SIXTH SUPPLEMENTAL INDENTURE, dated as of January 27, 2009
(herein called the “ Sixth Supplemental Indenture
”), between TENNESSEE GAS PIPELINE COMPANY, a Delaware
corporation (herein called the “ Company ”),
having its principal office at 1001 Louisiana Street, Houston,
Texas 77002 and WILMINGTON TRUST COMPANY, (as successor to JPMorgan
Chase Bank (formerly known as The Chase Manhattan Bank)), a banking
corporation duly organized and existing under the laws of the State
of Delaware, as trustee under the Indenture referred to below
(herein called the “ Trustee ”).
RECITALS OF THE
COMPANY
WHEREAS, the
Company has heretofore executed and delivered to the Trustee the
Indenture, dated as of March 4, 1997 (herein called the “
Original Indenture ”), providing for the issuance from
time to time of one or more series of the Company’s unsecured
debentures, notes or other evidences of indebtedness (herein called
the “ Securities ”), the terms of which are to
be determined as set forth in Section 301 of the Original
Indenture; and
WHEREAS,
Section 901 of the Original Indenture provides, among other things,
that the Company and the Trustee may enter into indentures
supplemental to the Original Indenture for, among other things, the
purpose of establishing the form or terms of Securities of any
series as permitted by Sections 201 and 301 of the Original
Indenture; and
WHEREAS, the
Company desires to create a series of the Securities in an
aggregate principal amount of $250,000,000, which series shall be
designated the 8.000% Notes due 2016 (the “ Notes
”), and all action on the part of the Company necessary to
authorize the issuance of the Notes under the Original Indenture
and this Sixth Supplemental Indenture has been duly taken;
and
WHEREAS, all
acts and things necessary to make the Notes, when executed by the
Company and completed, authenticated and delivered by the Trustee
as provided in the Original Indenture and this Sixth Supplemental
Indenture, the valid and binding obligations of the Company and to
constitute these presents a valid and binding supplemental
indenture and agreement according to its terms, have been done and
performed;
NOW, THEREFORE,
THIS SIXTH SUPPLEMENTAL INDENTURE WITNESSETH:
That in
consideration of the premises and the issuance of the Notes, the
Company covenants and agrees with the Trustee, for the equal and
proportionate benefit of all Holders of the Notes, as
follows:
ARTICLE
1
Definitions
Section
1.01. Defined Terms; Vote and
Consent. For purposes
hereof, capitalized terms used herein and not otherwise defined
herein or in the recitals shall have the meanings assigned to such
terms in the Original Indenture. For all purposes of this Sixth
Supplemental Indenture and the Original Indenture, as amended by
this Sixth Supplemental Indenture, the term “ Notes
” shall include the Initial 2016 Notes (as defined below) and
any Exchange Notes (as defined below) to be issued and exchanged
for any Initial 2016 Notes pursuant to the Registration Rights
Agreement (as defined below) and this Sixth Supplemental
Indenture. For purposes of the Original Indenture, as
amended by this Sixth Supplemental Indenture, all Initial 2016
Notes and Exchange Notes shall vote and consent together as one
series of Securities and shall not have the right to vote and
consent as a series separate from one another on any matter under
the Original Indenture, as so amended by this Sixth Supplemental
Indenture.
Section
1.02. Definitions. The following
terms have the meanings given to them in this Section
1.02:
“
Additional Interest ” shall have the meaning assigned
to that term in Section 2.03.
“
Closing Date ” means January 27, 2009.
“
Distribution Compliance Period ” shall have the
meaning assigned to that term in Section 3.04(a).
“
Exchange Notes ” means any securities issued by the
Company pursuant to the Exchange Offer or otherwise pursuant to an
effective Registration and containing terms identical in all
material respects to the Initial 2016 Notes for which they are
exchanged except that (i) interest thereon shall accrue from the
last date on which interest was paid on the Initial 2016 Notes or,
if no such interest has been paid, from the date of issuance of the
Initial 2016 Notes, (ii) the Exchange Notes will not contain the
legend appearing on the face of the Initial 2016 Notes in the form
recited in this Sixth Supplemental Indenture and will not contain
terms with respect to transfer restrictions and (iii) the Exchange
Notes will not contain terms with respect to the payment of
Additional Interest for failure to comply with the Registration
Rights Agreement.
“
Exchange Offer ” means the exchange offer by the
Company of Exchange Notes for Initial 2016 Notes pursuant to the
Registration Rights Agreement.
“
Global Security ” shall have the meaning set forth in
Section 2.02.
“
Initial 2016 Notes ” means the Notes issued under this
Sixth Supplemental Indenture which are not Exchange
Notes.
“
QIB ” means a “qualified institutional
buyer” as defined in Rule 144A.
“
Registration ” means a registered exchange offer for
the Notes by the Company or other registration of the Notes under
the Securities Act pursuant to and in accordance with the terms of
the Registration Rights Agreement.
“
Registration Default ” shall have the meaning set
forth in Section 2.03.
“
Registration Rights Agreement ” means the Registration
Rights Agreement, dated as of January 27, 2009, among the Company
and Banc of America Securities LLC, Credit Suisse Securities (USA)
LLC, Deutsche Bank Securities Inc., and Greenwich Capital Markets,
Inc., on behalf of the initial purchasers of the Notes.
“
Regulation S ” means Regulation S under the Securities
Act.
“
Regulation S Global Security ” shall have the meaning
set forth in Section 2.02.
“Restricted
Legend ” means
the legend initially set forth on the Notes in the form set forth
in Section 3.02 hereof.
“
Restricted Security ” shall have the meaning set forth
in Section 3.02(b).
“
Rule 144A ” means Rule 144A under the Securities
Act.
“
Rule 144A Global Security ” shall have the meaning set
forth in Section 2.02.
“
Securities Act ” shall have the meaning set forth in
Section 3.02(b)(1).
ARTICLE 2
Terms and Issuance of 8.000% Notes Due 2016
Section
2.01. Issue of Notes.
A
series of Securities which shall be designated the “8.000%
Notes due 2016” shall be executed, authenticated and
delivered in accordance with the provisions of, and shall in all
respects be subject to, the terms, conditions and covenants of the
Original Indenture, including without limitation the terms set
forth in this Sixth Supplemental Indenture (including the form of
Notes referred to in Section 2.02 hereof). The aggregate
principal amount of Notes which may be authenticated and delivered
shall be $250,000,000 (subject to Notes authenticated and delivered
as provided in Section 2.04 of this Sixth Supplemental Indenture or
upon registration of transfer of, or in exchange for, or in lieu
of, other Notes of this series pursuant to Section 304, 305, 306,
906 or 1107 under the Original Indenture). The entire
amount of Notes may forthwith be executed by the Company and
delivered to the Trustee and shall be authenticated by the Trustee
and delivered to or upon the order of the Company pursuant to
Section 303 of the Original Indenture.
Section
2.02. Forms of Notes and Authentication
Certificate. Notes offered
and sold to QIBs in reliance on Rule 144A will be issued in the
form of one or more registered notes in global form without
interest coupons (the “ Rule 144A Global Securities
”), and Notes offered and sold in offshore transactions to
non-U.S. persons in reliance on Regulation S, will be issued in the
form of one or more registered notes in global form without
interest coupons (the “ Regulation S Global Securities
”), in each case pursuant to Section 204 of the Original
Indenture (each, a “ Global Security ”), with
the Global Securities legend and, if applicable, the restricted
securities legend set forth in Section 3.02 hereof and registered
in the name of the Depositary or its nominee. The Depository Trust
Company shall be the Depositary for such Global Securities. The
forms and terms of the Notes and the Trustee’s certificate of
authentication shall be substantially as set forth on Exhibit A
hereto. The terms and provisions contained in the form of Notes set
forth in Exhibit A shall constitute, and are hereby expressly made,
a part of the Original Indenture as supplemented by this Sixth
Supplemental Indenture.
Section
2.03. Registration Default . In the
event that a Registration Default (as defined in the Registration
Rights Agreement) occurs, the Company shall pay additional interest
(in addition to the interest otherwise due) (“ Additional
Interest ”) to the Holder during the first 90-day period
immediately following the occurrence of any such Registration
Default in an amount equal to 0.25% per annum (regardless of the
number of Registration Defaults), increasing by 0.25% per annum
with respect to each subsequent 90-day period, up to a maximum of
1.00% per annum, from and including the date on which any such
Registration Default shall occur (subject to the terms of the
Registration Rights Agreement) to but excluding the earlier of (1)
the date on which all such Registration Defaults have been cured or
(2) the date on which all the Notes otherwise become freely
transferable by Holders other than affiliates of the Company
without further registration under the Securities
Act. The Company shall pay amounts due in respect of
Additional Interest on each Interest Payment Date (or, if the
Company shall default in the payment of interest on any Interest
Payment Date, on the date such interest is otherwise paid as
provided in the Original Indenture).
Section
2.04. Additional Notes . This series of Notes
may be reopened, without the consent of the Holders thereof, for
increases in the aggregate principal amount of the Notes and
issuance of additional Notes of this series ranking equally with
these Notes in all respects, so that such additional Notes shall be
consolidated and form a single series with these Notes and shall
have the same terms as to status, redemption or otherwise as these
Notes, provided , however , that no Event of Default
has occurred or is continuing with respect to such
Notes.
ARTICLE 3
Transfer and Exchange
Section
3.01. Transfer and Exchange of Global Securities
. (a) The transfer and exchange of beneficial interests
in the Global Securities shall be effected through the Depositary,
in accordance with this Sixth Supplemental Indenture (including
applicable restrictions on transfer set forth herein, if any) and
the procedures of the Depositary therefor.
Section
3.02. Legends . (a) Each Global Security shall
bear the following legend on the face thereof:
THIS NOTE IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS NOTE MAY NOT BE TRANSFERRED TO, OR REGISTERED
OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON
OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER
MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE. EVERY NOTE AUTHENTICATED AND DELIVERED UPON
REGISTRATION OF, TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF,
THIS NOTE SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING,
EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS
NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
(b) Except as
otherwise provided in Section 3.03, each Note that is an Initial
2016 Note (each a “ Restricted Security ”) shall
bear the following legend (the “ Restricted Legend
”) on the face thereof:
(1) THIS NOTE
(OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933
(THE “SECURITIES ACT”), AND THIS NOTE MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER
OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
(2) THE HOLDER
OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS
NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, OR (V) TO AN INSTITUTIONAL
“ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A)(1),
(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS
ACQUIRING THE NOTE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL “ACCREDITED INVESTOR” FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, IN EACH
OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED
TO IN CLAUSE (A) ABOVE.
(3) THE HOLDER
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND; AND
(4) THE HOLDER
AGREES THAT, BEFORE THE HOLDER OFFERS, SELLS OR OTHERWISE TRANSFERS
THIS NOTE, TENNESSEE GAS PIPELINE COMPANY MAY REQUIRE THE HOLDER OF
THIS NOTE TO DELIVER A WRITTEN OPINION, CERTIFICATIONS AND/OR OTHER
INFORMATION THAT IT REASONABLY REQUIRES TO CONFIRM THAT SUCH
PROPOSED TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE UNITED STATES.
AS USED IN
THIS NOTE, THE TERMS “OFFSHORE TRANSACTION,”
“U.S. PERSON” AND “UNITED STATES” HAVE THE
MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT.
(c)
Each Note shall bear the following legend on the face
thereof:
THIS NOTE IS
ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET
SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND THE
RULES AND REGULATIONS THEREUNDER. FOR EACH $1,000 PRINCIPAL AMOUNT
OF THIS NOTE, (1) THE ISSUE PRICE IS $948.81; (2) THE
AMOUNT OF THE ORIGINAL ISSUE DISCOUNT IS $51.19; (3) THE ISSUE
DATE IS JANUARY 27, 2009; AND (4) THE YIELD TO MATURITY IS
9.000% PER ANNUM.
Section 3.03.
Removal of Restricted Legend . (i) If the Company determines
(upon the advice of counsel and such other certifications and
evidence as the Company may reasonably require) that any Note is
eligible for resale pursuant to Rule 144 under the Securities Act
(or a successor provision) and that the Restricted Legend is no
longer necessary or appropriate in order to ensure that subsequent
transfers of such Note (or a beneficial interest therein) are
effected in compliance with the Securities Act, or (ii) (x) after
an Initial 2016 Note is sold pursuant to an effective Registration,
pursuant to the Registration Rights Agreement (if applicable) or
otherwise, or (y) after an Initial 2016 Note is exchanged for an
Exchange Note, the Company may instruct the Trustee to cancel such
Note and issue to the Holder thereof (or to its transferee) an
Exchange Note of like tenor and amount, registered in the name of
the Holder thereof (or its transferee), that does not bear the
Restricted Legend, and the Trustee will comply with such
instruction.
Section
3.04. Registration of Transfer or Exchange
. The registration of transfer or exchange of any Note
(or a beneficial interest therein) that bears the Restricted Legend
may only be made in compliance with the provisions of the
Restricted Legend and as set forth below.
(a) Prior
to the 40th day after the later of the commencement of the offering
of the Notes and the Closing Date (such period through and
including such 40th day, the “ Distribution Compliance
Period ”), transfers by an owner of a beneficial interest
in a Regulation S Global Security to a transferee who takes
delivery of such interest through a Rule 144A Global Security of
that series will be made only upon receipt by the Trustee of a
written certification from the transferor of the beneficial
interest to the effect that such transfer is being made to a Person
whom the transferor reasonably believes is a QIB in a transaction
meeting the requirements of Rule 144A.
(b) Transfers
by an owner of a beneficial interest in the Rule 144A Global
Security to a transferee who takes delivery through the Regulation
S Global Security of that series, whether before or after the
expiration of the Distribution Compliance Period, will be made only
upon receipt by the Trustee of a certification from the transferor
to the effect that such transfer is being made in accordance with
Regulation S or Rule 144 under the Securities Act and that, if such
transfer is being made prior to the expiration of the Distribution
Compliance Period, the interest transferred will be held
immediately thereafter through Euroclear Bank S.A./NV, as operator
of the Euroclear System or Clearstream Banking, societe anonyme,
Luxembourg.
(c) Any
beneficial interest in one of the Global Securities that is
transferred to a Person who takes delivery in the form of an
interest in another Global Security of that series will, upon
transfer, cease to be an interest in the initial Global Security of
that series and will become an interest in the other Global
Security of that series and, accordingly, will thereafter be
subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Security of
that series for as long as it remains such an interest.
Section
3.05. Preservation of Information.
The
Trustee will retain copies of all certificates, opinions and other
documents received in connection with the registration of transfer
or exchange of a Note (or a beneficial interest therein) in
accordance with its customary policy, and the Company will have the
right to inspect and make copies thereof at any reasonable time
upon written notice to the Trustee.
Section
3.06. Acknowledgment of Restrictions; Indemnification;
No Obligation of Trustee. By its
acceptance of any Note bearing the Restricted Legend, each Holder
of such a Note acknowledges the restrictions on registrations of
transfer of such Note set forth in this Sixth Supplemental
Indenture and in the Restricted Legend and agrees that it will
register the transfer of such Note only as provided in this Sixth
Supplemental Indenture. The Security Registrar shall not
register a transfer of any Note unless such transfer complies with
the restrictions on transfer of such Note set forth in this Sixth
Supplemental Indenture. In connection with any
registration of transfer of Notes, each Holder agrees by its
acceptance of the Notes to furnish the Security Registrar or the
Company such certifications, legal opinions or other information as
either of them may reasonably require to confirm that such
registration of transfer is being made pursuant to an exemption
from, or a transaction not subject to, the registration
requirements of the Securities Act; provided that the Security
Registrar shall not be required to determine (but may rely on a
determination made by the Company with respect to) the sufficiency
of any such certifications, legal opinions or other
information.
The
Security Registrar shall retain copies of all letters, notices and
other written communications received pursuant to the Indenture in
accordance with its customary policy. The Company shall
have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon
the giving of reasonable written notice to the Security
Registrar.
Each Holder of
a Note agrees to indemnify the Company and the Trustee against any
liability that may result from the transfer, exchange or assignment
of such Holder’s Note in violation of any provision of this
Sixth Supplemental Indenture and/or applicable United States
Federal or state securities law.
The
Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed
under this Sixth Supplemental Indenture or under applicable law
with respect to any registrations of transfer of any interest in
any Note (including any transfers between or among members of, or
participants in, the Depositary or beneficial owners of interests
in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the
terms of, this Sixth Supplemental Indenture, and to examine the
same to determine substantial compliance as to form with the
express requirements hereof.
ARTICLE 4
Miscellaneous
Section 4.01.
Amendment to Section
205 of the Original Indenture. From and after the date of this
Sixth Supplemental Indenture, Section 205 of the Original Indenture
shall be amended by deleting such provision in its entirety and
replacing it with the following:
SECTION 205
Form of Trustee’s Certificate of
Authentication. The Trustee’s certificates of
authentication shall be in substantially the following
form:
This is one of
the Securities of the series designated therein referred to in the
within-mentioned Indenture.
WILMINGTON
TRUST COMPANY,
By:
__________________________
Section
4.02. Execution as Supplemental
Indenture. This Sixth
Supplemental Indenture is executed and shall be construed as an
indenture supplemental to the Original Indenture and, as provided
in the Original Indenture, this Sixth Supplemental Indenture forms
a part thereof. Except as herein expressly otherwise defined, the
use of the terms and expressions herein is in accordance with the
definitions, uses and constructions contained in the Original
Indenture.
Section
4.03. Responsibility for Recitals,
Etc. The recitals
herein and in the Notes (excep
