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
Fifteenth Supplemental Indenture
Dated as of August 28, 2009
$300,000,000 5.65% Senior Notes due 2020
TABLE OF CONTENTS
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Page
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ARTICLE 1
NOTES
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2
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SECTION 1.01
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Establishment.
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2
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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
Exhibit B – Certificate of
Authentication
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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.
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i
THIS FIFTEENTH SUPPLEMENTAL
INDENTURE is made as of the 28th day of August, 2009, 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 amended and 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 amended and
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 Fifteenth 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 a 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 Fifteenth 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:
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ARTICLE 1
NOTES
SECTION 1.01
Establishment.
There is hereby established a new
series of Securities to be issued under the Indenture, to be
entitled the “5.65% Senior Notes due 2020” (the
“Notes”). There is to be authenticated and delivered
$300,000,000 aggregate principal amount of Notes, and no further
Notes 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 authenticated and delivered as provided in the
last paragraph of Section 301 of the Original Indenture shall
be fungible with the original Notes for United States federal
income tax purposes. The Notes shall be issued in fully registered
form without coupons.
The 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 the Notes shall
be in substantially the form set forth in Exhibit B
hereto.
The Notes shall be dated the date of
authentication thereof.
SECTION 1.02 Definitions.
The following defined terms used
herein with respect to the 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 1 and September 1, commencing
March 1, 2010.
“Original Issue Date”
means August 28, 2009.
“Regular Record Date”
means, with respect to each Interest Payment Date, the close of
business on the February 15 and August 15, as applicable,
immediately preceding such Interest Payment Date (whether or not a
Business Day).
“Stated Maturity” means
March 1, 2020.
SECTION 1.03 Payment of Principal
and Interest.
The principal of the Notes shall be
due at the Stated Maturity (unless earlier redeemed). The unpaid
principal amount of the Notes shall bear interest at the rate of
5.65% 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 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 shall
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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 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
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 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 the Notes
shall include interest accrued to but excluding the respective
Interest Payment Dates. Interest payments for the 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
the 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 the 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 (as defined below) 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 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.
The Notes shall be issued in
denominations of $2,000 or any integral multiples of $1,000 above
such amount.
SECTION 1.05 Global
Securities.
The 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 exchangeable for,
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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 by the Depository or any such nominee
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 the 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 the Notes.
SECTION 1.07 Redemption at the
Option of Spectra Capital.
The 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 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 35 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 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.
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“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 RBS Securities Inc. (or its affiliates
and its successors), Credit Suisse Securities (USA) LLC (or its
affiliates and its successors), UBS Securities LLC (or its
affiliates and its successors) and one other nationally recognized
investment banking firm that is a primary U.S. government
securities dealer (a “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 such a
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.
If less than all of the Notes are to
be redeemed, the Trustee shall select the Notes or portions of
Notes to be redeemed by such method as the Trustee shall deem fair
and appropriate. The Trustee may select for redemption Notes and
portions of Notes in amounts of whole multiples of
$1,000.
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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 the Notes shall be subject to the condition that
(a) in the event of Covenant Defeasance of the 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 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 the 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 Service addressed to Spectra Capital, (ii) a
published ruling of the United States Internal Revenue Service
pertaining to a comparable form of transaction or (iii) a
change in the applicable United States Federal income tax law
(including regulations) after the date hereof.
SECTION 1.09 Modification of
Guarantee.
Clause (1) of Section 902
of the Original Indenture is hereby amended and restated in
relation solely to the Notes to read as follows:
“(1) change the Stated
Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof
or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would
be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502 or change the coin or
currency in which any Security or any premium or interest thereon
is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or change the obligations of Spectra Energy under the
Guarantee in any manner adverse to the Holders,
or”.
SECTION 1.10 Amendment to
Section 101 of the Original Indenture.
The definition of
“Subsidiary” in Section 101 of the Original
Indenture is hereby amended and restated in relation solely to the
Notes to read as follows:
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““Subsidiary”
means, as to any Person, a corporation or other entity of which
more than 50% of the outstanding shares of capital stock or other
ownership interests having ordinary voting power (other than
capital stock or other ownership interests having such power only
by reason of contingency) is at the time owned, directly or
indirectly through one or more intermediaries, or both, by such
Person.”
SECTION 1.11 Paying
Agent.
The Trustee shall initially serve as
Paying Agent with respect to the Notes, with the Place of Payment
initially being the office of The Bank of New York Mellon, 101
Barclay Street, New York, New York.
ARTICLE 2
MISCELLANEOUS PROVISIONS
SECTION 2.01 Recitals.
The recitals in this Fifteenth
Supplemental Indenture are made by Spectra Capital and Spectra
Energy only and not by the Trustee, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Fifteenth
Supplemental Indenture. All of the provisions contained in the
Original Indenture in respect of the rights, privileges,
immunities, powers and duties of the Trustee shall be applicable in
respect of the Notes and of this Fifteenth Supplemental Indenture
as fully and with like effect as if set forth herein in
full.
SECTION 2.02 Ratification and
Incorporation of Original Indenture.
As supplemented hereby, the Original
Indenture is in all respects ratified and confirmed, and the
Original Indenture and this Fifteenth Supplemental Indenture shall
be read, taken and construed as one and the same
instrument.
SECTION 2.03 Executed in
Counterparts.
This Fifteenth Supplemental
Indenture may be executed in several counterparts, each of which
shall be deemed to be an original, and such counterparts shall
together constitute but one and the same instrument.
SECTION 2.04 Governing
Law.
This Fifteenth Supplemental
Indenture, the Notes, the Guarantee