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Exhibit 4.1
SPECTRA ENERGY CAPITAL,
LLC,
AS ISSUER,
SPECTRA ENERGY
CORP,
AS
GUARANTOR,
AND
THE BANK OF NEW YORK TRUST
COMPANY, N.A.
AS TRUSTEE
Thirteenth Supplemental
Indenture
Dated as of April 10,
2008
$500,000,000 6.20% Senior
Notes due 2018
TABLE OF CONTENTS
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ARTICLE 1 6.20% SENIOR NOTES DUE
2018
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SECTION 1.01
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Establishment. |
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SECTION 1.02
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Definitions. |
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SECTION 1.03
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Payment
of Principal and Interest. |
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SECTION 1.04
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Denominations. |
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SECTION 1.05
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Global
Securities. |
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SECTION 1.06
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Guarantee
of the Notes. |
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SECTION 1.07
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Redemption at the Option of Spectra Capital. |
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SECTION 1.08
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Defeasance. |
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SECTION 1.09
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Modification of Guarantee. |
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SECTION 1.10
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Amendment
to Section 101 of the Original Indenture. |
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SECTION 1.11
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Paying
Agent. |
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ARTICLE 2 MISCELLANEOUS
PROVISIONS
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SECTION 2.01
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Recitals. |
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SECTION 2.02
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Ratification and Incorporation of Original
Indenture. |
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SECTION 2.03
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Executed
in Counterparts. |
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SECTION 2.04
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Governing
Law. |
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Exhibit A – Form of 6.20% Senior
Note due 2018
Exhibit B – Certificate of
Authentication of 6.20% Senior Note due 2018
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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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THIS THIRTEENTH SUPPLEMENTAL
INDENTURE is made as of the 10th day of April, 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 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 Thirteenth
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
Thirteenth 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
6.20% SENIOR NOTES DUE
2018
SECTION 1.01
Establishment.
There is hereby established a
new series of Securities to be issued under the Indenture, to be
entitled the “6.20% Senior Notes due 2018” (the
“Notes”). There is to be authenticated and delivered
$500,000,000 aggregate principal amount of Notes, and no further
Notes shall be
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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.
Each Note 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 April 15 and October 15,
commencing October 15, 2008.
“Original Issue
Date” means April 10, 2008.
“Regular Record
Date” means, with respect to each Interest Payment Date, the
close of business on the April 1 and October 1, as
applicable, immediately preceding such Interest Payment Date
(whether or not a Business Day).
“Stated Maturity”
means April 15, 2018.
SECTION 1.03 Payment of
Principal and Interest.
The principal of the Notes
shall be due at Stated Maturity (unless earlier redeemed). The
unpaid principal amount of the Notes shall bear interest at the
rate of 6.20% 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 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.
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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 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, 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
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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 40 basis points, plus, in
either case, accrued and unpaid interest on the principal amount
being redeemed to such Redemption Date.
“Treasury Rate”
means, with respect to any Redemption Date for the Notes,
(i) the yield, under the heading which represents the average
for the immediately preceding week, appearing in the most recently
published statistical release designated “H.l5(519)” or
any successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption “Treasury
Constant Maturities,” for the maturity corresponding to the
Comparable Treasury Issue; provided that if no maturity is
within three months before or after the Stated Maturity, yields for
the two published maturities most closely corresponding to the
Comparable Treasury Issue shall be determined, and the Treasury
Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding to the nearest month; or (ii) if
such release (or any successor release) is not published during the
week preceding such calculation date or does not contain such
yields, 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 for the
Notes, (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 Banc of America Securities LLC (and its
successors), Deutsche Bank Securities Inc. (and its successors),
Greenwich Capital Markets, Inc. (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 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.
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.
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The Trustee may select for redemption
Notes and portions of Notes 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 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&
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