SOUTHERN NATURAL GAS COMPANY as Issuer and WILMINGTON TRUST COMPANY as Original Trustee and THE BANK OF NEW YORK TRUST COMPANY, N.A. as Series Trustee FIFTH SUPPLEMENTAL INDENTURE Dated as of October 15, 2007 To INDENTURE Dated as of June 1, 1987
Exhibit
4.A
as
Issuer
and
WILMINGTON
TRUST COMPANY
as
Original
Trustee
and
THE
BANK OF
NEW YORK TRUST COMPANY, N.A.
as
Series
Trustee
Dated
as of
October 15, 2007
To
INDENTURE
Dated
as of
June 1, 1987
TABLE
OF
CONTENTS
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Page
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1
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SECTION
1.01.
Relation to Indenture.
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1
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SECTION
1.02.
Definitions.
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1
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SECTION
1.03.
General References.
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2
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ARTICLE
2
Amendments to Original Indenture
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2
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SECTION
2.01.
Definition of “Affiliate”.
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2
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SECTION
2.02.
Legal Existence.
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2
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SECTION
2.03.
Consolidation, Merger and Sale.
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2
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SECTION
2.04.
Supplemental Indentures Without Consent of Holders.
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2
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SECTION
2.05.
Non-Recourse to any General Partner; No Personal Liability of Officers,
Directors, Employees, Partners, Etc.
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3
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ARTICLE
3
Miscellaneous
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3
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SECTION
3.01.
Certain Trustee Matters.
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3
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SECTION
3.02.
Continued Effect.
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3
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SECTION
3.03.
Governing Law.
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3
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SECTION
3.04.
Counterparts.
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4
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FIFTH
SUPPLEMENTAL INDENTURE, dated as of October 15, 2007 (this
“Fifth Supplemental Indenture”), among (i)
SOUTHERN NATURAL GAS COMPANY, a Delaware corporation
(the
“Company”), (ii) WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as trustee under the Indenture
referred to below except as otherwise provided below (in such capacity, the
“Original Trustee”) (as successor-in-interest to
JPMorgan Chase Bank, National Association, successor to Manufacturers Hanover
Trust Company, pursuant to the Instrument of Resignation, Appointment and
Acceptance, dated as of February 27, 2003 (the “2003 Resignation and
Appointment”)), and (iii) THE BANK OF NEW YORK TRUST
COMPANY, N.A., a national banking association, as trustee under the
Indenture referred to below with respect to the series of Securities designated
5.90% Notes Due 2017 issued pursuant to the Third Supplemental Indenture (as
defined below) (in such capacity, the “Series
Trustee”).
RECITALS
OF
THE COMPANY
WHEREAS,
the
Company has issued Securities pursuant to the Indenture, dated as of June 1,
1987 (the “Original Indenture”), as amended and
supplemented by (i) the First Supplemental Indenture, dated as of September
30,
1997 (the “First Supplemental Indenture”), (ii) the
Second Supplemental Indenture, dated as of February 13, 2001 (the
“Second Supplemental Indenture”), (iii) the 2003
Resignation and Appointment, (iv) the Third Supplemental Indenture, dated as
of
March 26, 2007 (the “Third Supplemental Indenture”)
and (v) the Fourth Supplemental Indenture, dated as of May 4, 2007 (the
“Fourth Supplemental Indenture”) (the Original
Indenture, as so amended and supplemented by the First Supplemental Indenture,
the Second Supplemental Indenture, the 2003 Resignation and Appointment, the
Third Supplemental Indenture and the Fourth Supplemental Indenture, being
referred to herein as the “Indenture”);
and
WHEREAS,
Section
12.02 of the Original Indenture provides that, with the consent (evidenced
as
provided in Section 10.01 of the Original Indenture) of the Holders of not
less
than a majority in aggregate principal amount of the Outstanding Securities
of
each series affected by a supplemental indenture, the Company and the trustee
under the Indenture may from time to time and at any time enter into an
indenture or indentures supplemental to the Original Indenture for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the
provisions of the Original Indenture or of any supplemental indenture or
modifying in any manner the rights of the Holders of the Securities of each
such
series; and
WHEREAS,
the
Company has heretofore delivered or is delivering contemporaneously herewith
to
the Original Trustee and the Series Trustee (i) a copy of resolutions of the
Board of Directors of the Company authorizing the execution of this Fifth
Supplemental Indenture, (ii) evidence of the written consent of the Holders
set
forth in the immediately preceding paragraph, (iii) the Opinion of Counsel
referred to in Section 12.06 of the Original Indenture and (iv) an Officers’
Certificate in connection herewith; and
WHEREAS,
all acts
and things necessary to make this Fifth Supplemental Indenture a valid and
binding agreement in accordance with the Original Indenture have been done
or
performed;
NOW,
THEREFORE, in
consideration of the premises, agreements and obligations set forth herein
and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree, for the equal and
proportionate benefit of all Securityholders, as follows:
ARTICLE
1
Relation
to
Indenture; Definitions
SECTION
1.01. Relation
to Indenture.
With
respect to
each series of Securities, this Fifth Supplemental Indenture constitutes an
integral part of the Indenture.
SECTION
1.02. Definitions.
For
all purposes of
this Fifth Supplemental Indenture, capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned thereto in the
Original Indenture.
SECTION
1.03. General
References.
All
references in
this Fifth Supplemental Indenture to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Fifth
Supplemental Indenture; and the terms “herein”, “hereof”,
“hereunder” and any other word of similar import refers to
this Fifth
Supplemental Indenture.
ARTICLE
2
Amendments
to Original Indenture
With
respect to
each series of Securities, the Original Indenture is hereby amended as set
forth
below.
SECTION
2.01. Definition
of “Affiliate”.
Section
1.01 of the
Original Indenture is hereby amended by inserting, in its appropriate
alphabetical position, the following definition:
“Affiliate”
of
any
specified person means any other person directly or indirectly controlling
or
controlled by or under direct or indirect common control with such specified
person. For the purposes of this definition, “control” when used with
respect to any person means the power to direct the management and policies
of
such person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
SECTION
2.02. Legal
Existence.
Section
6.04 of the
Original Indenture is hereby amended and restated to read, in its entirety,
as
follows:
SECTION
6.04. Subject to Article Thirteen, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
legal existence and franchises; provided, however, that the
Company shall not be required to preserve any such franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is
not
disadvantageous in any material respect to the Holders; and provided
further that this Section 6.04 shall not prohibit the Company from
consummating any statutory conversion of the Company into any form of
non-corporate legal entity (including without limitation a general partnership,
limited partnership or limited liability company) so long as (immediately after
giving effect to such conversion) at least one corporation is a co-issuer party
to this Indenture and to each series of Securities at any time issued hereunder
and is jointly and severally liable with respect to any and all obligations
of
the Company under this Indenture and each such series of Securities, as a
primary obligor and not as a guarantor or surety.
SECTION
2.03. Consolidation,
Merger and Sale.
Section
13.01 of
the Original Indenture is hereby amended by adding the following new paragraph
to appear at the end of such section.
Notwithstanding
the
foregoing, this Section 13.01 shall not prohibit the Company from consummating
any statutory conversion of the Company into any form of non-corporate legal
entity (including without limitation a general partnership, limited partnership
or limited liability company) so long as (immediately after giving effect to
such conversion) at least one corporation is a co-issuer party to this Indenture
and to each series of Securities at any time issued hereunder and is jointly
and
severally liable with respect to any and all obligations of the Company under
this Indenture and each such series of Securities, as a primary obligor and
not
as a guarantor or surety.
SECTION
2.04. Supplemental
Indentures Without Consent of Holders.
Section
12.01 of
the Original Indenture is hereby amended as follows:
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(a)
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by
deleting
the “and” appearing at the end of clause
(h);
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(b)
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by
deleting
the period (“.”) appearing at the end of clause (i) and replacing it with
“; and”; and
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(c)
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by
adding the
following additional clause (j) to appear immediately following clause
(i):
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(j) to
add a corporate co-issuer party to this Indenture and each series of Securities
as described in Sections 6.04 and 13.01 of this Indenture.
SECTION
2.05. Non-Recourse
to any General Partner; No Personal Liability of Officers, Directors, Employees,
Partners, Etc.
Section
16.12 of
the Original Indenture is hereby amended and restated to read, in its entirety,
as follows:
SECTION
16.12 The Trustee, and each Holder of a Security by its acceptance
thereof, will be deemed to have agreed in this Indenture that (1) neither any
general partner of the Company nor such general partner's assets (nor any of
its
Affiliates other than the Company or any corporate co-issuer, nor their
respective assets) shall be liable for any of the obligations of the Company
or
any corporate co-issuer under this Indenture or such Securities, and (2) no
director, officer, employee, stockholder, member, manager, limited partner
or
other holder of the equity securities, as such, of the Company any corporate
co-issuer, the Trustee, any general partner of the Company or any Affiliate
of
any of the foregoing entities shall have any personal liability in respect
of
the obligations of the Company or any corporate co-issuer under this
Indenture or such Securities by reason of his, her or its
status. Accordingly, without limiting the generality of the
foregoing, obligations of the Company and any corporate co-issuer under this
Indenture and the Securities hereunder are non-recourse to any general partner,
director, officer, employee, stockholder, member, manager, limited partner
or
other holder of the equity securities, as such, of the Company, any corporate
co-issuer and their respective Affiliates (other than the Company or any
corporate co-issuer), and are payable only out of the cash flow and assets
of
the Company and any corporate co-issuer.
ARTICLE
3
Miscellaneous
SECTION
3.01. Certain
Trustee Matters.
The
recitals
contained herein shall be taken as the statements of the Company, and neither
the Original Trustee nor the Series Trustee assumes any responsibility for
their
correctness.
Neither
the
Original Trustee nor the Series Trustee makes any representations as to the
validity or sufficiency of this Fifth Supplemental Indenture or the proper
authorization or the due execution hereof by the Company.
In
entering into
this Fifth Supplemental Indenture, the Original Trustee and the Series Trustee
shall be entitled to the benefit of every provision of the Indenture (to the
extent applicable to the Original Trustee or Series Trustee, as the case may
be), whether or not elsewhere herein so provided.
SECTION
3.02. Continued
Effect.
Except
as expressly
supplemented and amended by this Fifth Supplemental Indenture, the Indenture
shall continue in full force and effect in accordance with the provisions
thereof, and the Indenture (as supplemented and amended by this Fifth
Supplemental Indenture) is in all respects hereby ratified and
confirmed. This Fifth Supplemental Indenture and all its provisions
shall be deemed a part of the Indenture in the manner and to the extent herein
and therein provided.
SECTION
3.03. Governing
Law.
This
Fifth
Supplemental Indenture shall be governed by and construed in accordance with
the
laws of the State of New York.
SECTION
3.04. Counterparts.
This
instrument 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 but one and
the
same instrument.
(Signature
Page Follows)
IN
WITNESS WHEREOF,
the parties hereto have caused this Fifth Supplemental Indenture to be duly
executed and delivered, all as of the day and year first above
written.
By: /s/▇▇▇▇
▇.
▇▇▇▇▇▇
Name: ▇▇▇▇
▇.
▇▇▇▇▇▇
Title: Vice
President
and Treasurer
WILMINGTON
TRUST
COMPANY
as
Original
Trustee
By: /s/▇▇▇▇▇▇▇
▇. ▇▇▇▇▇,
▇▇.
▇▇▇▇▇▇▇
▇.
▇▇▇▇▇, ▇▇., Senior Financial Services Officer
Authorized
Signatory
THE
BANK OF NEW
YORK TRUST COMPANY, N.A.
as
Series
Trustee
By: /s/▇▇▇▇▇
Echausee
▇▇▇▇▇ Echausee, Trust Officer
Authorized
Signatory