counterparts.
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7
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SECTION 2.04
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Governing
Law.
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7
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Exhibit A
– Form of Note
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Exhibit B
– Certificate of Authentication
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1
This Table of
Contents does not constitute part of the Indenture or have any
bearing upon the interpretation of any of its terms and
provisions.
i
THIS FOURTEENTH SUPPLEMENTAL
INDENTURE is made as of the 8th day of September, 2008, by and
among Spectra Energy Capital, LLC, a Delaware limited liability
company (formerly known as Duke Capital LLC and successor to Duke
Capital Corporation), as issuer (“Spectra Capital”),
Spectra Energy Corp, a Delaware corporation, as guarantor
(“Spectra Energy”), and The Bank of New York Mellon
Trust Company, N.A. (formerly known as The Bank of New York Trust
Company, N.A.)(successor to JPMorgan Chase Bank, N.A. (formerly
known as The Chase Manhattan Bank)), a national banking
association, as trustee (the “Trustee”).
W I T N E S S E T H:
WHEREAS, Spectra Capital has
heretofore entered into a Senior Indenture, dated as of
April 1, 1998, with the Trustee, as supplemented to the date
hereof with applicability to the Notes (as defined below),
including by the Twelfth Supplemental Indenture dated
December 14, 2007 (the “Twelfth Supplemental
Indenture”), whereby Spectra Energy entered into a Guarantee
for the benefit of the Holders and the Trustee (as so supplemented,
the “Original Indenture”);
WHEREAS, the Original Indenture is
incorporated herein by this reference and the Original Indenture,
as amended and supplemented to the date hereof with applicability
to the Notes, including by this Fourteenth Supplemental Indenture,
is herein called the “Indenture”;
WHEREAS, under the Indenture, a new
series of Securities may at any time be established in accordance
with the provisions of the Indenture and the terms of such series
may be described by a supplemental indenture executed by the
parties hereto;
WHEREAS, Spectra Capital hereby
proposes to create under the Indenture two new series of
Securities, and Spectra Energy hereby proposes to Guarantee such
Securities in accordance with the terms of the
Indenture;
WHEREAS, additional Securities of
other series hereafter established, except as may be limited in the
Indenture as at the time supplemented and modified, may be issued
from time to time pursuant to the Indenture as at the time
supplemented and modified; and
WHEREAS, all conditions necessary to
authorize the execution and delivery of this Fourteenth
Supplemental Indenture and to make it a valid and binding
obligation of Spectra Capital and Spectra Energy have been done or
performed.
NOW, THEREFORE, in consideration of
the agreements and obligations set forth herein and for other good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
NOTES
SECTION 1.01
Establishment.
There is hereby established two new
series of Securities to be issued under the Indenture, to be
entitled the “5.90% Senior Notes due 2013” (the
“2013 Notes”) and the “7.50% Senior
1
Notes due 2038” (the “2038
Notes” and, collectively with the 2013 Notes, the
“Notes”). There is to be authenticated and delivered
$250,000,000 aggregate principal amount of 2013 Notes and
$250,000,000 aggregate principal amount of 2038 Notes, and no
further Notes of a series shall be authenticated and delivered
except as provided by Section 304, 305, 306, 906 or 1106 or
the last paragraph of Section 301 of the Original Indenture;
provided that any additional Notes of a series authenticated
and delivered as provided in the last paragraph of Section 301
of the Original Indenture shall be fungible with the original Notes
of such series for United States federal income tax purposes. Each
series of Notes shall be issued in fully registered form without
coupons.
Each series of Notes, together with
the endorsement of the Guarantee thereon, shall be in substantially
the form set forth in Exhibit A hereto, and the form of the
Trustee’s Certificate of Authentication for each series of
Notes shall be in substantially the form set forth in Exhibit B
hereto.
Each Note shall be dated the date of
authentication thereof.
SECTION
1.02 Definitions.
The following defined terms used
herein with respect to each series of Notes, shall, unless the
context otherwise requires, have the meanings specified below.
Capitalized terms used herein for which no definition is provided
herein shall have the meanings set forth in the Original
Indenture.
“Interest Payment Dates”
means each March 15 and September 15, commencing
March 15, 2009.
“Original Issue Date”
means September 8, 2008.
“Regular Record Date”
means, with respect to each Interest Payment Date, the close of
business on the March 1 and September 1, as applicable,
immediately preceding such Interest Payment Date (whether or not a
Business Day).
“Stated Maturity” means
September 15, 2013 for the 2013 Notes and September 15,
2038 for the 2038 Notes.
SECTION
1.03 Payment of Principal and Interest.
The principal of each series of
Notes shall be due at the Stated Maturity for such series (unless
earlier redeemed). The unpaid principal amount of the 2013 Notes
shall bear interest at the rate of 5.90% per annum until paid
or duly provided for and the unpaid principal amount of the 2038
Notes shall bear interest at the rate of 7.50% per annum until
paid or duly provided for, and such interest will accrue from the
Original Issue Date or from the most recent Interest Payment Date
to which interest has been paid or duly provided for. Interest
shall be paid semi-annually in arrears on each Interest Payment
Date to the Person or Persons in whose name the Notes of the
applicable series are registered on the Regular Record Date for
such Interest Payment Date, even if such Notes are canceled after
such Regular Record Date and on or before such Interest Payment
Date. Any such interest that is not so punctually paid or duly
provided for
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shall forthwith cease to be payable to the
Holders on such Regular Record Date and may either be paid to the
Person or Persons in whose name the Notes of such series are
registered at the close of business on a Special Record Date for
the payment of such defaulted interest to be fixed by the Trustee
(“Special Record Date”), notice whereof shall be given
to Holders of the Notes of such series not less than ten days prior
to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes of such series may be
listed, and upon such notice as may be required by any such
exchange, all as more fully provided in the Original
Indenture.
Payments of interest on each series
of Notes shall include interest accrued to but excluding the
respective Interest Payment Dates. Interest payments for each
series of Notes shall be computed and paid 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 such series of Notes is not a Business
Day, then payment of the interest payable on such date shall be
made on the next succeeding day that is a Business Day (and without
any interest or payment in respect of any such delay) with the same
force and effect as if made on the date the payment was originally
payable. “Business Day” means a day other than
(i) a Saturday or a Sunday, (ii) a day on which banking
institutions in The City of New York are authorized or obligated by
law or executive order to remain closed or (iii) a day on
which the Corporate Trust Office is closed for business.
Payment of principal of, premium, if
any, and interest on each series of Notes shall be made in such
coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
Payments of principal of, premium, if any, and interest on Notes
represented by a Global Security shall be made by wire transfer of
immediately available funds to the Holder of such Global Security;
provided that, in the case of payments of principal and premium, if
any, such Global Security is first surrendered to the Paying Agent.
If any of the Notes of a series are no longer represented by a
Global Security, payments of principal, premium, if any, and
interest on such Notes shall be made at the office of the Paying
Agent maintained for such purpose; provided that (i) in
the case of payments of principal and premium, if any, such Notes
are first surrendered to the Paying Agent; and (ii) payments
of interest may be made, at the option of Spectra Capital,
(A) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or
(B) by wire transfer at such place and to such account at a
banking institution in the United States as may be designated in
writing to the Trustee at least 16 days prior to the date for
payment by the Person entitled thereto.
SECTION 1.04
Denominations.
Each series of Notes shall be issued
in denominations of $2,000 or any integral multiples of $1,000
above such amount.
SECTION 1.05 Global
Securities.
Each series of Notes shall initially
be issued in the form of one or more Global Securities registered
in the name of the Depositary (which initially shall be The
Depository Trust Company) or its nominee (the “Global
Securities”). Except under the limited circumstances
described below, Notes represented by such Global Security or
Global Securities shall not be
3
exchangeable for, and shall not otherwise be
issuable as, Notes in definitive form. The Global Securities
described above may not be transferred except by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or to a
successor Depositary or its nominee.
A Global Security shall be
exchangeable for Notes registered in the names of persons other
than the Depositary or its nominee only if (i) the Depositary
notifies Spectra Capital that it is unwilling or unable to continue
as a Depositary for such Global Security and no successor
Depositary shall have been appointed by Spectra Capital within 90
days of receipt by Spectra Capital of such notification, or if at
any time the Depositary ceases to be a clearing agency registered
under the Exchange Act at a time when the Depositary is required to
be so registered to act as such Depositary and no successor
Depositary shall have been appointed by Spectra Capital within 90
days after it becomes aware of such cessation or (ii) subject
to the Depositary’s procedures, Spectra Capital in its sole
discretion determines that such Global Security shall be so
exchangeable. Any Global Security that is exchangeable pursuant to
the preceding sentence shall be exchangeable for Notes registered
in such names as the Depositary shall direct.
SECTION 1.06 Guarantee of the
Notes.
The Guarantor hereby agrees that the
Guarantee set forth in Section 102 of the Twelfth Supplemental
Indenture shall apply with respect to each series of Notes as if
the Notes were listed on Schedule A to the Twelfth Supplemental
Indenture and constituted “Notes” thereunder. The
Guarantor agrees that Sections 103 and 106 of the Twelfth
Supplemental Indenture shall be for the benefit of each series of
Notes.
SECTION 1.07 Redemption at the
Option of Spectra Capital.
Each series of Notes shall be
redeemable, in whole at any time or in part from time to time, at
the option of Spectra Capital on any date (a “Redemption
Date”), at a Redemption Price equal to the greater of
(i) 100% of the principal amount of the Notes of the series to
be redeemed and (ii) the sum of the present values of the
Remaining Scheduled Payments thereon, discounted to such Redemption
Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus 50 basis points,
plus accrued and unpaid interest on the principal amount being
redeemed to such Redemption Date.
“Treasury Rate” means,
with respect to any Redemption Date, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption Date.
The Treasury Rate shall be calculated on the third Business Day
preceding such Redemption Date.
“Comparable Treasury
Issue” means the United States Treasury security selected by
an Independent Investment Banker as having a maturity comparable to
the remaining term of the applicable series of 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 comparable maturity to the remaining
term of such Notes.
4
“Comparable Treasury
Price” means, with respect to any Redemption Date,
(i) the average of the Reference Treasury Dealer Quotations
for such Redemption Date, after excluding the highest and lowest of
such Reference Treasury Dealer Quotations, or (ii) if an
Independent Investment Banker obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such
quotations.
“Independent Investment
Banker” means one of the Reference Treasury Dealers appointed
by Spectra Capital.
“Reference Treasury
Dealer” means each of J.P. Morgan Securities Inc. (or its
affiliates and its successors), Merrill Lynch, Pierce,
Fenner & Smith Incorporated (or its affiliates and its
successors), one other nationally recognized investment banking
firm that is a primary U.S. Government securities dealer (a
“Primary Treasury Dealer”) selected by Wachovia Capital
Markets, LLC (or its affiliates and its successors) and one other
Primary Treasury Dealer specified from time to time by Spectra
Capital; provided, however , that if any of the foregoing
shall cease to be a nationally recognized investment banking firm
that is a Primary Treasury Dealer, Spectra Capital shall substitute
therefor another nationally recognized investment banking firm that
is a Primary Treasury Dealer.
“Reference Treasury Dealer
Quotations” means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by an
Independent Investment Banker, 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 an Independent
Investment Banker by such Reference Treasury Dealer as of 3:30
p.m., New York City time, on the third Business Day preceding such
Redemption Date.
“Remaining Scheduled
Payments” means, with respect to each Note to be redeemed,
the remaining scheduled payments of the principal thereof and
interest thereon that would be due after the related Redemption
Date but for such redemption; provided, however , that, if
such Redemption Date is not an Interest Payment Date with respect
to such Note, the amount of the next succeeding scheduled interest
payment thereon will be reduced (solely for the purpose of the
definition of “Remaining Scheduled Payments”) by the
amount of interest accrued thereon to such Redemption
Date.
Notwithstanding Section 1104 of
the Original Indenture, the notice of redemption with respect to
the foregoing redemption need not set forth the Redemption Price
but only the manner of ascertainment thereof.
In the event that any Redemption
Date is not a Business Day, then payment of the Redemption Price
shall be made on the next succeeding day that is a Business Day
(and without any interest or payment in respect of any such delay)
with the same force and effect as if made on such Redemption
Date.
Spectra Capital shall notify the
Trustee of the Redemption Price with respect to the foregoing
redemption promptly after the calculation thereof. The Trustee
shall not be responsible for calculating said Redemption
Price.
5
If less than all of the Notes of a
series are to be redeemed, the Trustee shall select the Notes or
portions of Notes of such series to be redeemed by such method as
the Trustee shall deem fair and appropriate. The Trustee may select
for redemption Notes of such series and portions of Notes of such
series in amounts of whole multiples of $1,000.
The Notes shall not have a sinking
fund.
SECTION 1.08 Defeasance.
In addition to the conditions set
forth in Section 1304 of the Original Indenture, the
application of Section 1302 or 1303 of the Original Indenture
with respect to each series of Notes shall be subject to the
condition that (a) in the event of Covenant Defeasance of such
series of Notes pursuant to Section 1303 of the Original
Indenture, Spectra Capital shall have delivered to the Trustee an
Opinion of Counsel from a nationally recognized counsel acceptable
to the Trustee or a private letter ruling issued by the United
States Internal Revenue Service to the effect that the Holders of
the Notes of such series will not recognize income, gain or loss
for United States Federal income tax purposes as a result of
Spectra Capital’s exercise of its option under
Section 1303 of the Original Indenture and will be subject to
United States Federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such
option had not been exercised; and (b) in the event of
Defeasance of such series of Notes pursuant to Section 1302 of
the Original Indenture, Spectra Capital shall have delivered to the
Trustee an Opinion of Counsel from a nationally recognized counsel
acceptable to the Trustee to the effect referred to in clause
(a) with respect to such Defeasance, which opinion is based on
(i) a private letter ruling issued by the United States
Internal Revenue