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AMERIGAS PARTNERS, L.P.
AMERIGAS EAGLE FINANCE CORP.
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$60,000,000
SERIES C AND SERIES D
10% SENIOR NOTES DUE 2006
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INDENTURE
Dated April 4, 2001
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FIRST UNION NATIONAL BANK
TRUSTEE
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CROSS-REFERENCE TABLE
Trust Indenture Act Section Indenture Section
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310(a)(1).............................. 7.10
(a)(2)................................. 7.10
(a)(3)................................. N.A.
(a)(4)................................. N.A.
(a)(5)................................. 7.10
(b).................................... 7.8; 7.10
(c).................................... N.A.
311(a)................................. 7.11
(b).................................... 7.11
(c).................................... N.A.
312(a)................................. 2.5
(b).................................... 10.3
(c).................................... 10.3
313(a)................................. 7.6
(b)(1)................................. N.A.
(b)(2)................................. 7.6
(c).................................... 7.6
(d).................................... 7.6
314(a)................................. 4.3; 4.4
(b).................................... N.A.
(c)(1)................................. 10.4
(c)(2)................................. 10.4
(c)(3)................................. N.A.
(d).................................... 10.4
(e).................................... 10.5
(f).................................... N.A.
315(a)................................. 7.1(2)
(b).................................... 7.5
(c).................................... 7.1(1)
(d).................................... 7.1(3)
(e).................................... 6.11
316(a)(last sentence).................. 2.9
(a)(1)(A).............................. 6.5
(a)(1)(B).............................. 6.4
(a)(2)................................. N.A.
(b).................................... 6.7
(c).................................... 9.4
317(a)(1).............................. 6.8
(a)(2)................................. 6.9
(b).................................... 2.4
318(a)................................. 10.1
(b).................................... N.A.
(c).................................... 10.1
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N.A. means not applicable
This cross-reference table is not part of the Indenture.
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TABLE OF CONTENTS
ARTICLE 1: DEFINITIONS AND INCORPORATION BY REFERENCE 6
1.1 Definitions................................................. 6
1.2 Other Definitions........................................... 21
1.3 Incorporation by Reference of Trust Indenture Act........... 22
1.4 Rules of Construction....................................... 22
ARTICLE 2: THE NOTES 22
2.1 Form and Dating............................................. 22
2.2 Execution and Authentication................................ 23
2.3 Registrar and Paying Agent.................................. 23
2.4 Paying Agent to Hold Money in Trust......................... 24
2.5 Holder Lists................................................ 24
2.6 Transfer and Exchange....................................... 24
2.7 Replacement Notes........................................... 30
2.8 Outstanding Notes........................................... 30
2.9 Treasury Notes.............................................. 30
2.10 Temporary Notes............................................ 30
2.11 Cancellation............................................... 31
2.12 Defaulted Interest......................................... 31
ARTICLE 3: REDEMPTION AND OFFERS TO PURCHASE 31
3.1 Notice to Trustee........................................... 31
3.2 Selection of Notes to Be Redeemed........................... 31
3.3 Notice of Redemption........................................ 32
3.4 Effect of Notice of Redemption.............................. 32
3.5 Deposit of Redemption Price................................. 32
3.6 Notes Redeemed in Part...................................... 33
3.7 Optional Redemption......................................... 33
3.8 Mandatory Redemption........................................ 33
3.9 Offer to Purchase by Application of Excess Proceeds......... 33
ARTICLE 4: COVENANTS 34
4.1 Payment of Notes............................................ 34
4.2 Maintenance of Office or Agency............................. 35
4.3 Reports..................................................... 35
4.4 Compliance Certificate...................................... 35
4.5 Taxes....................................................... 36
4.6 Stay, Extension and Usury Laws.............................. 36
4.7 Partnership and Corporate Existence......................... 36
4.8 Limitation on Additional Indebtedness....................... 36
4.9 Limitation on Restricted Payments........................... 37
4.10 Limitation on Liens........................................ 38
4.11 Limitation on Transactions with Affiliates................. 38
4.12 Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries.................................... 38
4.13 Limitation on Sale and Leaseback Transactions.............. 39
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4.14 Limitation on Finance Corp................................. 39
4.15 Line of Business........................................... 39
4.16 Asset Sales................................................ 39
4.17 Change of Control.......................................... 40
ARTICLE 5: SUCCESSORS 41
5.1 Merger, Consolidation or Sale of Assets..................... 41
5.2 Successor Person Substituted................................ 42
ARTICLE 6: DEFAULTS AND REMEDIES 42
6.1 Events of Default........................................... 42
6.2 Acceleration................................................ 43
6.3 Other Remedies.............................................. 44
6.4 Waiver of Past Defaults..................................... 44
6.5 Control by Majority......................................... 44
6.6 Limitation on Suits......................................... 44
6.7 Rights of Holders to Receive Payment........................ 44
6.8 Collection Suit by Trustee.................................. 45
6.9 Trustee May File Proofs of Claim............................ 45
6.10 Priorities................................................. 45
6.11 Undertaking for Costs...................................... 45
ARTICLE 7: TRUSTEE 46
7.1 Duties of Trustee........................................... 46
7.2 Rights of Trustee........................................... 46
7.3 Definitive Rights of Trustee................................ 47
7.4 Trustee's Disclaimer........................................ 47
7.5 Notice of Defaults.......................................... 47
7.6 Reports by Trustee to Holders............................... 47
7.7 Compensation and Indemnity.................................. 48
7.8 Replacement of Trustee...................................... 48
7.9 Successor Trustee by Merger, etc............................ 49
7.10 Eligibility; Disqualification.............................. 49
7.11 Preferential Collection of Claims Against Issuers.......... 49
ARTICLE 8: LEGAL DEFEASANCE AND COVENANT DEFEASANCE 49
8.1 Option to Effect Legal Defeasance or Covenant Defeasance.... 49
8.2 Legal Defeasance and Discharge.............................. 49
8.3 Covenant Defeasance......................................... 50
8.4 Conditions to Legal Defeasance or Covenant Defeasance....... 50
8.5 Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions..................... 51
8.6 Repayment to Issuers........................................ 51
8.7 Reinstatement............................................... 52
8.8 Discharge of Liability on Securities; Defeasance............ 52
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ARTICLE 9: AMENDMENTS................................................. 52
9.1 Without Consent of Holders.................................. 52
9.2 With Consent of Holders..................................... 53
9.3 Compliance with Trust Indenture Act......................... 54
9.4 Relocation and Effect of Consents........................... 54
9.5 Notation on or Exchange of Notes............................ 54
9.6 Trustee to Sign Amendments, etc............................. 54
ARTICLE 10: MISCELLANEOUS 55
10.1 Trust Indenture Act Controls............................... 55
10.2 Notices.................................................... 55
10.3 Communication by Holders with Other Holders................ 56
10.4 Certificate and Opinion as to Conditions Precedent......... 56
10.5 Statements Required in Certificate or Opinion.............. 56
10.6 Form of Documents Delivered to Trustee..................... 56
10.7 Rules by Trustee and Agents................................ 57
10.8 Legal Holidays............................................. 57
10.9 No Recourse Against Others................................. 57
10.10 Duplicate Originals....................................... 57
10.11 Governing Law............................................. 58
10.12 No Adverse Interpretation of Other Agreements............. 58
10.13 Successors................................................ 58
10.14 Benefits of Indenture..................................... 58
10.15 Severability.............................................. 58
10.16 Counterpart Originals..................................... 58
10.17 Table of Contents, Headings, etc.......................... 58
SIGNATURES
EXHIBIT A FORM OF NOTE A-1
EXHIBIT B CERTIFICATE OF TRANSFEROR B-1
EXHIBIT C CERTIFICATE OF ACCREDITED INSTITUTION C-1
EXHIBIT D CERTIFICATE OF REGULATION S D-1
TRANSFEROR
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INDENTURE, dated April 4, 2001, among AmeriGas Partners, L.P., a
Delaware limited partnership (the "Partnership"), AmeriGas Eagle Finance
Corp., a Delaware corporation ("Finance Corp." and, together with the
Partnership, the "Issuers"), and First Union National Bank, as trustee
("Trustee").
The Issuers and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of the Holders of the 10% Series C Senior
Notes due 2006 (the "Series C Notes") of the Issuers, as joint and several
obligors, the 10% Series D Senior Notes due 2006 of the Issuers, as joint and
several obligors (the "Series D Notes") and any Additional Notes issued in
compliance with Section 4.8 and the other terms hereof (the Additional Notes,
Series C Notes and Series D Notes are together referred to as the "Notes").
ARTICLE 1: DEFINITIONS AND INCORPORATION
1.1 Definitions
"10?% Series A Notes Issue Date" means April 19, 1995.
"Acquired Indebtedness" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such other Person
merged with or into or became a Subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Subsidiary of such specified Person
and (ii) Indebtedness encumbering any asset acquired by such specified Person.
"Acquisition Facility" means the loan facility of the Operating
Partnership provided for in the Credit Agreement for the purpose of financing
acquisitions.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by, or under direct or
indirect common control with, such specified Person. For purposes of this
definition, "control" shall mean the power to direct management and policies,
whether through the ownership of voting securities, by contract or otherwise.
Notwithstanding the foregoing, the term "Affiliate" shall not include any
Wholly-Owned Restricted Subsidiary.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Acquisition" means (a) an Investment by the Partnership or
any Restricted Subsidiary of the Partnership in any other Person pursuant to
which such Person shall become a Restricted Subsidiary of the Partnership, or
shall be merged with or into the Partnership or any Restricted Subsidiary of the
Partnership, (b) the acquisition by the Partnership or any Restricted Subsidiary
of the Partnership of the assets of any Person (other than a Restricted
Subsidiary of the Partnership) which constitute all or substantially all of the
assets of such Person or (c) the acquisition by the Partnership or any
Restricted Subsidiary of the Partnership of any division or line of business of
any Person (other than a Restricted Subsidiary of the Partnership).
"Attributable Debt" means, with respect to any Sale and Leaseback
Transaction not involving a Capital Lease, as of any date of determination, the
total obligation (discounted to present value at the rate of interest implicit
in the lease included in such transaction) of the lessee for rental payments
(other than amounts required to be paid on account of property taxes,
maintenance, repairs, insurance, assessments, utilities, operating and labor
costs and other items which do not constitute payments for property rights)
during the remaining portion of the term (including extensions which are at the
sole option of the lessor) of the lease included in such transaction (in the
case of any lease which is terminable by the lessee upon the payment of a
penalty, such rental obligation shall also include the amount of such penalty,
but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated).
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"Available Cash," as to any quarter, means: (a) the sum of (i) all
cash of the Partnership, the Operating Partnership and any Subsidiaries thereof,
treated as a single consolidated entity (together the "Partnership Group"), on
hand at the end of such quarter, and (ii) all additional cash of the Partnership
Group on hand on the date of determination of Available Cash with respect to
such quarter resulting from borrowings subsequent to the end of such quarter,
less (b) the amount of cash reserves that is necessary or appropriate in the
reasonable discretion of the General Partner to (i) provide for the proper
conduct of the business of the Partnership Group (including reserves for future
capital expenditures) subsequent to such quarter, (ii) provide funds for
distributions under Sections 5.3(a), (b) and (c) or 5.4(a) of the Partnership
Agreement in respect of any one or more of the next four quarters or (iii)
comply with applicable law or any debt instrument or other agreement or
obligation to which any member of the Partnership Group is a party or its assets
are subject; provided, however, that Available Cash attributable to any
Restricted Subsidiary of the Partnership shall be excluded to the extent
dividends or distributions of such Available Cash by such Restricted Subsidiary
are not at the date of determination permitted by the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or other
regulation.
"Bank Credit Facilities" means the Acquisition Facility and the
Revolving Loan Facility.
"Board of Directors" means, as applicable, the Board of Directors of
the General Partner, on behalf of the Partnership (or the Partnership if the
Partnership is a corporation), or of Finance Corp., or any authorized committee
of the Board of Directors.
"Business" means the business of wholesale and retail sales,
distribution and storage of propane gas and related petroleum derivative
products and the retail sale and distribution of propane related supplies and
equipment, including home appliances.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, units representing interests, participations, rights in or
other equivalents (however designated) of such Person's capital stock,
including, with respect to partnerships, partnership interests (whether general
or limited) and any other interest or participation that confers upon a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, such partnership, and any rights (other than debt securities
convertible into capital stock), warrants or options exchangeable for or
convertible into such capital stock.
"Capital Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by such Person (as lessee or
guarantor or other surety) which would, in accordance with GAAP, be required to
be classified and accounted for as a capital lease on a balance sheet of such
Person.
"Change of Control" means (i) the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Partnership or the
Operating Partnership to any Person or group (as such term is used in Section
13(d)(3) of the Exchange Act) other than Permitted Holders or any Person of
which Permitted Holders beneficially own in the aggregate 51% or more of the
Voting Stock, (ii) the merger or consolidation of the Partnership or the
Operating Partnership with another partnership or corporation other than a
Permitted Holder or any Person of which Permitted Holders beneficially own in
the aggregate 51% or more of the Voting Stock, (iii) the liquidation or
dissolution of the Partnership or the General Partner or (iv) the occurrence of
any transaction, the result of which is that Permitted Holders beneficially own
in the aggregate, directly or indirectly, less than 51% of the Voting Stock of
the General Partner.
"Common Units" means the common units representing limited partner
interests of the Partnership, having the rights and obligations specified with
respect to Common Units of the Partnership.
"Consolidated Borrowing Base Amount" means an amount equal to the
sum of (i) 70% of the face amount of Eligible Accounts Receivable of the
Partnership and its Restricted Subsidiaries and (ii) 70% of the book value
(calculated on a first in, first out basis) of the consolidated Inventory of the
Partnership and its Restricted Subsidiaries, in each case as determined in
accordance with GAAP. To the extent that information is not available as to
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the amount of Eligible Accounts Receivable or Inventory as of a specific date,
the Partnership may utilize the most recent available information for purposes
of calculating the Consolidated Borrowing Base Amount.
"Consolidated Cash Flow Available for Fixed Charges" means, with
respect to the Partnership and its Restricted Subsidiaries for any period, the
sum of, without duplication, the amounts for such period, taken as a single
accounting period, of (a) Consolidated Net Income, (b) Consolidated Non-cash
Charges, (c) Consolidated Interest Expense and (d) Consolidated Income Tax
Expense.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to
the Partnership and its Restricted Subsidiaries, the ratio of the aggregate
amount of Consolidated Cash Flow Available for Fixed Charges of such Person for
the four full fiscal quarters immediately preceding the date of the transaction
(the "Transaction Date") giving rise to the need to calculate the Consolidated
Fixed Charge Coverage Ratio (such four full fiscal quarter period being referred
to herein as the "Four Quarter Period") to the aggregate amount of Consolidated
Fixed Charges of such Person for the Four Quarter Period. In addition to and
without limitation of the foregoing, for purposes of this definition,
"Consolidated Cash Flow Available for Fixed Charges" and "Consolidated Fixed
Charges" shall be calculated after giving effect on a pro forma basis for the
period of such calculation to, without duplication, (a) the incurrence or
repayment of any Indebtedness (other than revolving credit borrowings) of the
Partnership or any of its Restricted Subsidiaries (and, in the case of any
incurrence, the application of the net proceeds thereof) during the period
commencing on the first day of the Four Quarter Period to and including the
Transaction Date (the "Reference Period"), including, without limitation, the
incurrence of the Indebtedness giving rise to the need to make such calculation
(and the application of the net proceeds thereof), as if such incurrence (and
application) occurred on the first day of the Reference Period, and (b) any
Asset Sales or Asset Acquisitions (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as a result of the
Partnership or one of its Restricted Subsidiaries (including any Person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring,
assuming or otherwise being liable for Acquired Indebtedness) occurring during
the Reference Period, as if such Asset Sale or Asset Acquisition occurred on the
first day of the Reference Period; provided, however, that (i) Consolidated
Fixed Charges shall be reduced by amounts attributable to businesses or assets
that are so disposed of or discontinued only to the extent that the obligations
giving rise to such Consolidated Fixed Charges would no longer be obligations
contributing to the Consolidated Fixed Charges subsequent to the date of
determination of the Consolidated Fixed Charge Coverage Ratio and (ii)
Consolidated Cash Flow Available for Fixed Charges generated by an acquired
business or asset shall be determined by the actual gross profit (revenues minus
cost of goods sold) of such acquired business or asset during the immediately
preceding four full fiscal quarters in the Reference Period minus the pro forma
expenses that would have been incurred by the Partnership and its Restricted
Subsidiaries in the operation of such acquired business or asset during such
period, computed on the basis of personnel expenses for employees retained or to
be retained by the Partnership and its Restricted Subsidiaries in the operation
of the acquired business or asset and non-personnel costs and expenses incurred
by the Partnership and its Restricted Subsidiaries in the operation of the
Partnership's business at similarly situated facilities. Furthermore, in
calculating "Consolidated Fixed Charges" for purposes of determining the
"Consolidated Fixed Charge Coverage Ratio," (i) interest on outstanding
Indebtedness (other than Indebtedness referred to in clause (ii) below)
determined on a fluctuating basis as of the last day of the Four Quarter Period
and which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on such date; (ii) only actual interest payments
associated with Indebtedness incurred in accordance with clauses (e) and (g) of
the definition of Permitted Indebtedness, and all Permitted Refinancing
Indebtedness thereof, during the Four Quarter Period shall be included in such
calculation; and (iii) if interest on any Indebtedness actually incurred on such
date may optionally be determined at an interest rate based upon a factor of a
prime or similar rate, a eurocurrency interbank offered rate, or other rates,
then the interest rate in effect on the last day of the Four Quarter Period will
be deemed to have been in effect during such period.
"Consolidated Fixed Charges" means, with respect to the Partnership
and its Restricted Subsidiaries for any period, the sum of, without duplication,
(a) the amounts for such period of Consolidated Interest Expense and (b) the
product of (i) the aggregate amount of dividends and other distributions paid or
accrued during such period in respect of Preferred Stock and Redeemable Capital
Stock of the Partnership and its Restricted Subsidiaries on a consolidated basis
and (ii) a fraction, the numerator which is one and the denominator of which is
one minus the then applicable current combined federal, state and local
statutory tax rate, expressed as a percentage.
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"Consolidated Income Tax Expense" means, with respect to the
Partnership and its Restricted Subsidiaries for any period, the provision for
federal, state, local and foreign income taxes of the Partnership and its
Restricted Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Interest Expense" means, with respect to the
Partnership and its Restricted Subsidiaries for any period, without duplication,
the sum of (i) the interest expense of the Partnership and its Restricted
Subsidiaries for such period as determined on a consolidated basis in accordance
with GAAP, including, without limitation, (a) any amortization of debt discount,
(b) the net cost under Interest Rate Agreements, (c) the interest portion of any
deferred payment obligation, (d) all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance financing
and (e) all accrued interest and (ii) the interest component of Capital Leases
paid, accrued or scheduled to be paid or accrued by the Partnership and its
Restricted Subsidiaries during such period as determined on a consolidated basis
in accordance with GAAP.
"Consolidated Net Income" means the net income of the Partnership
and its Restricted Subsidiaries, as determined on a consolidated basis in
accordance with GAAP and as adjusted to exclude (i) net after-tax extraordinary
gains or losses, (ii) net after-tax gains or losses attributable to Asset Sales,
(iii) the net income or loss of any Person which is not a Restricted Subsidiary
and which is accounted for by the equity method of accounting, provided that
Consolidated Net Income shall include the amount of dividends or distributions
actually paid to the Partnership or any Restricted Subsidiary, (iv) the net
income or loss prior to the date of acquisition of any Person combined with the
Partnership or any Restricted Subsidiary in a pooling of interest, (v) the net
income of any Restricted Subsidiary to the extent that dividends or
distributions of such net income are not at the date of determination permitted
by the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or other regulation and (vi) the cumulative effect of any
changes in accounting principles.
"Consolidated Net Worth" means, with respect to the Partnership and
its Restricted Subsidiaries at any date, the consolidated stockholders' equity
or partners' capital of such Person less the amount of such stockholders' equity
or partners' capital attributable to Redeemable Capital Stock of the Partnership
and its Restricted Subsidiaries, as determined in accordance with GAAP.
"Consolidated Non-cash Charges" means, with respect to the
Partnership and its Restricted Subsidiaries for any period, the aggregate
depreciation, amortization and any other non-cash charges resulting from
writedowns in non-current assets, in each case, reducing Consolidated Net Income
of the Partnership and its Restricted Subsidiaries for such period, determined
on a consolidated basis in accordance with GAAP.
"Conveyance and Contribution Agreement" means the Conveyance and
Contribution Agreement, dated as of the 10?% Series A Notes Issue Date, among
Petrolane, the Partnership and the Operating Partnership, together with the
additional conveyance documents and instruments contemplated or referenced
thereunder.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 10.2 hereof or such other address as to which
the Trustee may give notice to the Issuers.
"Credit Agreement" means the Credit Agreement, dated as of April 12,
1995, among the Operating Partnership, the General Partner, Petrolane and Bank
of America National Trust and Savings Association, in its individual capacity
and as agent, and the other banks which are or become parties from time to time
thereto, evidencing the Bank Credit Facilities, as it has been and may be
amended, supplemented or otherwise modified from time to time, including all
exhibits and schedules thereto, and any successor or replacement facility
entered into in compliance with this Indenture.
"Default" means any event that is, or after notice or passage of
time, or both, would be, an Event of Default.
"Definitive Notes" means Notes that are in the form of Exhibit A
attached hereto (but without including the text referred to in footnote 1
thereto).
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"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.3 hereof as
the Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"Designation Amount" means, with respect to the designation of a
Restricted Subsidiary or a newly acquired or formed Subsidiary as an
Unrestricted Subsidiary, an amount equal to (x) the net book value of all assets
of such Subsidiary at the time of such designation in the case of a Restricted
Subsidiary and (y) the cost of acquisition or formation in the case of a newly
acquired or formed Subsidiary.
"Disinterested Director" means, with respect to any transaction or
series of transactions with Affiliates, a member of the Board of Directors of
the General Partner who has no financial interest, and whose employer has no
financial interest, in such transaction or series of transactions.
"Eligible Accounts Receivable" means consolidated accounts
receivable of the Partnership and its Restricted Subsidiaries that are no more
than 60 days past due under their scheduled payment terms.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"Event of Default" has the meaning set forth in Section 6.1 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the offer by the Issuers to the Holders of
all outstanding Transfer Restricted Securities to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Series D Notes, in an
aggregate principal amount equal to the aggregate principal amount of the
Transfer Restricted Securities tendered in such exchange offer by such Holders.
"Exchange Offer Registration Statement" means the registration
statement under the Securities Act relating to the Exchange Offer, including the
related prospectus.
"Finance Corp." means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"First Mortgage Notes" means:
(a) the first mortgage notes, series A through C, issued
pursuant to the note agreements dated as of the 10?% Series A Notes Issue
Date;
(b) the first mortgage notes, series D, issued pursuant to the note
agreement dated as of March 15, 1999; and
(c) the first mortgage notes, series E, issued pursuant to the note
agreement dated as of March 15, 2000;
in each case as these note agreements may be amended, supplemented or otherwise
modified from time to time, including all exhibits and schedules thereto, and as
the Indebtedness evidenced thereby may be extended, renewed, refunded or
refinanced from time to time.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other
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entity as may be approved by a significant segment of the accounting profession
of the United States of America, which are applicable from time to time.
"General Partner" means AmeriGas Propane, Inc., a Pennsylvania
corporation, and any successors in the capacity of general partner of the
Partnership or the Operating Partnership (including, if applicable, more than
one successor in any such capacity at the same time).
"Global Note" means a Note that is issued in global form in the name
of Cede & Co. or such other name as may be requested by an authorized
representative of the Depositary, and that contains the paragraph referred to in
footnote 1 and the additional schedule referred to in the form of Note attached
hereto as Exhibit A.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States of America is
pledged.
"Guaranty" as applied to any Person, any direct or indirect
liability, contingent or otherwise, of such Person with respect to any
Indebtedness, lease, cash dividend or other obligation of another, including,
without limitation, (a) any such obligation directly or indirectly guaranteed or
endorsed (otherwise than for collection or deposit in the ordinary course of
business) by such Person, or in respect of which such Person is otherwise
directly or indirectly liable, (b) any other obligation under any contract
which, in economic effect, is substantially equivalent to a guaranty, including,
without limitation, any such obligation of a partnership in which such Person is
a general partner or of a joint venture in which such Person is a joint
venturer, or (c) any obligation in effect guaranteed by such Person through any
agreement (contingent or otherwise) to purchase, repurchase or otherwise acquire
such obligation or any security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise), or to maintain the solvency or
any balance sheet or other financial condition of the obligor of such
obligation, or to make payment for any products, materials or supplies or for
any transportation or services regardless of the non-delivery or nonfurnishing
thereof, in any such case if the purpose or intent of such agreement is to
provide assurance that such obligation will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected against loss in respect thereof.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means as applied to any Person (without duplication):
(a) any indebtedness for borrowed money and all obligations
evidenced by any bond, note, debenture or other similar instrument or letter of
credit (or reimbursement agreements in respect thereof) which such Person has
directly or indirectly created, incurred or assumed;
(b) any indebtedness for borrowed money and all obligations
evidenced by any bond, note, debenture or other similar instrument secured by
any Lien in respect of property owned by such Person, whether or not such Person
has assumed or become liable for the payment of such indebtedness; provided that
the amount of such Indebtedness, if such Person has not assumed the same or
become liable therefor, shall in no event be deemed to be greater than the fair
market value from time to time (as determined in good faith by such Person) of
the property subject to such Lien;
(c) any indebtedness, whether or not for borrowed money (excluding
trade payables and accrued expenses arising in the ordinary course of business),
with respect to which such Person has become directly or indirectly liable and
which represents the deferred purchase price (or a portion thereof) or has been
incurred to finance the purchase price (or a portion thereof) of any property or
service or business acquired by such Person, whether by purchase, consolidation,
merger or otherwise;
(d) the principal component of any obligations under Capital Leases
to the extent such obligations would, in accordance with GAAP, appear on a
balance sheet of such Person;
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(e) all Attributable Debt of such Person in respect of Sale and
Leaseback Transactions not involving a Capital Lease;
(f) any indebtedness of the character referred to in clause (a),
(b), (c), (d) or (e) of this definition deemed to be extinguished under GAAP but
for which such Person remains legally liable;
(g) any indebtedness of any other Person of the character referred
to in clause (a), (b), (c), (d), (e) or (f) of this definition with respect to
which the Person whose Indebtedness is being determined has become liable by way
of a Guaranty;
(h) all Redeemable Capital Stock of such Person valued at the
greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued dividends;
(i) any Preferred Stock of any Subsidiary of such Person valued at
the liquidation preference thereof or any mandatory redemption payment
obligations in respect thereof plus, in either case, accrued dividends thereon;
and
(j) any amendment, supplement, modification, deferral, renewal,
extension or refunding of any liability of the types referred to in clauses (a)
through (i) above.
For purposes hereof, the "maximum fixed repurchase price" of any
Redeemable Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Redeemable Capital Stock as if
such Redeemable Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the fair market value of such Redeemable Capital
Stock, such fair market value shall be determined in good faith by the board of
directors of the issuer of such Redeemable Capital Stock.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Initial Purchasers" means Credit Suisse First Boston Corporation
and Banc of America Securities LLC, as initial purchasers in the Offering.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement designed to protect the Partnership or any Restricted
Subsidiary from fluctuations in interest rates.
"Inventory" means goods held by a Person for sale or lease or to be
furnished under contracts of service or if such Person has so furnished them, or
if they are raw materials, work in process materials used or consumed in the
Business or finished inventory of every type or description (including, without
limitation, all liquified petroleum gas), in each case as would be shown as
inventory on a balance sheet of such Person prepared in accordance with GAAP
consistently applied; and all documents of title covering such inventory, and
shall specifically include all "inventory" as such term is defined in the UCC,
now or hereafter owned by such Person.
"Investment" means as applied to any Person, any direct or indirect
purchase or other acquisition by such Person of stock or other securities of any
other Person, or any direct or indirect loan, advance or capital contribution by
such Person to any other Person, and any other item which would be classified as
an "investment" on a balance sheet of such Person prepared in accordance with
GAAP, including, without limitation, any direct or indirect contribution by such
Person of property or assets to a joint venture, partnership or other business
entity in which such Person retains an interest (it being understood that a
direct or indirect purchase or other acquisition by such Person of assets of any
other Person (other than stock or other securities) shall not constitute an
"Investment" for purposes of this Indenture). The amount involved in Investments
made during any period shall be the aggregate cost to the Partnership and its
Restricted Subsidiaries of all such Investments made during such period,
determined in accordance with GAAP, but without regard to unrealized increases
or decreases in value, or write-ups, write-downs or write-offs, of such
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Investments and without regard to the existence of any undistributed earnings or
accrued interest with respect thereto accrued after the respective dates on
which such Investments were made, less any net return of capital realized during
such period upon the sale, repayment or other liquidation of such Investments
(determined in accordance with GAAP, but without regard to any amounts received
during such period as earnings (in the form of dividends not constituting a
return of capital, interest or otherwise) on such Investments or as loans from
any Person in whom such Investments have been made).
"Issue Date" means the date on which the Series C Notes are
originally issued.
"Issuers" means the parties named as such in this Indenture until a
successor replaces either such Issuer pursuant to this Indenture and thereafter
means the remaining Issuer and the successor.
"Lien" means any mortgage, charge, pledge, lien (statutory or
other), security interest, hypothecation, assignment for security, claim, or
preference or priority or other encumbrance upon or with respect to any property
of any kind. A Person shall be deemed to own subject to a Lien any property
which such Person has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement.
"Liquidated Damages" means all liquidated damages then owing
pursuant to the Registration Rights Agreement.
"Maturity Date" means, with respect to any Note, the date on which
any principal of such Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity with respect to such principal or by
declaration of acceleration, call for redemption or purchase or otherwise.
"Moody's" means Moody's Investors Service, Inc. and its
successors.
"Net Amount of Unrestricted Investment" means, without duplication,
the sum of (x) the aggregate amount of all Investments made after the 10?%
Series A Notes Issue Date pursuant to subdivision (h) of the definition of
Permitted Investments (computed as provided in the last sentence of the
definition of Investment) and (y) the aggregate of all Designation Amounts in
connection with the designation of Unrestricted Subsidiaries less all
Designation Amounts in respect of Unrestricted Subsidiaries which have been
designated as Restricted Subsidiaries and otherwise reduced in a manner
consistent with the provisions of the last sentence of the definition of
Investment.
"Net Proceeds" means, with respect to any Asset Sale or sale of
Capital Stock, the proceeds thereof in the form of cash or cash equivalents
including payments in respect of deferred payment obligations when received in
the form of cash or cash equivalents (except to the extent that such deferred
payment obligations are financed or sold with recourse to the Partnership or any
Restricted Subsidiary of the Partnership) net of (i) brokerage commissions and
other fees and expenses (including, without limitation, fees and expenses of
legal counsel and accountants and fees, expenses and discounts or commissions of
underwriters, placement agents and investment bankers) related to such Asset
Sale, (ii) provisions for all taxes payable as a result of such Asset Sale,
(iii) amounts required to be paid to any Person (other than the Partnership or
any Restricted Subsidiary of the Partnership) owning a beneficial interest in
the assets subject to such Asset Sale, (iv) appropriate amounts to be provided
by the Partnership or any Restricted Subsidiary of the Partnership, as the case
may be, as a reserve required in accordance with GAAP against any liabilities
associated with such Asset Sale and retained by the Partnership or any
Restricted Subsidiary of the Partnership, as the case may be, after such Asset
Sale, including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale and (v) amounts
required to be applied to the repayment of Indebtedness secured by a Lien on the
asset or assets sold in such Asset Sale.
"Note Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Notes" means the Issuers' Series C Notes, Series D Notes and
Additional Notes, if any.
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"Offering" means the offering of the Series C Notes pursuant to the
Offering Memorandum.
"Offering Memorandum" means the offering circular of the Issuers,
dated March 28, 2001, relating to the Offering.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person; provided,
however, that any reference to an Officer with respect to the Partnership shall
mean the respective Officer of the General Partner.
"Officers' Certificate" means a certificate signed on behalf of (i)
the General Partner (acting on behalf of the Partnership) by two Officers of the
General Partner, one of whom must be the principal executive officer, the
principal financial officer, the treasurer or the principal accounting officer
of the General Partner, or (ii) Finance Corp. by two Officers of Finance Corp.,
one of whom must be the principal executive officer, the principal financial
officer, the treasurer or the principal accounting officer of Finance Corp., in
either case that meets the requirements of Section 10.5 hereof.
"Operating Partnership" means AmeriGas Propane, L.P., a Delaware
limited partnership, and its successors.
"Operating Partnership Agreement" means the Amended and Restated
Agreement of Limited Partnership of the Operating Partnership, as in effect on
the Issue Date, and as the same may from time to time be amended, supplemented
or otherwise modified in accordance with the terms thereof.
"Operative Agreements" means the Partnership Agreement, the
Operating Partnership Agreement and the other agreements entered into between
the Partnership or the Operating Partnership and any of their respective
Affiliates (including the General Partner) on the 10?% Series A Notes Issue
Date.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
10.5 hereof. The counsel may be an employee of or counsel to the Partnership,
the General Partner, Finance Corp., UGI, any of their respective Subsidiaries or
the Trustee.
"Partnership" means the party named as such in this Indenture until
a successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership of the Partnership, as in effect on the Issue Date, and as
the same may from time to time be amended, supplemented or otherwise modified in
accordance with the terms thereof.
"Permitted Holders" mean UGI and its Subsidiaries.
"Permitted Indebtedness" means any of the following:
(a) Indebtedness of the Issuers evidenced by the Notes (other
than Additional Notes);
(b) Indebtedness outstanding on the 10?% Series A Notes Issue
Date;
(c) Indebtedness of the Operating Partnership evidenced by the First
Mortgage Notes; provided that the aggregate principal amount (exclusive of any
unamortized premium) of such Indebtedness outstanding at any time may not exceed
$518 million;
(d) Indebtedness of the Partnership or a Restricted Subsidiary
incurred (A) for the making of expenditures for the improvement or repair of (to
the extent such improvements or repairs may be capitalized on the
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books of such Person in accordance with GAAP) or additions to (including
additions by way of acquisitions of businesses and related assets) the property
and assets of the Partnership and its Restricted Subsidiaries (including,
without limitation, Indebtedness incurred under the Acquisition Facility or (B)
by assumption in connection with additions (including additions by way of
acquisition or capital contributions of businesses and related assets) to the
property and assets of the Partnership and its Restricted Subsidiaries; provided
that the aggregate principal amount of such Indebtedness outstanding at any time
may not exceed $75 million;
(e) Indebtedness of the Partnership or a Restricted Subsidiary
incurred for any purpose permitted under the Revolving Loan Facility; provided
that the aggregate principal amount of such Indebtedness outstanding at any time
may not exceed an amount equal to the greater of (i) $70 million and (ii) the
Consolidated Borrowing Base Amount; and provided, further, that the outstanding
balance of such Indebtedness shall not exceed 50% of such greater amount for 30
consecutive days during each fiscal year;
(f) Indebtedness of the Partnership owing to the General Partner or
an Affiliate of the General Partner that is unsecured and that is Subordinated
Indebtedness; provided that the aggregate principal amount of such Indebtedness
outstanding at any time may not exceed $50 million;
(g) Indebtedness of the Partnership or a Restricted Subsidiary for
the purpose of the payment of certain liabilities of Petrolane; provided that
the aggregate amount of such Indebtedness outstanding at any time may not exceed
$30 million;
(h) Indebtedness owed by the Partnership or any Restricted
Subsidiary to any Wholly-Owned Restricted Subsidiary;
(i) Indebtedness under Interest Rate Agreements;
(j) Permitted Refinancing Indebtedness;
(j) the incurrence by the Partnership or a Restricted Subsidiary of
Indebtedness owing directly to its insurance carriers (without duplication) in
connection with the Partnership's, its Subsidiaries' or its Affiliates'
self-insurance programs or other similar forms of retained insurable risks for
their respective businesses, consisting of reinsurance agreements and
indemnification agreements (and guarantees of the foregoing) secured by letters
of credit; provided that any Consolidated Fixed Charges associated with the
Indebtedness evidenced by such reinsurance agreements, indemnification
agreements, guarantees and letters of credit shall be included (without
duplication) in any determination of the Consolidated Fixed Charge Coverage
Ratio test set forth in Section 4.8 hereof;
(k) Indebtedness of the Partnership and its Restricted Subsidiaries
in respect of Capital Leases; provided that the aggregate amount of such
Indebtedness outstanding at any time may not exceed $10 million;
(l) Indebtedness of the Partnership and its Restricted Subsidiaries
represented by letters of credit supporting (i) obligations under workmen's
compensation laws, (ii) obligations to suppliers of propane; provided that the
aggregate amount of such Indebtedness outstanding at any time may not exceed $15
million and (iii) the repayment of Permitted Indebtedness; or
(m) surety bonds and appeal bonds required in the ordinary course of
business or in connection with the enforcement of rights or claims of the
Partnership or any of its Subsidiaries or in connection with judgments that do
not result in a Default or Event of Default.
"Permitted Investments" means any of the following:
(a) Investments made or owned by the Partnership or any Restricted
Subsidiary in (i) marketable obligations issued or unconditionally guaranteed by
the United States of America, or issued by any
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agency thereof and backed by the full faith and credit of the United States, in
each case maturing one year or less from the date of acquisition thereof, (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and having as at such date the highest rating obtainable from either S&P
or Moody's, (iii) commercial paper maturing no more than 270 days from the date
of creation thereof and having as at the date of acquisition thereof one of the
two highest ratings obtainable from either S&P or Moody's, (iv) certificates of
deposit maturing one year or less from the date of acquisition thereof issued by
commercial banks incorporated under the laws of the United States of America or
any state thereof or the District of Columbia or Canada, (A) the commercial
paper or other short term unsecured debt obligations of which are as at such
date rated either A-2 or better (or comparably if the rating system is changed)
by S&P or Prime-2 or better (or comparably if the rating system is changed) by
Moody's or (B) the long-term debt obligations of which are as at such date rated
either A or better (or comparably if the rating system is changed) by either S&P
or Moody's ("Permitted Banks"), (v) Eurodollar time deposits having a maturity
of less than 270 days from the date of acquisition thereof purchased directly
from any Permitted Bank, (vi) bankers' acceptances eligible for rediscount under
requirements of The Board of Governors of the Federal Reserve System and
accepted by Permitted Banks, and (vii) obligations of the type described in
clause (i), (ii), (iii), (iv) or (v) above purchased from a securities dealer
designated as a "primary dealer" by the Federal Reserve Bank of New York or from
a Permitted Bank as counterparty to a written repurchase agreement obligating
such counterparty to repurchase such obligations not later than 14 days after
the purchase thereof and which provides that the obligations which are the
subject thereof are held for the benefit of the Partnership or a Restricted
Subsidiary by a custodian which is a Permitted Bank and which is not a
counterparty to the repurchase agreement in question;
(b) the acquisition by the Partnership or any Restricted Subsidiary
of Capital Stock or other ownership interests, whether in a single transaction
or in a series of related transactions, of a Person located in the United States
or Canada and engaged in substantially the same business as the Partnership such
that, upon the completion of such transaction or series of transactions, such
Person becomes a Restricted Subsidiary;
(c) subject to the provisions of subdivision (h) below, the making
or ownership by the Partnership or any Restricted Subsidiary of Investments (in
addition to Investments permitted by subdivisions (a), (b), (d), (e), (f) and
(g)) in any Person incorporated or otherwise formed pursuant to the laws of the
United States or Canada or any state thereof which is engaged in the United
States or Canada in substantially the same business as the Partnership; provided
that the aggregate amount of all such Investments made by the Partnership and
its Restricted Subsidiaries following the 10?% Series A Notes Issue Date and
outstanding pursuant to this subdivision (c) and subdivision (h) below shall not
at any date of determination exceed 10% of Total Assets (the "Investment
Limit"); provided that, in addition to Investments that would be permitted under
the Investment Limit, during any fiscal year the Partnership and its Restricted
Subsidiaries may invest up to $25,000,000 (the "Annual Limit") pursuant to the
provisions of this subdivision (c), but the unused amount of the Annual Limit
shall not be carried over to any future years;
(d) the making or ownership by the Partnership or any Restricted
Subsidiary of Investments (x) arising out of loans and advances to employees
incurred in the ordinary course of business, (y) arising out of extensions of
trade credit or advances to third parties in the ordinary course of business and
(z) acquired by reason of the exercise of customary creditors' rights upon
default or pursuant to the bankruptcy, insolvency or reorganization of a debtor;
(e) the creation or incurrence of liability by the Partnership or
any Restricted Subsidiary with respect to any Guaranty constituting an
obligation, warranty or indemnity, not guaranteeing Indebtedness of any Person,
which is undertaken or made in the ordinary course of business;
(f) the creation or incurrence of liability by the Partnership
or any Restricted Subsidiary with respect to any Interest Rate Agreements;
(g) the making by any Restricted Subsidiary of Investments in
the Partnership or another Restricted Subsidiary;
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(h) the making or ownership by the Partnership or any Restricted
Subsidiary of Investments in Unrestricted Subsidiaries; provided that the Net
Amount of Unrestricted Investment shall not at any time exceed $5,000,000 (and
subject to the limitations specified in subdivision (c) above); and
(i) the making or ownership by the Partnership or any
Restricted Subsidiary of Investments in the Operating Partnership.
"Permitted Liens" means any of the following:
(a) Liens for taxes, assessments or other governmental charges the
payment of which is not yet due and is being contested in good faith by
appropriate proceedings promptly initiated and diligently conducted and as to
which reserves or other appropriate provision, if any, as shall be required by
GAAP shall have been made therefor and be adequate in the good faith judgment of
the obligor;
(b) Liens of lessors, landlords and carriers, vendors, warehousemen,
mechanics, materialmen, repairmen and other like Liens incurred in the ordinary
course of business for sums not yet due or the payment of which is being
contested in good faith by appropriate proceedings promptly initiated and
diligently conducted and as to which reserves or other appropriate provision, if
any, as shall be required by GAAP shall have been made therefor and be adequate
in the good faith judgment of the obligor, in each case (i) not incurred or made
in connection with the borrowing of money, the obtaining of advances or credit
or the payment of the deferred purchase price of property or (ii) incurred in
the ordinary course of business securing the unpaid purchase price of property
or services constituting current accounts payable;
(c) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business (i) in connection with workers'
compensation, unemployment insurance and other types of social security or (ii)
to secure (or to obtain letters of credit that secure) the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
performance bonds, purchase, construction or sales contracts and other similar
obligations, in each case not incurred or made in connection with the borrowing
of money;
(d) other deposits made to secure liability to insurance
carriers under insurance or self-insurance arrangements;
(e) Liens securing reimbursement obligations under letters of
credit; provided in each case that such Liens cover only the title documents and
related goods (and any proceeds thereof) covered by the related letter of
credit;
(f) any attachment or judgment Lien, unless the judgment it secures
shall not, within 60 days after the entry thereof, have been discharged or
execution thereof stayed pending appeal or review, or shall not have been
discharged within 60 days after expiration of any such stay;
(g) leases or subleases granted to others, easements, rights-of-way,
restrictions and other similar charges or encumbrances, which, in each case
either (i) are granted, entered into or created in the ordinary course of the
business of the Partnership or any Restricted Subsidiary or (ii) do not
materially impair the value or intended use of the property covered thereby;
(h) Liens on property or assets of any Restricted Subsidiary
securing Indebtedness of such Restricted Subsidiary owing to the Partnership or
a Wholly-Owned Restricted Subsidiary;
(i) Liens on assets of the Partnership or any Restricted
Subsidiary existing on the 10?% Series A Notes Issue Date;
(j) Liens securing Indebtedness evidenced by the First Mortgage
Notes (or any extension, renewal, refunding or refinancing of any such
Indebtedness);
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(k) Liens securing Indebtedness incurred under the Acquisition
Facility (or any extension, renewal, refunding or refinancing of any such
Indebtedness);
(l) Liens securing Indebtedness incurred under the Revolving Loan
Facility (or any extension, renewal, refunding or refinancing of any such
Indebtedness);
(m) Liens (other than the Liens referred to in clauses (k) and (l)
above) securing Indebtedness incurred in accordance with (i) clause (d) of the
definition of Permitted Indebtedness, (ii) clauses (e) and(g) of the definition
of Permitted Indebtedness or (iii) Indebtedness otherwise permitted to be
incurred under Section 4.8 hereof to the extent incurred (A) to finance the
making of expenditures for the improvement or repair (to the extent such
improvements and repairs may be capitalized on the books of the Partnership and
the Restricted Subsidiaries in accordance with GAAP) of or additions (including
additions by way of acquisitions of businesses and related assets) to the assets
and property of the Partnership and its Restricted Subsidiaries, or (B) by
assumption in connection with additions (including additions by way of
acquisition or capital contributions of business and related assets) to the
property and assets of the Partnership and its Restricted Subsidiaries; provided
that in the case of Indebtedness incurred in accordance with clauses (i) or
(iii), the principal amount of such Indebtedness does not exceed the lesser of
the cost to the Partnership and the Restricted Subsidiaries of such additional
property or assets and the fair market value of such additional property or
assets at the time of the acquisition thereof (as determined in good faith by
the General Partner);
(n) Liens existing on any property of any Person at the time it
becomes a Subsidiary of the Partnership, or existing at the time of acquisition
upon any property acquired by the Partnership or any such Subsidiary through
purchase, merger or consolidation or otherwise, whether or not assumed by the
Partnership or such Subsidiary, or created to secure Indebtedness incurred to
pay all or any part of the purchase price (a "Purchase Money Lien") of property
(including, without limitation, Capital Stock and other securities) acquired by
the Partnership or a Restricted Subsidiary; provided that (i) any such Lien
shall be confined solely to such item or items of property and, if required by
the terms of the instrument originally creating such Lien, other property which
is an improvement to or is acquired for use specifically in connection with such
acquired property, (ii) in the case of a Purchase Money Lien, the principal
amount of the Indebtedness secured by such Purchase Money Lien shall at no time
exceed an amount equal to the lesser of (A) the cost to the Partnership and the
Restricted Subsidiaries of such property and (B) the fair market value of such
property at the time of the acquisition thereof (as determined in good faith by
the General Partner), (iii) any such Purchase Money Lien shall be created not
later than 30 days after the acquisition of such property and (iv) any such Lien
(other than a Purchase Money Lien) shall not have been created or assumed in
contemplation of such Person's becoming a Subsidiary of the Partnership or such
acquisition of property by the Partnership or any Subsidiary;
(o) easements, exceptions or reservations in any property of the
Partnership or any Restricted Subsidiary granted or reserved for the purpose of
pipelines, roads, the removal of oil, gas, coal or other minerals, and other
like purposes, or for the joint or common use of real property, facilities and
equipment, which are incidental to, and do not materially interfere with, the
ordinary conduct of the business of the Partnership or any Restricted
Subsidiary;
(p) Liens arising from or constituting permitted encumbrances under
the agreements and instruments securing the obligations under the First Mortgage
Notes and the Bank Credit Facilities; and
(q) any Lien renewing or extending any Lien permitted by subdivision
(i), (j), (k), (l), (m) or (n); provided that (i) the principal amount of the
Indebtedness secured by any such Lien shall not exceed the principal amount of
such Indebtedness outstanding immediately prior to the renewal or extension of
such Lien, and (ii) no assets encumbered by any such Lien other than the assets
encumbered immediately prior to such renewal or extension shall be encumbered
thereby.
"Permitted Refinancing Indebtedness" means Indebtedness incurred by
the Partnership or any Restricted Subsidiary to substantially concurrently
(excluding any notice period on redemptions) repay, refund, renew,
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replace, extend or refinance, in whole or in part, any Permitted Indebtedness of
the Partnership or any Restricted Subsidiary or any other Indebtedness incurred
by the Partnership or any Restricted Subsidiary pursuant to Section 4.8 hereof,
to the extent (i) the principal amount of such Permitted Refinancing
Indebtedness does not exceed the principal or accreted amount plus the amount of
accrued and unpaid interest of the Indebtedness so repaid, refunded, renewed,
replaced, extended or refinanced (except that, in the case of the First Mortgage
Notes, such Permitted Refinancing Indebtedness may include the amount of any
unamortized premium thereon), (ii) with respect to the repayment, refunding,
renewal, replacement, extension or refinancing of Indebtedness of the Issuers,
the Permitted Refinancing Indebtedness ranks no more favorably in right of
payment with respect to the Notes than the Indebtedness so repaid, refunded,
renewed, replaced, extended or refinanced, and (iii) with respect to the
repayment, refunding or refinancing of Indebtedness of the Issuers, the
Permitted Refinancing Indebtedness has a Weighted Average Life to Stated
Maturity and Stated Maturity equal to, or greater than, and has no fixed
mandatory redemption or sinking fund requirement in an amount greater than or at
a time prior to the amounts set forth in, the Indebtedness so repaid, refunded,
renewed, replaced, extended or refinanced; provided, however, that Permitted
Refinancing Indebtedness shall not include Indebtedness incurred by a Restricted
Subsidiary to repay, refund, renew, replace, extend or refinance Indebtedness of
the Partnership.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
charitable foundation, unincorporated organization, government or any agency or
political subdivision thereof or any other entity.
"Petrolane" means Petrolane Incorporated, a Pennsylvania
corporation, and its successors.
"Preferred Stock," as applied to the Capital Stock of any Person,
means Capital Stock (other than the Common Units) of any class or classes
(however designated), which is preferred as to the payment of distributions,
dividends, or upon any voluntary or involuntary liquidation or dissolution of
such Person, over shares or units of Capital Stock of any other class of such
Person.
"Redeemable Capital Stock" means any shares of any class or series
of Capital Stock, that, either by the terms thereof, by the terms of any
security into which it is convertible or exchangeable or by contract or
otherwise, is or upon the happening of an event or passage of time would be,
required to be redeemed prior to the Stated Maturity with respect to the
principal of any Note or is redeemable at the option of the holder thereof at
any time prior to the Stated Maturity of the Notes, or is convertible into or
exchangeable for debt securities at any time prior to the Stated Maturity of the
Notes.
"Registration Rights Agreement" means (1) the Registration Rights
Agreement, dated as of the Issue Date, among the Issuers and the Initial
Purchasers and (2) any future registration rights agreement executed by the
Issuers in connection with the issuance of Additional Notes under this
Indenture.
"Responsible Officer" when used with respect to the Trustee, means
any officer within the corporate trust department of the Trustee (or any
successor of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Subsidiary" means a Subsidiary of the Partnership,
which, as of the date of determination, is not an Unrestricted Subsidiary of the
Partnership.
"Revolving Loan Facility" means the revolving loan facility of the
Operating Partnership provided for in the Credit Agreement.
"Sale and Leaseback Transaction" of any Person (a "Transferor")
means any arrangement (other than between the Partnership and a Wholly-Owned
Restricted Subsidiary or between Wholly-Owned Restricted Subsidiaries) whereby
(a) property (the "Subject Property") has been or is to be disposed of by such
Transferor to any other Person with the intention on the part of such Transferor
of taking back a lease of such Subject Property pursuant
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to which the rental payments are calculated to amortize the purchase price of
such Subject Property substantially over the useful life of such Subject
Property, and (b) such Subject Property is in fact so leased by such Transferor
or an Affiliate of such Transferor.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Series C Notes" means the Issuers' 10% Series C Senior Notes due
2006 to be issued pursuant to this Indenture.
"Series D Notes" means the Issuers' 10% Series D Senior Notes due
2006 to be issued pursuant to this Indenture in the Exchange Offer.
"Significant Subsidiary" shall have the same meaning as in Rule
1.02(v) of Regulation S-X under the Securities Act.
"S&P" means Standard & Poor's Ratings Group, and its successors.
"Stated Maturity" means, (i) when used with respect to any Note or
any installment of interest thereon, the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable, and (ii) when used with respect to any other Indebtedness,
means the date or dates specified in the instrument governing such Indebtedness
as the fixed date or dates on which each then remaining installment, sinking
fund, serial maturity or other required payments of principal, including payment
at final maturity, in respect of such Indebtedness, or any installment of
interest thereon, is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Partnership
which is expressly subordinated in right of payment to the Notes.
"Subsidiary" means, with respect to any Person, (i) a corporation a
majority of whose Voting Stock (or, in the case of a partnership, a majority of
the partners' Capital Stock, considering all partners' Capital Stock as a single
class) is at the time, directly or indirectly, owned by such Person, by one or
more Subsidiaries of such Person or by such Person and one or more Subsidiaries
thereof and (ii) any other Person, including, without limitation, a joint
venture, in which such Person, one or more Subsidiaries thereof or such Person
and one or more Subsidiaries thereof, directly or indirectly, at the date of
determination thereof, has at least majority ownership interest entitled to vote
in the election of directors, managers, general partners or trustees thereof (or
other Person performing similar functions) or, if such Persons are not elected,
to vote on any matter that is submitted to the vote of all Persons holding
ownership interests in such entity. For purposes of this definition, any
directors' qualifying shares or investments by foreign nationals mandated by
applicable law shall be disregarded in determining the ownership of a
Subsidiary.
"TIA" means the Trust Indenture Act of 1939, as in effect on the
date this Indenture is qualified under the TIA, except as provided in Section
9.3 hereof.
"Total Assets" means as of any date of determination, the
consolidated total assets of the Partnership and the Restricted Subsidiaries as
would be shown on a consolidated balance sheet of the Partnership and the
Restricted Subsidiaries prepared in accordance with GAAP as of that date.
"Transfer Restricted Securities" has the meaning ascribed to such
term in the Registration Rights Agreement.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
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"UCC" means the Uniform Commercial Code as it may be from time to
time in effect in the State of New York.
"UGI" means UGI Corporation, a Pennsylvania corporation, and its
successors.
"Unrestricted Subsidiary" means any Subsidiary of the Partnership or
a Restricted Subsidiary that is designated as such by the General Partner;
provided that no portion of the Indebtedness or any other obligation (contingent
or otherwise) of such Subsidiary (a) is guaranteed by the Partnership or any
Restricted Subsidiary, (b) is recourse to or obligates the Partnership or any
Restricted Subsidiary in any way or (c) subjects any property or assets of the
Partnership or any Restricted Subsidiary, directly or indirectly, contingently
or otherwise, to the satisfaction thereof. Notwithstanding the foregoing, the
Partnership or a Restricted Subsidiary may Guaranty or agree to provide funds
for the payment or maintenance of, or otherwise become liable with respect to
Indebtedness of an Unrestricted Subsidiary; but only to the extent that the
Partnership or a Restricted Subsidiary would be permitted to (a) make an
Investment in such Unrestricted Subsidiary pursuant to subdivision (h) of the
definition of Permitted Investments and (b) incur the Indebtedness represented
by such Guaranty or agreement pursuant to the first paragraph of Section 4.8
hereof. The Board of Directors may designate an Unrestricted Subsidiary to be a
Restricted Subsidiary, provided that immediately after giving effect to such
designation, (i) there exists no Event of Default or event which after notice or
lapse of time or both would become an Event of Default and (ii) if such
Unrestricted Subsidiary has, as of the date of such designation, outstanding
Indebtedness (other than Permitted Indebtedness) the Partnership could incur at
least $1.00 of Indebtedness (other than Permitted Indebtedness). Notwithstanding
the foregoing, (i) no Subsidiary may be designated an Unrestricted Subsidiary if
such Subsidiary, directly or indirectly, holds capital stock of a Restricted
Subsidiary and (ii) neither the Operating Partnership nor Finance Corp. may be
designated an Unrestricted Subsidiary.
"Voting Stock" means any class or classes of Capital Stock pursuant
to which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers,
general partners or trustees of any Person (irrespective of whether or not, at
the time, Capital Stock of any other class or classes shall have, or might have,
voting power by reason of the happening of any contingency) or, with respect to
a partnership (whether general or limited), any general partner interest in such
partnership.
"Weighted Average Life to Stated Maturity" means, when applied to
any Indebtedness at any date, the number of years obtained by dividing (a) the
sum of the products obtained by multiplying (x) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect thereof, by (y)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (b) the then outstanding
principal amount of such Indebtedness; provided, however, that with respect to
any revolving Indebtedness, the foregoing calculation of Weighted Average Life
to Stated Maturity shall be determined based upon the total available
commitments and the required reductions of commitments in lieu of the
outstanding principal amount and the required payments of principal,
respectively.
"Wholly-Owned Restricted Subsidiary" means the Operating Partnership
or any Subsidiary of the Partnership of which 100% of the outstanding Capital
Stock is owned by the Partnership or by one or more Wholly-Owned Restricted
Subsidiaries of the Partnership or by the Partnership and one or more
Wholly-Owned Restricted Subsidiaries of the Partnership. For purposes of this
definition, any directors' qualifying shares or investments by foreign nationals
mandated by applicable law shall be disregarded in determining the ownership of
a Subsidiary.
1.2 Other Definitions
Defined in
Term Section
---- ----------
"Additional Notes" 2.2
"Asset Sale" 4.16
"Asset Sale Offer" 4.16
"Bankruptcy Law" 6.1
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"Change of Control Offer" 4.17
"Change of Control 4.17
Payment"
"Change of Control 4.17
Payment Date"
"Covenant Defeasance" 8.3
"Custodian" 6.1
"Excess Proceeds" 4.16
"incur" 4.8
"Legal Defeasance" 8.2
"Legal Holiday" 10.8
"Offer Amount" 3.9
"Offer Period" 3.9
"Paying Agent" 2.3
"Payment Restrictions 4.12
"Purchase Date" 3.9
"Registrar" 2.3
"Restricted Payments" 4.9
1.3 Incorporation by Reference of Trust Indenture Act
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder of Notes;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Issuers, as joint and several obligors,
or any successor obligor upon the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
1.4 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with generally accepted accounting principles in the
United States;
(3) references to "generally accepted accounting principles" shall mean
generally accepted accounting principles in effect in the United States as
of the date hereof, or as of the date such principles are to be applied,
as the context may require;
(4) "or" is not exclusive;
(5) words in the singular include the plural, and in the plural include
the singular;
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(6) provisions apply to successive events and transactions; and
(7) references to sections of or rules under the Securities Act or the
Exchange Act shall be deemed to include substitute, replacement or
successor or rules adopted by the SEC from time to time.
ARTICLE 2: THE NOTES
2.1 Form and Dating.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A, the terms of which are incorporated in
and made a part of this Indenture; provided, however, that Additional Notes
issued from time to time in accordance with this Indenture may contain such
changes as to form as are appropriate. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Note shall be
dated the date of its authentication. The Notes shall be in face denominations
of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture, and the Issuers and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
The Notes will initially be issued in global form, substantially in the
form of Exhibit A attached hereto (including footnote 1 thereto) and in
definitive form, substantially in the form of Exhibit A hereto (not including
footnote 1 thereto). The Global Notes shall represent such of the outstanding
Notes as shall be specified therein and shall provide that it shall represent
the aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from time
to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the amount of outstanding Notes represented thereby
shall be made by the Trustee in accordance with instructions given by the Holder
thereof as required by Section 2.6 hereof.
2.2 Execution and Authentication.
An Officer of each of the General Partner, on behalf of the Partnership
(or the Partnership, if the Partnership is a corporation), and of Finance
Corp. shall sign the Notes for each of the Partnership and Finance Corp. by
manual or facsimile signature. The seal of Finance Corp. shall be reproduced
on the Notes and may be in facsimile form.
If an Officer of the General Partner or of Finance Corp. whose signature
is on a Note no longer holds that office at the time the Note is authenticated,
the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature of the Trustee shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Issuers signed by an
Officer of each of the General Partner, on behalf of the Partnership (or the
Partnership, if the Partnership is a corporation), and of Finance Corp.,
authenticate Notes for original issue of an aggregate amount of $60,000,000.
The Trustee may appoint an authenticating agent acceptable to the Issuers
to authenticate Notes. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same right as an
Agent to deal with the Issuers or an Affiliate of the Issuers.
Subject to compliance with Section 4.8 and the other terms of this
Indenture, the Issuers are permitted to issue more notes after the Issue Date
("Additional Notes") under this Indenture in an unlimited amount. The Series C
Notes, the Series D Notes and Additional Notes subsequently issued under this
Indenture shall be treated as a
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single class for all purposes under this Indenture, including, without
limitation, waivers, amendments, redemptions and offers to purchase.
2.3 Registrar and Paying Agent.
The Issuers shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Issuers may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agents. The Issuers may change any
Paying Agent or Registrar without notice to any Holder. The Issuers shall notify
the Trustee of the name and address of any Agent not a party to this Indenture.
If the Issuers fail to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such and shall be entitled to appropriate
compensation in accordance with Section 7.7 hereof. The Partnership, Finance
Corp. or any of their Subsidiaries may act as Paying Agent or Registrar.
The Issuers shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which shall incorporate the provisions of
the TIA. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Issuers initially appoint The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
The Issuers initially appoint the Trustee to act as the Registrar and
Paying Agent and agent for service of notices and demands in connection with the
Notes.
2.4 Paying Agent to Hold Money in Trust.
The Issuers shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of, premium, if any, or interest on, or Liquidated Damages with
respect to, the Notes, and will notify the Trustee of any Default by the Issuers
in making any such payment. While any such Default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Issuers
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Issuers or any of their Subsidiaries) shall have no other liability for the
money. If either Issuer or any of their subsidiaries acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent.
2.5 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is
not the Registrar, the Issuers shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders, including
the aggregate principal amount of Notes held by each Holder, and the Issuers
shall otherwise comply with TIA Section 312(a).
2.6 Transfer and Exchange.
(a) Transfer and Exchange of Definitive Notes. When Definitive
Notes are presented to the Registrar with the request:
(x) to register the transfer of the Definitive Notes, or
(y) to exchange such Definitive Notes for an equal
principal amount of Definitive Notes of other
authorized denominations,
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the Registrar shall register the transfer or make the exchange as
requested if its requirement for such transactions are met; provided,
however, that the Definitive Notes presented or surrendered for
registration of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by the
Holder thereof or by his attorney, duly authorized in writing; and
(ii) in the case of Transfer Restricted Securities that are Definitive
Notes, shall be accompanied by the following additional information
and documents, as applicable, upon which the Registrar may
conclusively rely:
(A) if such Transfer Restricted Securities are being delivered to
the Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to
that effect (in substantially the form of Exhibit B hereto);
or
(B) if such Transfer Restricted Securities are being
transferred (1) to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act or (2)
pursuant to an exemption from registration in accordance
with Rule 144 (and based upon an opinion of counsel if the
Issuers so request) or (3) pursuant to an effective
registration statement under the Securities Act, a
certification to that effect from such Holder (in
substantially the form of Exhibit B hereto); or
(C) if such Transfer Restricted Securities are being
transferred to an institutional "accredited investor,"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under
the Securities Act pursuant to a private placement
exemption from the registration requirements of the
Securities Act (and based upon an opinion of counsel if the
Issuers so request), a certification to that effect from
such Holder (in substantially the form of Exhibit B hereto)
and a certification from the applicable transferee (in
substantially the form of Exhibit C hereto);
(D) if such Transfer Restricted Securities are being transferred
pursuant to an exemption from registration in accordance with
Rule 904 under the Securities Act (and based on an opinion of
counsel if the Issuers so request), certification to that
effect from such Holder (in substantially the form of Exhibits
B and D hereto); or
(E) if such Transfer Restricted Securities are being transferred
in reliance on another exemption from the registration
requirement of the Securities Act (and based upon an opinion
of counsel if the Issuers so request), a certification to that
effect from such Holder (in substantially the form of Exhibit
B hereto).
(b) Restriction on Transfer of a Definitive Note for a Beneficial
Interest in a Global Note. A Definitive Note may not be exchanged for a
beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive Note,
duly endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(i) if such Definitive Note is a Transfer Restricted Security,
certification, substantially in the form of Exhibit B hereto, upon
which the Trustee may conclusively rely, that such Definitive Note
is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in accordance with
Rule 144A under the Securities Act; and
(ii) whether or not such Definitive Note is a Transfer Restricted
Security, written instructions directing the Trustee to make, or
direct the Note Custodian to make, an endorsement on the
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Global Note to reflect an increase in the aggregate principal amount
of the Notes represented by the Global Note;
then the Trustee shall cancel such Definitive Note in accordance with Section
2.11 hereof and cause, or direct the Note Custodian to cause, in accordance with
the standing instructions and procedures existing between the Depositary and the
Note Custodian, the aggregate principal amount of Notes represented by the
Global Note to be increased accordingly. If no Global Notes are then
outstanding, the Issuers shall issue and, upon receipt of an authentication
order in accordance with Section 2.2 hereof, the Trustee shall authenticate a
new Global Note in the appropriate principal amount.
(c) Transfer and Exchange of Global Notes. The transfer and exchange
of Global Notes or beneficial interests therein shall be effected through the
Depositary, in accordance with this Indenture (including the restrictions on
transfer set forth herein) and the procedures of the Depositary therefor, which
shall include restrictions on transfer comparable to those set forth herein to
the extent required by the Securities Act.
(d) Transfer of a Beneficial Interest in a Global Note for a
Definitive Note.
(i) Any Person having a beneficial interest in a Global
Note may upon request exchange such beneficial
interest for a Definitive Note. Upon receipt by the
Trustee of written instructions or such other form of
instructions as is customary for the Depositary, from
the Depositary or its nominee on behalf of any Person
having a beneficial interest in a Global Note, and in
the case of a Transfer Restricted Security, the
following additional information and documents (all
of which may be submitted by facsimile), upon which
the Trustee may conclusively rely:
(A) if such beneficial interest is being transferred
to the Person designated by the Depositary as
being the beneficial owner, a certification from
such Person to that effect (in substantially the
form of Exhibit B hereto); or
(B) if such beneficial interest is being
transferred (1) to a "qualified institutional
buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A
under the Securities Act or (2) pursuant to an
exemption from registration in accordance with
Rule 144 under the Securities Act (and based
upon an opinion of counsel if the Issuers so
request) or (3) pursuant to an effective
registration statement under the Securities
Act, a certification to that effect from the
transferor (in substantially the form of
Exhibit B hereto); or
(C) if such beneficial interest is being
transferred to an institutional "accredited
investor," within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities
Act pursuant to a private placement exemption
from the registration requirements of the
Securities Act (and based upon an opinion of
counsel if the Issuers so request), a
certification to that effect from such
transferor (in substantially the form of
Exhibit B hereto) and a certification from the
applicable transferee (in substantially the
form of Exhibit C hereto); or
(D) if such beneficial interest is being
transferred pursuant to an exemption from
registration in accordance with Rule 904 under
the Securities Act (and based upon an opinion
of counsel if the Issuers so request),
certifications to that effect from such
transferor (in substantially the form of
Exhibits B and D hereto); or
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(E) if such beneficial interest is being
transferred in reliance on another exemption
from the registration requirements of the
Securities Act (and based upon an opinion of
counsel if the Issuers so request), a
certification to that effect from such
transferor (in substantially the form of
Exhibit B hereto);
the Trustee or the Note Custodian, at the direction of the
Trustee, shall, in accordance with the standing instructions
and procedures existing between the Depositary and the Note
Custodian, cause the aggregate principal amount of Global
Notes to be reduced accordingly and, following such reduction,
the Partnership shall execute and, upon receipt of an
authentication order in accordance with Section 2.2 hereof,
the Trustee shall authenticate and deliver to the transferee a
Definitive Note in the appropriate principal amount.
(ii) Definitive Notes issued in exchange for a beneficial
interest in a Global Note pursuant to this Section
2.6(d) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall
deliver such Definitive Notes to the Persons in whose
names such Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.6), a Global Note may
not be transferred as a whole 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 Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) Authentication of Definitive Notes in Absence of
Depositary. If at any time:
(i) the Depositary for the Notes notifies the Issuers that
the Depositary is unwilling or unable to continue as
Depositary for the Global Notes and a successor
Depositary for the Global Notes is not appointed by the
Issuers within 90 days after delivery of such notice; or
(ii) the Issuers, at their sole discretion, notify the
Trustee in writing that they elect to cause the issuance
of Definitive Notes under this Indenture,
then each of the Issuers will execute, and the Trustee, upon receipt of an
Officers' Certificate requesting the authentication and delivery of Definitive
Notes, will authenticate and deliver Definitive Notes, in an aggregate principal
amount equal to the principal amount of the Global Notes, in exchange for such
Global Notes and registered in such names as the Depositary shall instruct the
Trustee or the Issuers in writing.
(g) Legends.
(i) Except as permitted by the following paragraph (ii),
each Note certificate evidencing the Global Notes and
the Definitive Notes (and all Notes issued in exchange
therefor or substitution thereof) shall bear a legend in
substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL
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INTEREST HEREIN, THE HOLDER: (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A
"QIB"), (B) IT HAS ACQUIRED THIS NOTE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A) (1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AN "IAI"), (2) AGREES
THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO
AMERIGAS PARTNERS, L.P., AMERIGAS EAGLE FINANCE CORP. OR ANY OF THEIR
RESPECTIVE SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH
CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF
AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO AMERIGAS PARTNERS THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT], (F) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO AMERIGAS PARTNERS, L.P.) OR
(G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3) 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. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE
MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES
ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING."
Each Note certificate evidencing the Global Notes also shall bear the
paragraph referred to in footnote 1 in the form of Note attached hereto as
Exhibit A.
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security
represented by a Global Note) pursuant to Rule 144 under
the Securities Act or an effective registration
statement under the Securities Act:
(A) in the case of any Transfer Restricted Security
that is a Definitive Note, the Registrar shall
permit the Holder thereof to exchange such
Transfer Restricted Security for a Definitive
Note that does not bear the legend set forth in
(i) above and rescind any restriction on the
transfer of such Transfer Restricted Security;
and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer
Restricted Security shall not be required to
bear the legend set forth in (i) above if all
other interests in such Global Note have been
or are concurrently being sold or transferred
pursuant to Rule 144 under the Securities Act
or pursuant to an effective registration
statement under the Securities Act, but such
Transfer Restricted Security shall continue to
be subject to the provisions of Section 2.6(c)
hereof; provided, however, that with respect to
any
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request for an exchange of a Transfer Restricted
Security that is represented by a Global Note for
a Definitive Note that does not bear a legend set
forth in (i) above, which request is made in
reliance upon Rule 144, the Holder thereof shall
certify in writing to the Registrar that such
request is being made pursuant to Rule 144 (such
certification to be substantially in the form of
Exhibit B hereto).
(ii) Notwithstanding the foregoing, upon consummation of the
Exchange Offer, the Issuers shall issue and, upon
receipt of an authentication order in accordance with
Section 2.2 hereof, the Trustee shall authenticate
Series D Notes in exchange for Series C Notes accepted
for exchange in the Exchange Offer, which Series D Notes
shall not bear the legend set forth in (i) above, and
the Registrar shall rescind any restriction on the
transfer of such Notes, in each case unless the Holder
of such Series C Notes is either (A) a broker-dealer,
(B) a Person participating in the distribution of the
Series C Notes or (C) a Person who is an affiliate (as
defined in Rule 144A) of the Issuers. The Issuers shall
identify to the Trustee such Holders of the Notes in a
written certification signed by an Officer of each of
the Issuers and, absent certification from the Issuers
to such effect, the Trustee shall assume that there are
no such Holders.
(h) Cancellation and/or Adjustment of Global Note. At such time as
all beneficial interests in a Global Note have either been exchanged for
Definitive Notes, redeemed, repurchased or cancelled, such Global Note shall be
returned to or retained and cancelled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for
Definitive Notes, redeemed, repurchased or cancelled, the principal amount of
Notes represented by such Global Note shall be reduced and an endorsement shall
be made on such Global Note, by the Trustee or the Note Custodian, at the
direction of the Trustee to reflect such reduction.
(i) General Provisions with respect to Transfer and Exchanges.
(i) To permit registrations of transfers and exchanges, each
of the Issuers shall execute and the Trustee shall
authenticate Definitive Notes and Global Notes at the
Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Issuers
may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes
or similar governmental charges payable upon exchange or
transfer pursuant to Sections 3.9, 4.16, 4.17 and 9.5
hereof).
(iii) The Registrar shall not be required to register the
transfer or exchange of any Note selected for redemption
in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
(iv) All Definitive Notes and Global Notes issued upon any
registration of transfer or exchange of Definitive Notes
or Global Notes shall be the valid obligations of each
of the Issuers, as joint and several obligors,
evidencing the same debt, and entitled to the same
benefit under this Indenture as the Definitive Notes or
Global Notes surrendered upon such registration of
transfer or exchange.
(v) The Issuers shall not be required to issue, register the
transfer of or exchange Notes during a period beginning
at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.2 and
ending at the close of business on the day of selection.
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(vi) Prior to due presentment for registration of transfer
of any Note, the Trustee, any Agent and the Issuers may
deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the
purpose of receiving payment of principal of, and
premium, interest and Liquidated Damages, if any, on
such Note, and neither the Trustee, any Agent nor the
Issuers shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Definitive Notes and
Global Notes in accordance with the provisions of
Section 2.2 hereof.
(viii) None of the Issuers nor the Trustee will have any
responsibility or liability for any aspect of the
records relating to, or payments made on account of,
Notes by the Depositary, or for maintaining,
supervising or reviewing any records of the Depositary
relating to such Notes. None of the Issuers nor the
Trustee shall be liable for any delay by the related
Global Note Holder or the Depositary in identifying the
beneficial owners of the related Notes and each such
Person may conclusively rely on, and shall be protected
in relying on, instructions from such Global Note
Holder or of the Depositary for all purposes (including
with respect to the registration and delivery, and the
respective principal amounts, of the Notes to be
issued).
(ix) The Registrar shall retain copies of all letters,
notices and other written communications received
pursuant to this Section 2.6. The Issuers 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 Registrar.
2.7 Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or the Issuers and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Note, the Issuers shall issue and the Trustee, upon the written
order of the Issuers signed by an Officer of each of the General Partner, on
behalf of the Partnership (or the Partnership, if the Partnership is a
corporation) and Finance Corp. shall authenticate a replacement Note if the
Trustee's requirements are met. If required by the Trustee or the Issuers, an
indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Trustee and the Issuers to protect the Issuers, the Trustee, any Agent or
any authenticating agent from any loss which any of them may suffer if a Note is
replaced. The Issuers and the Trustee may charge for their expenses in replacing
a Note.
Every replacement Note is an obligation of the Issuers.
2.8 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee hereunder, and those described in this Section as not outstanding.
Except as set forth in Section 2.9 hereof, a Note does not cease to be
outstanding because either of the Issuers or an Affiliate of the Issuers holds a
Note.
If a Note is replaced pursuant to Section 2.7 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.1
hereof, it ceases to be outstanding and interest on it ceases to accrue.
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If the Paying Agent (other than the Issuers, a Subsidiary or an Affiliate
of any thereof) segregates and holds in trust, in accordance with this
Indenture, on a redemption date or maturity date, money sufficient to pay all
principal, interest, premium and Liquidated Damages, if any, payable on that
date with respect to the Notes (or the portion thereof to be redeemed or
maturing, as the case may be), then on and after that date such Notes (or
portions thereof) shall be deemed to be no longer outstanding and shall cease to
accrue interest.
2.9 Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by either
of the Issuers or any Affiliate of the Issuers shall be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which a Responsible Officer of the Trustee knows are so owned shall be so
disregarded.
2.10 Temporary Notes.
Until definitive Notes are ready for delivery, the Issuers may prepare and
the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Issuers and the Trustee consider appropriate for temporary Notes. Without
unreasonable delay, the Issuers shall prepare and the Trustee, upon receipt of
the written order of the Partnership and Finance Corp. signed by an Officer of
each of the General Partner, on behalf of the Partnership (or the Partnership,
if the Partnership is a corporation) and Finance Corp., shall authenticate,
definitive Notes in exchange for temporary Notes.
Until such exchange, Holders of temporary Notes shall be entitled to all
of the right, benefit and privileges of this Indenture.
2.11 Cancellation.
The Issuers at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee shall cancel all Notes surrendered for registration of transfer or
exchange, payment, replacement or cancellation. The Issuers may not issue new
Notes to replace Notes that have been redeemed or paid or that have been
delivered to the Trustee for cancellation. All cancelled Notes held by the
Trustee shall be destroyed and certification of their destruction delivered to
the Issuers unless by a written order, signed by one Officer of each of the
General Partner, on behalf of the Partnership (or the Partnership, if the
Partnership is a corporation), and Finance Corp., the Issuers shall direct that
cancelled Notes be returned to them.
2.12 Defaulted Interest.
If the Issuers default in a payment of interest on the Notes, they shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, which date shall be at the earliest practicable
date but in all events at least five Business Days prior to the payment date, in
each case at the rate provided in the Notes and in Section 4.1 hereof. The
Issuers shall, with the consent of the Trustee, fix or cause to be fixed each
such special record date and payment date. At least 15 days before the special
record date, the Issuers (or the Trustee, in the name of and at the expense of
the Issuers) shall mail to Holders a notice that states the special record date,
the related payment date and the amount of such interest to be paid.
ARTICLE 3: REDEMPTION AND OFFERS TO PURCHASE
3.1 Notice to Trustee.
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If the Issuers are required to make an offer to purchase Notes pursuant to
the provisions of Sections 4.16 or 4.17 hereof, they shall furnish to the
Trustee, at least 30 days before the scheduled purchase date, an Officers'
Certificate setting forth (i) the Section of this Indenture pursuant to which
the offer to purchase shall occur, (ii) the terms of the offer, (iii) the
purchase price, (iv) the principal amount of the Notes to be purchased, and (v)
further setting forth a statement to the effect that (a) the Partnership or one
of its Subsidiaries has made an Asset Sale and there are Excess Proceeds
aggregating more than $5 million and the amount of such Excess Proceeds or (b) a
Change of Control has occurred, as applicable.
3.2 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed, the Trustee shall select
the Notes to be redeemed among the Holders of the Notes pro rata, by lot or in
accordance with a method which the Trustee considers to be fair and appropriate
(and in such manner as complies with applicable legal and stock exchange
requirements, if any). In the event of partial redemption by lot, the particular
Notes to be redeemed shall be selected, unless otherwise provided herein, not
less than 30 nor more than 60 days prior to the redemption date by the Trustee
from the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Issuers in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
them selected shall be in face amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
In the event the Issuers are required to make an Asset Sale Offer pursuant
to Section 3.9 and Section 4.16, and the amount of the Net Proceeds from the
Asset Sale is not evenly divisible by $1,000, the Trustee shall promptly refund
to the Issuers the portion of such Excess Proceeds that is not necessary to
purchase the immediately lesser principal amount of Notes that is so divisible.
3.3 Notice of Redemption.
Subject to the provisions of Section 3.9 hereof, at least 30 days but not
more than 60 days before a redemption date, the Issuers shall mail a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price, separately stating the amount of any Liquidated
Damages to be paid in connection with the redemption;
(3) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption date,
upon surrender of such Note, a new Note or Notes in principal amount equal
to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(6) that, unless the Issuers default in making such redemption payment,
interest on Notes or portions of Notes called for redemption ceases to
accrue on and after the redemption date;
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(7) the paragraph of the Notes or Section of this Indenture pursuant to
which the Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Issuers' request, the Trustee shall give the notice of redemption
in the names of the Issuers and at their expense; provided, however, that the
Issuers shall deliver to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
3.4 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.3 herein,
Notes called for redemption become due and payable on the redemption date at the
redemption price stated in such notice. A notice of redemption may not be
conditional.
3.5 Deposit of Redemption Price.
On or before the redemption date, the Issuers shall deposit with the
Trustee (to the extent not already held by the Trustee) or with the Paying Agent
money in immediately available funds sufficient to pay the redemption price of
and accrued interest and Liquidated Damages, if any, on all Notes to be redeemed
on that date. The Trustee or the Paying Agent shall return to the Issuers any
money deposited with the Trustee or the Paying Agent by the Issuers in excess of
the amount necessary to pay the redemption price of, and accrued interest and
Liquidated Damages on all Notes to be redeemed.
If the Issuers comply with the provisions of the preceding paragraph, on
and after the redemption date, interest shall cease to accrue on the Notes or
the portions of Notes called for redemption. If a Note is redeemed on or after
an interest record date but on or prior to the related interest payment date,
then any accrued and unpaid interest and Liquidated Damages, if any, shall be
paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption shall not be so
paid upon surrender for redemption because of the failure of the Issuers to
comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption date until such principal is paid, and to the
extent lawful on any interest not paid on such unpaid principal, in each case at
the rate provided in the Notes and in Section 4.1 hereof.
3.6 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Issuers shall issue
and the Trustee shall authenticate for the Holder at the expense of the Issuers
a new Note equal in principal amount to the unredeemed portion of the Note
surrendered.
3.7 Optional Redemption.
The Notes are not subject to redemption at the option of the Issuers.
3.8 Mandatory Redemption.
Subject to the Issuers' obligation to make an offer to purchase or redeem
Notes under certain circumstances pursuant to Sections 3.9, 4.16 and 4.17
hereof, the Issuers shall have no mandatory redemption or sinking fund
obligations with respect to the Notes.
3.9 Offer to Purchase by Application of Excess Proceeds.
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Any Asset Sale Offer pursuant to Section 4.16 shall remain open for a
period of 20 Business Days following its commencement and no longer, except to
the extent that a longer period is required by applicable law (the "Offer
Period"). On a date within five Business Days after the termination of the Offer
Period (the "Purchase Date"), the Issuers shall purchase the principal amount of
Notes required to be purchased pursuant to Section 4.16 hereof (the "Offer
Amount") or, if less than the Offer Amount has been tendered, all Notes tendered
in response to the Asset Sale Offer. Payment for any Notes so purchased shall be
made in the same manner as interest payments are made.
The Issuers shall comply with any tender offer rules under the Exchange
Act which may then be applicable, including Rule 14e-1, in connection with any
offer required to be made by the Issuers to repurchase the Notes as a result of
an Asset Sale Offer. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 3.9, the Issuers shall
comply with the applicable securities laws or regulations and shall not be
deemed to have breached their obligations hereunder by virtue thereof.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest shall
be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Issuers shall send, by
first class mail, a notice to the Trustee and each of the Holders, with a copy
to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Asset Sale
Offer. The Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section
3.9 and Section 4.16 hereof and the length of time the Asset Sale Offer shall
remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Issuers default in making such payments, any
Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue
interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an
Asset Sale Offer may only elect to have all of such Note purchased and may not
elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note completed, or
transfer by book-entry transfer, to the Issuers, a depositary, if appointed by
the Issuers, or a Paying Agent at the address specified in the notice at least
three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the
Issuers, the depositary or the Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, the Issuers shall select the Notes to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Issuers so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry transfer).
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On or before the Purchase Date, the Issuers shall, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer,
or if less than the Offer Amount has been tendered, all Notes tendered, and
shall deliver to the Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Issuers in accordance with the
terms of this Section 3.9. The Issuers, the Depositary or the Paying Agent, as
the case may be, shall promptly (but in any case not later than five days after
the Purchase Date) mail or deliver to each tendering Holder an amount equal to
the purchase price of the Notes tendered by such Holder and accepted by the
Issuers for purchase, and the Issuers shall promptly issue a new Note, and the
Trustee, upon written request from the Issuers shall authenticate and mail or
deliver such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Issuers to the Holder thereof. The Issuers
shall publicly announce by means of a press release the results of the Asset
Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.9, any purchase
pursuant to this Section 3.9 shall be made pursuant to the provisions of
Sections 3.1 through 3.6 hereof.
No repurchase of Notes under this Section 3.9 shall be deemed to be a
redemption of Notes.
ARTICLE 4: COVENANTS
4.1 Payment of Notes.
The Issuers shall pay the principal of and interest on the Notes on the
dates and in the manner provided in the Notes. Principal and interest shall be
considered paid on the date due if the Paying Agent, other than the Issuers or
any of their Subsidiaries, holds on or before that date money deposited by the
Issuers in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due. The Issuers shall pay all
Liquidated Damages, if any, in the same manner on the dates and in the amounts
set forth in the Registration Rights Agreement. If any Liquidated Damages become
payable, the Issuers shall not later than the date that any payment of
Liquidated Damages is due (i) deliver an Officers' Certificate to the Trustee
setting forth the amount of Liquidated Damages payable to Holders and (ii)
instruct the Paying Agent to pay such amount of Liquidated Damages to Holders
entitled to receive such Liquidated Damages.
The Issuers shall pay interest (including post-petition interest under any
Bankruptcy Law) on overdue principal at a rate equal to 1% per annum in excess
of the then applicable interest rate on the Notes to the extent lawful; they
shall pay interest (including post-petition interest under any Bankruptcy Law)
on overdue installments of interest and Liquidated Damages (without regard to
any applicable grace period) at the same rate to the extent lawful.
4.2 Maintenance of Office or Agency.
The Partnership and Finance Corp. shall maintain in the Borough of
Manhattan, The City of New York, an office or agency (which may be an office of
the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Partnership and Finance Corp. in respect of the Notes and this Indenture may
be served. The Partnership shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Partnership and Finance Corp. shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
The Partnership and Finance Corp. may also from time to time designate one
or more other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Partnership or Finance Corp. of their respective
obligations to maintain an office or agency in the Borough of Manhattan, The
City of New York for such purposes. The Partnership will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
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The Partnership and Finance Corp. hereby designate the office of Harris
Trust Company, 77 Water Street, 5th Floor, New York, New York 10005 as one such
office or agency of the Issuers in accordance with Section 2.3.
4.3 Reports.
(a) Whether or not required by the rules and regulations of the SEC,
so long as any Notes are outstanding, the Issuers shall furnish to the Holders
of Notes (i) all quarterly and annual financial information that would be
required to be contained in a filing with the SEC on Forms 10-Q and 10-K if
either of the Issuers were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the financial condition and results of operations of
the Issuers and their subsidiaries and, with respect to the annual information
only, a report thereon by the Issuers' certified independent accountants and
(ii) all reports that would be required to be filed with the SEC on Form 8-K if
the Issuers were required to file such reports. In addition, whether or not
required by the rules and regulations of the SEC, each of the Issuers shall file
a copy of all such information and reports with the SEC for public availability
and make such information available to investors who request it in writing.
(b) For so long as any Transfer Restricted Securities remain
outstanding, other than during any period in which the Partnership is subject to
Section 13 or 15(d) of the Exchange Act and is in compliance with the
requirements thereof, each of the Issuers shall furnish to all Holders and
prospective purchasers of the Notes designated by the Holders of Transfer
Restricted Securities, promptly upon their request, the information required to
be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
4.4 Compliance Certificate.
(a) The Partnership shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Partnership and its Subsidiaries (including
Finance Corp.) during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether each has
kept, observed, performed and fulfilled its obligations under this Indenture,
and further stating, as to each such Officer signing such certificate, that to
the best of his knowledge each has kept, observed, performed and fulfilled each
and every covenant contained in this Indenture, and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
or thereof (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he may have knowledge and what
action each is making or proposes to take with respect thereto).
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.3 above shall be accompanied by a
written statement of the Partnership's independent certified public accountants
that in making the examination necessary for certification of such financial
statements nothing has come to their attention which would lead them to believe
that either the Partnership or any of its Subsidiaries has violated any
provisions of Sections 4.1, 4.5, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14,
4.15, 4.16 or 4.17 hereof or of Article 5 of this Indenture or, if any such
violation has occurred, specifying the nature and period of existence thereof,
it being understood that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) The Partnership and Finance Corp. shall, so long as any of the
Notes are outstanding, deliver to the Trustee, forthwith upon any Officer
becoming aware of (i) any Default or Event of Default or (ii) any event of
default under any other mortgage, indenture or instrument referred to in Section
6.1(4), an Officers' Certificate specifying such Default, Event of Default or
other event of default and what action the Issuers are taking or propose to take
with respect thereto.
4.5 Taxes.
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Each of the Partnership and Finance Corp. shall, and shall cause each of
its respective Subsidiaries to, pay prior to delinquency all material taxes,
assessment, and governmental levies except as contested in good faith and by
appropriate proceedings.
4.6 Stay, Extension and Usury Laws.
Each of the Partnership and Finance Corp. covenants (to the extent that
each may lawfully do so) that it shall not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture; and each of
the Partnership and Finance Corp. (to the extent that each may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it shall not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
4.7 Partnership and Corporate Existence.
Subject to Section 4.16 and Article 5 hereof, each of the Partnership and
Finance Corp. shall do or cause to be done all things necessary to preserve and
keep in full force and effect (a) its partnership or corporate existence, as the
case may be, and the corporate, partnership or other existence of each of their
respective Subsidiaries, in accordance with their respective organizational
documents (as the same may be amended from time to time) and (b) its (and its
Subsidiaries') rights (charter and statutory), licenses and franchises;
provided, however, that the Partnership and Finance Corp. shall not be required
to preserve any such right, license or franchise, or the corporate, partnership
or other existence of any Subsidiary, if the Board of Directors of the General
Partner on behalf of the Partnership (or the Partnership, if the Partnership is
a corporation) shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Issuers and their respective
Subsidiaries taken as a whole and that the loss thereof is not adverse in any
material respect to the Holders.
4.8 Limitation on Additional Indebtedness.
The Partnership shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or in any manner become directly or indirectly liable, contingently or
otherwise, for the payment of (in each case, to "incur"), any Indebtedness
(including, without limitation, any Redeemable Capital Stock), unless at the
time of such incurrence, and after giving pro forma effect to the receipt and
application of the proceeds of such Indebtedness, the Consolidated Fixed Charge
Coverage Ratio of the Partnership is greater than 2.00 to 1.
Notwithstanding the foregoing, the Partnership and its Restricted
Subsidiaries may incur Permitted Indebtedness.
4.9 Limitation on Restricted Payments.
The Partnership shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(a) declare or pay any dividend or make any other distribution or
payment on or in respect of Capital Stock of the Partnership or any of its
Restricted Subsidiaries or any payment made to the direct or indirect holders
(in their capacities as such) of Capital Stock of the Partnership or any of its
Restricted Subsidiaries (other than (x) dividends or distributions payable
solely in Capital Stock of the Partnership (other than Redeemable Capital Stock)
or in options, warrants or other rights to purchase Capital Stock of the
Partnership (other than Redeemable Capital Stock), (y) the declaration or
payment of dividends or other distributions to the extent declared or paid to
the Partnership or any Restricted Subsidiary of the Partnership and (z) the
declaration or payment of dividends or other distributions by any Restricted
Subsidiary of the Partnership to all holders of Capital Stock of such Restricted
Subsidiary on a pro rata basis (including, in the case of the Operating
Partnership, to the general partner thereof)),
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(b) purchase, redeem, defease or otherwise acquire or retire for
value any Capital Stock of the Partnership or any of its Restricted Subsidiaries
(other than any such Capital Stock owned by a Wholly-Owned Restricted Subsidiary
of the Partnership),
(c) make any principal payment on, or purchase, defease, repurchase,
redeem or otherwise acquire or retire for value, prior to any scheduled
maturity, scheduled repayment, scheduled sinking fund payment or other Stated
Maturity, any Subordinated Indebtedness (other than any such Indebtedness owned
by the Partnership or a Wholly-Owned Restricted Subsidiary of the Partnership),
or
(d) make any Investment (other than any Permitted Investment)
in any Person
(such payments or Investments described in the preceding clauses (a), (b), (c)
and (d) are collectively referred to as "Restricted Payments"), unless, at the
time of and after giving effect to the proposed Restricted Payment, (A) no
Default or Event of Default shall have occurred and be continuing and (B) such
Restricted Payment, together with the aggregate of all other Restricted Payments
made by the Partnership and its Restricted Subsidiaries during the fiscal
quarter during which such Restricted Payment is made, shall not exceed (I) if
the Consolidated Fixed Charge Coverage Ratio of the Partnership shall be greater
than 1.75 to 1, an amount equal to Available Cash as of the end of the
immediately preceding fiscal quarter or (II) if the Consolidated Fixed Charge
Coverage Ratio of the Partnership shall be equal to or less than 1.75 to 1, an
amount equal to the sum of (x) $24 million, less the aggregate amount of all
Restricted Payments made by the Partnership and its Restricted Subsidiaries
pursuant to this clause (II)(x) during the period ending on the last day of the
fiscal quarter of the Partnership immediately preceding the date of such
Restricted Payment and beginning on the first day of the sixteenth full fiscal
quarter immediately preceding the date of such Restricted Payment, plus (y) the
aggregate net cash proceeds of any substantially concurrent (1) capital
contribution to the Partnership from any Person (other than a Restricted
Subsidiary of the Partnership) or (2) issuance and sale of shares of Capital
Stock (other than Redeemable Capital Stock) of the Partnership to any Person
(other than to a Restricted Subsidiary of the Partnership). The amount of any
such Restricted Payment, if other than cash, shall be the fair market value (as
determined in good faith by the General Partner) on the date of such Restricted
Payment of the asset(s) proposed to be transferred by the Partnership or such
Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment.
None of the foregoing provisions will prohibit: (i) the payment of any
dividend or distribution within 60 days after the date of its declaration, if at
the date of declaration such payment would be permitted by the foregoing
paragraph; (ii) the redemption, repurchase or other acquisition or retirement of
any shares of any class of Capital Stock of the Partnership or any Restricted
Subsidiary of the Partnership in exchange for, or out of the net cash proceeds
of, a substantially concurrent (x) capital contribution to the Partnership from
any Person (other than a Restricted Subsidiary of the Partnership) or (y) issue
and sale of other shares of Capital Stock (other than Redeemable Capital Stock)
of the Partnership to any Person (other than to a Restricted Subsidiary of the
Partnership); provided, however, that the amount of any such net cash proceeds
that are utilized for any such redemption, repurchase or other acquisition or
retirement shall be excluded from the calculation of Available Cash; or (iii)
any redemption, repurchase or other acquisition or retirement of Subordinated
Indebtedness by exchange for, or out of the net cash proceeds of, a
substantially concurrent (x) capital contribution to the Partnership from any
Person (other than a Restricted Subsidiary of the Partnership) or (y) issue and
sale of (1) Capital Stock (other than Redeemable Capital Stock) of the
Partnership to any Person (other than to a Restricted Subsidiary of the
Partnership); or (2) Indebtedness of the Partnership issued to any Person (other
than a Restricted Subsidiary of the Partnership), so long as such Indebtedness
is Permitted Refinancing Indebtedness; provided, however, in each case, that the
amount of any such net cash proceeds that are utilized for any such redemption,
repurchase or other acquisition or retirement shall be excluded from the
calculation of Available Cash. In computing the amount of Restricted Payments
previously made for purposes of the preceding paragraph, Restricted Payments
made under clause (i) shall be included and Restricted Payments made under
clauses (ii) and (iii) shall not be so included.
4.10 Limitation on Liens.
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The Partnership shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume or suffer to exist any Liens, other than
Permitted Liens, upon any of its respective property or assets, whether owned on
the 10?% Series A Notes Issue Date or thereafter acquired.
4.11 Limitation on Transactions with Affiliates.
The Partnership shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without limitation,
the sale, transfer, disposition, purchase, exchange or lease of assets, property
or services), other than as provided for in the Operative Agreements, with, or
for the benefit of, any Affiliate of the Partnership, unless (1) such
transaction or series of related transactions is between the Partnership and its
Wholly-Owned Restricted Subsidiaries or between two Wholly-Owned Restricted
Subsidiaries or (2) (a) such transaction or series of related transactions is on
terms that are no less favorable to the Partnership or such Restricted
Subsidiary, as the case may be, than those which would have been obtained in a
comparable transaction at such time from Persons who are not Affiliates of the
Partnership or a Restricted Subsidiary and (b) with respect to a transaction or
series of transactions involving aggregate payments or value equal to or greater
than $15 million, the Partnership shall have delivered an Officers' Certificate
to the Trustee certifying that such transaction or series of transactions
complies with the preceding clause (a) and that such transaction or series of
transactions has been approved by a majority of the Board of Directors of the
General Partner (including a majority of the Disinterested Directors); provided,
however, that this Section 4.11 will not restrict the Partnership, any
Restricted Subsidiary or the General Partner from entering into (A) any
employment agreement, stock option agreement, restricted stock agreement or
other similar agreement in the ordinary course of business, (B) transactions
permitted by the provisions of this Indenture set forth in Section 4.9 hereof
and (C) transactions in the ordinary course of business in connection with
reinsuring the self-insurance programs or other similar forms of retained
insurable risks of the retail propane business operated by the Partnership, its
Subsidiaries and Affiliates.
4.12 Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries.
The Partnership shall not, and shall not permit any of its Restricted
Subsidiaries to, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to (a) pay dividends, in cash or otherwise, or make any other
distributions on or in respect of its Capital Stock or any other interest or
participation in, or measured by, its profits, (b) pay any Indebtedness owed to
the Partnership or any other Restricted Subsidiary, (c) make loans or advances
to, or any investment in, the Partnership or any other Restricted Subsidiary,
(d) transfer any of its properties or assets to the Partnership or any other
Restricted Subsidiary or (e) guarantee any Indebtedness of the Partnership or
any other Restricted Subsidiary (collectively, "Payment Restrictions"), except
for such encumbrances or restrictions existing under or by reason of (i)
applicable law, (ii) any agreement in effect at or entered into on the 10?%
Series A Notes Issue Date (including, without limitation, the First Mortgage
Notes outstanding as of the 10?% Series A Notes Issue Date and the Bank Credit
Facilities in effect as of the 10?% Series A Notes Issue Date) or any agreement
relating to any Permitted Indebtedness; provided, however, that the encumbrances
and restrictions contained in the agreements governing such Permitted
Indebtedness are no more restrictive with respect to such Payment Restrictions
than those set forth in the agreements governing the First Mortgage Notes and
the Bank Credit Facilities as in effect on the 10?% Series A Notes Issue Date,
(iii) customary non-assignment provisions of any contract or any lease governing
a leasehold interest of the Partnership or any Restricted Subsidiary, (iv)
purchase money obligations for property acquired in the ordinary course of
business that impose restrictions of the nature described in clause (d) above on
the property so acquired, (v) any agreement or other instrument of a Person
acquired by the Partnership or any Restricted Subsidiary (or of a Restricted
Subsidiary of such Person) in existence at the time of such acquisition (but not
created in contemplation thereof), which encumbrance or restriction is not
applicable to any Person or the properties or assets of any Person other than
the Person, or the properties, assets or Subsidiaries of the Person, so
acquired, or (vi) provisions contained in agreements or instruments relating to
Indebtedness which prohibit the transfer of all or substantially all of the
assets of the obligor thereunder unless the transferee shall assume the
obligations of the obligor under such agreement or instrument.
4.13 Limitation on Sale and Leaseback Transactions.
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The Partnership shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any Sale and Leaseback Transaction with respect to
any property of the Partnership or any of its Restricted Subsidiaries.
Notwithstanding the foregoing, the Partnership and its Restricted Subsidiaries
may enter into Sale and Leaseback Transactions with respect to property acquired
or constructed after the 10?% Series A Notes Issue Date; provided that (a) the
Partnership or such Restricted Subsidiary would be permitted under this
Indenture to incur Indebtedness secured by a Lien on such property in an amount
equal to the Attributable Debt with respect to such Sale and Leaseback
Transaction, or (b) the lease in such Sale and Leaseback Transaction is for a
term not in excess of the lesser of (i) three years and (ii) 60% of the
remaining useful life of such property.
4.14 Limitation on Finance Corp.
In addition to the restrictions set forth under Section 4.8 hereof,
Finance Corp. may not incur any Indebtedness unless (a) the Partnership is a
co-obligor and guarantor of such Indebtedness or (b) the net proceeds of such
Indebtedness are lent to the Partnership, used to acquire outstanding debt
securities issued by the Partnership or used directly or indirectly to refinance
or discharge Indebtedness permitted under the limitation of this Section 4.14.
Finance Corp. may not engage in any business not related directly or indirectly
to obtaining money or arranging financing for the Partnership.
4.15 Line of Business.
The Partnership and its Restricted Subsidiaries shall not materially or
substantially engage in any business other than the Business in which the
Partnership and its Restricted Subsidiaries were engaged on the 10?% Series A
Notes Issue Date.
4.16 Asset Sales.
The Partnership shall not, and shall not permit any of its Restricted
Subsidiaries to, (i) sell, lease, convey or otherwise dispose of any assets
(including by way of a Sale and Leaseback Transaction) other than sales of
inventory in the ordinary course of business and consistent with past practice
(provided, that the sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Partnership shall be governed by the
provisions of this Indenture set forth under Section 4.17 hereof or Article 5
hereof and not by the provisions of this Section 4.16) or (ii) issue or sell
Capital Stock of any of its Restricted Subsidiaries, in the case of either
clause (i) or (ii) above, whether in a single transaction or a series of related
transactions (each of the foregoing, an "Asset Sale"), unless (x) the
Partnership (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value (as determined in good faith by the General Partner) of the assets sold or
otherwise disposed of and (y) at least 80% of the consideration therefor
received by the Partnership or such Restricted Subsidiary is in the form of
cash; provided, however, that the amount of (A) any liabilities (as shown on the
Partnership's or such Restricted Subsidiary's most recent balance sheet or in
the notes thereto) of the Partnership or any Restricted Subsidiary that are
assumed by the transferee of any such assets and (B) any notes or other
obligations received by the Partnership or any such Restricted Subsidiary from
such transferee that are immediately converted by the Partnership or such
Restricted Subsidiary into cash (to the extent of the cash received), shall be
deemed to be cash for purposes of this provision; and provided, further, that
the 80% limitation referred to in this clause (y) shall not apply to any Asset
Sale in which the cash portion of the consideration received therefrom,
determined in accordance with the foregoing proviso, is equal to or greater than
what the after-tax proceeds would have been had such Asset Sale complied with
the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales
shall not be deemed to include (1) any transfer of assets or Capital Stock by
the Partnership or any of its Restricted Subsidiaries to a Wholly-Owned
Restricted Subsidiary of the Partnership, (2) any transfer of assets or Capital
Stock by the Partnership or any of its Restricted Subsidiaries to any Person in
exchange for other assets used in a line of business permitted under Section
4.15 hereof and having a fair market value (as determined in good faith by the
General Partner) not less than that of the assets so transferred and (3) any
transfer of assets pursuant to a Permitted Investment.
In the event that the aggregate Net Proceeds received by the
Partnership or any of its Restricted Subsidiaries from one or more Assets Sales
in any fiscal year of the Partnership exceed $10 million, within 270 days after
the date such aggregate Net Proceeds exceed such amount (or such longer period
as may be required to comply with any
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agreement in effect on the 10?% Series A Notes Issue Date), the Partnership, at
its option, shall apply the amount of such aggregate Net Proceeds in excess of
$10 million (less the amount of any such Net Proceeds previously applied during
such fiscal year for the purposes set forth in clauses (a) or (b) below) to (a)
reduce Indebtedness of a Restricted Subsidiary (with a permanent reduction of
availability in the case of revolving Indebtedness) or (b) make an investment in
assets in the same line of business the Partnership was engaged in on the 10?%
Series A Notes Issue Date. Pending the final application of any such Net
Proceeds, the Partnership or any Restricted Subsidiary may temporarily reduce
borrowings under the Bank Credit Facilities or otherwise invest such Net
Proceeds in any manner that is not prohibited by this Indenture. Any such Net
Proceeds that are not applied or invested as provided in the first sentence of
this paragraph will be deemed to constitute "Excess Proceeds." When the
aggregate amount of Excess Proceeds exceeds $5 million, the Issuers shall make
an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum
principal amount of Notes that may be purchased out of the Excess Proceeds, at
an offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of purchase, in
accordance with the procedures set forth in this Indenture. To the extent that
the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less
than the Excess Proceeds, the Partnership or any Restricted Subsidiary may use
such deficiency for general business purposes. If the aggregate principal amount
of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds,
the Trustee shall select the Notes to be purchased on a pro rata basis.
Notwithstanding the foregoing, if the Issuers are required to commence
an Asset Sale Offer at any time when the Issuers have securities outstanding
ranking pari passu in right of payment with the Notes and the terms of those
securities provide that a similar offer must be made with respect to those other
securities, then the Asset Sale Offer for the Notes will be made concurrently
with the other offers and securities of each issue will be accepted on a pro
rata basis in proportion to the aggregate principal amount of securities of each
issue which their holders elect to have purchased. Upon completion of the Asset
Sale Offer, the amount of Excess Proceeds will be reset at zero.
4.17 Change of Control.
Upon the occurrence of a Change of Control, each Holder of Notes shall
have the right to require the Issuers to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described below (the "Change of Control Offer") at an offer price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase (the "Change of Control Payment").
Within 30 days following any Change of Control, the Issuers will mail a notice
to each Holder stating: (1) that the Change of Control Offer is being made
pursuant to this Section 4.17 and that all Notes tendered will be accepted for
payment; (2) the purchase price and the purchase date (the "Change of Control
Payment Date"), which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed; (3) that any Note not tendered will
continue to accrue interest; (4) that, unless the Issuers default in the payment
of the Change of Control Payment, all Notes accepted for payment pursuant to the
Change of Control Offer will cease to accrue interest after the Change of
Control Payment Date; (5) that Holders electing to have any Notes purchased
pursuant to a Change of Control Offer will be required to surrender the Notes,
with the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Notes completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day preceding the Change of
Control Payment Date; (6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the close of business on
the Second Business Day preceding the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
holder, the principal amount of Notes delivered for purchase, and a statement
that such Holder is withdrawing his election to have such Notes purchased; and
(7) that Holders whose Notes are being purchased only in part will be issued new
Notes equal in principal amount to the unpurchased portion of the Notes
surrendered, which unpurchased portion must be equal to $1,000 in principal
amount or an integral multiple thereof.
On the Change of Control Payment Date, the Issuers shall, to the extent
lawful, (1) accept for payment Notes or portions thereof tendered pursuant to
the Change of Control Offer, (2) deposit with the Paying Agent an amount equal
to the Change of Control Payment in respect of all Notes or portions thereof so
tendered and (3) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the aggregate amount of
the Notes or portions thereof tendered to the Issuers. The Paying Agent will
promptly mail to each Holder of Notes so accepted the Change of Control Payment
for such Notes, and the Trustee will promptly authenticate and mail to each
Holder a new Note equal in principal amount to the unpurchased portion of the
Notes surrendered, if any; provided that
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each such new Note will be in a principal amount of $1,000 or an integral
multiple thereof. The Issuers will publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
The Issuers shall comply with any tender offer rules under the Exchange
Act which may then be applicable, including Rule 14e-1, in connection with any
offer required to be made by the Issuers to repurchase the Notes as a result of
a Change of Control. To the extent that the provisions of any applicable
securities laws or regulations conflict with provisions of this Section 4.17,
the Issuers shall comply with such securities laws and regulations and shall not
be deemed to have breached its obligations hereunder by virtue thereof.
ARTICLE 5: SUCCESSORS
5.1 Merger, Consolidation or Sale of Assets.
(a) The Partnership shall not consolidate or merge with or
into (whether or not the Partnership is the surviving Person), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to, another Person
unless (i) the Partnership is the surviving Person, or the Person formed by or
surviving any such consolidation or merger (if other than the Partnership) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation or partnership organized or existing under
the laws of the United States, any state thereof or the District of Columbia;
(ii) the Person formed by or surviving any such consolidation or merger (if
other than the Partnership) or the Person to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made assumes
all the obligations of the Partnership pursuant to a supplemental indenture in a
form reasonably satisfactory to the Trustee, under the Notes and this Indenture;
(iii) immediately after such transaction no Default or Event of Default exists;
and (iv) the Partnership or such other Person formed by or surviving any such
consolidation or merger, or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made (A) will have Consolidated
Net Worth (immediately after the transaction but prior to any purchase
accounting adjustments resulting from the transaction) equal to or greater than
the Consolidated Net Worth of the Partnership immediately preceding the
transaction and (B) will, at the time of such transaction and after giving pro
forma effect thereto as if such transaction had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Consolidated Fixed Charge Coverage Ratio
test set forth in Section 4.8 hereof.
(b) Finance Corp. shall not consolidate or merge with or into
(whether or not Finance Corp. is the surviving Person), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to, another Person
unless (i) Finance Corp. is the surviving Person, or the Person formed by or
surviving any such consolidation or merger (if other than Finance Corp.) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation organized or existing under the laws of
the United States, any state thereof or the District of Columbia and a
Wholly-Owned Restricted Subsidiary of the Partnership; (ii) the Person formed by
or surviving any such consolidation or merger (if other than Finance Corp.) or
the Person to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all the obligations of Finance Corp.,
pursuant to a supplemental indenture in a form reasonably satisfactory to the
Trustee, under the Notes and this Indenture; and (iii) immediately after such
transaction no Default or Event of Default exists.
(c) The Partnership or Finance Corp., as the case may be,
shall deliver to the Trustee prior to the consummation of any proposed
transaction subject to the foregoing paragraphs (a) and (b) an Officers'
Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed transaction and such supplemental indenture comply with this Indenture.
The Trustee shall be entitled to conclusively rely upon such Officers'
Certificate and Opinion of Counsel.
5.2 Successor Person Substituted.
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Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Partnership or Finance Corp. in accordance with Section 5.1 hereof, the
successor Person formed by such consolidation or into or with which the
Partnership or Finance Corp. is merged or to which such sale, assignment,
transfer, lease, conveyance or other disposition is made shall succeed to, and
be substituted for (so that from and after the date of such consolidation,
merger, sale, lease, conveyance or other disposition, the provisions of this
Indenture referring to the "Partnership," "Finance Corp." or the "Issuers," as
the case may be, shall refer to or include instead the successor Person and not
the Partnership or Finance Corp., as the case may be), and may exercise every
right and power of the Partnership or Finance Corp., as the case may be, under
this Indenture with the same effect as if such successor Person had been named
as the Partnership or Finance Corp., as the case may be, herein.
ARTICLE 6: DEFAULTS AND REMEDIES
6.1 Events of Default.
An "Event of Default" occurs if:
(1) the Issuers default in the payment of the principal of or premium,
if any, on any Note when the same becomes due and payable (upon Stated
Maturity, acceleration, required purchase, scheduled principal payment
or otherwise); or
(2) the Issuers default in the payment of an installment of interest
on, or Liquidated Damages, if any, with respect to, any of the Notes,
when the same becomes due and payable, which default continues for a
period of 30 days; or
(3) either of the Issuers fails to perform or observe any other term,
covenant or agreement contained in the Notes or this Indenture (other
than a default specified in clause (i) or (ii) above) and such default
continues for a period of 45 days after written notice of such default
requiring the Issuers to remedy the same shall have been given (x) to
the Partnership by the Trustee or (y) to the Issuers and the Trustee by
Holders of 25% in aggregate principal amount of the Notes then
outstanding; or
(4) a default or defaults occur under one or more agreements,
instruments, mortgages, bonds, debentures or other evidences of
Indebtedness under which the Partnership or any Restricted Subsidiary
then has outstanding Indebtedness, which default (a) is caused by
failure to pay (x) principal with respect to Indebtedness of a
Restricted Subsidiary at its Stated Maturity or within the applicable
grace period, if any, provided with respect to such Indebtedness or (y)
principal, premium or interest with respect to Indebtedness of the
Partnership within the applicable grace period, if any, provided in
such Indebtedness (collectively, a "Payment Default") or (b) results in
the acceleration of such Indebtedness prior to its Stated Maturity and,
in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which
there has been a Payment Default or the maturity of which has been so
accelerated, aggregates $10 million or more; or
(5) a final judgment or judgments (which is or are non-appealable and
non-reviewable or which has or have not been stayed pending appeal or
review or as to which all rights to appeal or review have expired or
been exhausted) shall be rendered against the Partnership, any
Restricted Subsidiary, the General Partner or any Significant
Subsidiary for the payment of money in excess of $10 million in the
aggregate and which judgment or judgments shall not be covered by
insurance or discharged or execution thereon stayed pending appeal or
review within 60 days after entry of such judgment, or, in the event of
such a stay, such judgment shall not be discharged within 30 days after
such stay expires;
(6) the Partnership, Finance Corp. or any of their respective
Significant Subsidiaries pursuant to or within the meaning of any
Bankruptcy Law:
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(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in
an involuntary case,
(c) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors,
(e) admits in writing its inability to pay debts as the same
become due; or
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(a) is for relief against the Partnership, Finance Corp. or
any of their respective Significant Subsidiaries in an
involuntary case,
(b) appoints a Custodian of the Partnership, Finance Corp. or
any of their respective Significant Subsidiaries or for all or
substantially all of their property,
(c) orders the liquidation of the Partnership, Finance Corp.
or any of their respective Significant Subsidiaries,
and the order or decree remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A Default under clause (3) is not an Event of Default until the Trustee
notifies the Issuers, or the Holders of at least 25% in principal amount of the
then outstanding Notes notify the Issuers and the Trustee, of the Default and
the Issuers do not cure the Default within 45 days after receipt of the notice.
The notice must specify the Default, demand that it be remedied and state that
the notice is a "Notice of Default."
6.2 Acceleration.
If an Event of Default (other than an Event of Default specified in
clauses (6) and (7) of Section 6.1) occurs and is continuing, the Trustee by
notice to the Issuers, or the Holders of at least 25% in principal amount of the
then outstanding Notes by written notice to the Issuers and the Trustee may
declare the unpaid principal of and any accrued interest on all the Notes to be
due and payable. Upon such declaration the principal and interest shall be due
and payable immediately. If an Event of Default specified in clause (6) or (7)
of Section 6.1 occurs, such an amount shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder. The Holders of a majority in principal amount of the then
outstanding Notes by written notice to the Trustee may rescind an acceleration
and its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default (except nonpayment of principal or
interest that has become due solely because of the acceleration) have been cured
or waived.
6.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy (under this Indenture or otherwise) to collect the payment
of principal or interest on the Notes or to enforce the performance of any
provision of the Notes, this Indenture or the Registration Rights Agreement.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of Notes in exercising any right or remedy
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accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
6.4 Waiver of Past Defaults.
Holders of a majority in principal amount of the then outstanding Notes
by notice to the Trustee may waive an existing Default or Event of Default and
its consequences, except a continuing Default or Event of Default in the payment
of the principal of, premium, if any or interest on, or Liquidated Damages with
respect to any Note held by a non-consenting Holder. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
6.5 Control by Majority.
The Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
it. However, the Trustee may refuse to follow any direction that conflicts with
law or this Indenture that the Trustee determines may be unduly prejudicial to
the rights of other Holders of Notes, or that may involve the Trustee in
personal liability.
6.6 Limitation on Suits.
A Holder of Notes may pursue a remedy with respect to this Indenture or
the Notes only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision
of indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of Notes may not use this Indenture to prejudice the rights of another
Holder of Notes or to obtain a preference or priority over another Holder of
Notes.
6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium and interest on, or
Liquidated Damages, if any, with respect to the Notes, on or after the
respective due dates expressed in the Note, or to bring suit for the enforcement
of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
6.8 Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(1) or (2) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Issuers for the whole amount of
principal and interest remaining unpaid on the Notes and interest on overdue
principal and, to the extent lawful, interest
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and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
6.9 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of Notes allowed in any judicial proceedings relative to the Issuers (or
any other obligor upon the Notes), their creditors or their property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder of Notes to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders of Notes, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.7 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties which the
Holders of the Notes may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder of Notes any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder of Notes in any such proceeding.
6.10 Priorities.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.7, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes for
principal, premium, Liquidated Damages and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Notes
for principal and interest, respectively; and
Third: to the Issuers or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes.
6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.7, or a suit by Holders of more than 10% in principal
amount of the then outstanding Notes.
ARTICLE 7: TRUSTEE
7.1 Duties of Trustee.
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(1) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(2) Except during the continuance of an Event of Default:
(a) The duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in
this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee.
(b) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of
this Indenture.
(3) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(a) This paragraph does not limit the effect of paragraph (2)
of this Section.
(b) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts.
(c) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5.
(4) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to
paragraphs (1), (2) and (3) of this Section.
(5) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee may refuse to
perform any duty or exercise any right or power unless it receives
indemnity satisfactory to it against any loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Issuers.
Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
7.2 Rights of Trustee.
Subject to the provisions of Sections 315(a) through 315(d) of the TIA:
(1) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in
the document.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel.
The Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete
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authorization and protection from liability, in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(3) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Issuers shall be
sufficient if signed by an Officer of the General Partner, on behalf of
the Partnership (or the Partnership, if the Partnership is a
corporation) or by an Officer of Finance Corp.
7.3 Definitive Rights of Trustee.
The Trustee in its individual or any other capacity may become the
Holder or pledgee of Notes and may otherwise deal with the Partnership, Finance
Corp. or an Affiliate of the Partnership or Finance Corp. with the same rights
it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to Sections 7.10 and 7.11.
7.4 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Issuers' use of the proceeds from the Notes or any money
paid to the Issuers or upon the Issuers' direction under any provision hereof,
it shall not be responsible for the use or application of any money received by
any Paying Agent other than the Trustee and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication and that it is duly authorized to execute
and deliver this Indenture, authenticate the Notes and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility and
Qualification on Form T-1, if any, supplied to the Issuers are true and accurate
subject to the qualifications set forth therein.
7.5 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to a Responsible Officer of the Trustee, the Trustee shall mail to Holders
of Notes a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment on any
Note pursuant to Section 6.1(1) or (2), the Trustee may withhold the notice if
it determines in good faith that withholding the notice is in the interests of
Holders of Notes.
7.6 Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall mail to Holders of Notes a brief
report dated as of such reporting date that complies with TIA Section 313(a)
(but if no event described in TIA Section 313(a) has occurred within the twelve
months preceding the reporting date, no report need be transmitted). The Trustee
also shall comply with TIA Section 313(b). The Trustee shall also transmit by
mail all reports as required by TIA Section 313(c).
Commencing at the time this Indenture is qualified under the TIA, a
copy of each report at the time of its mailing to Holders of Notes shall be
filed with the SEC and each stock exchange on which the Notes are listed. The
Issuers shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
7.7 Compensation and Indemnity.
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The Issuers shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuers shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel, except such disbursements, advances and expenses as may be
attributable to its negligence or bad faith.
The Issuers shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it without negligence or bad faith on its
part arising out of or in connection with the acceptance or administration of
its duties under this Indenture, except as set forth below. The Trustee shall
notify the Issuers promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Issuers shall not relieve the Issuers of
their obligations hereunder. The Issuers shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Issuers shall pay the reasonable fees and expenses of such counsel. Neither the
Partnership nor Finance Corp. need pay for any settlement made without their
consent, which consent shall not be unreasonably withheld.
The obligations of the Issuers under this Section 7.7 shall survive the
satisfaction and discharge of this Indenture.
The Issuers need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through its own negligence or bad
faith.
To secure the Issuers' payment obligations in this Section, the Issuers
hereby grant to the Trustee a Lien prior to the Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(6) or (7) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
7.8 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign at any time and be discharged from the trust
hereby created by so notifying the Issuers. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Issuers. The Issuers may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuers shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuers.
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If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Partnership,
Finance Corp. or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee after written request by any Holder of Notes who has
been a Holder of Notes for at least six months fails to comply with Section
7.10, such Holder of Notes may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Notes. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided all sums owing
to the Trustee hereunder have been paid and subject to the Lien provided for in
Section 7.7. Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Issuers' obligations under Section 7.7 hereof shall continue for the
benefit of the retiring Trustee.
7.9 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state thereof authorized under such laws to exercise corporate
trust powers, shall be subject to supervision or examination by Federal or state
authority and shall have a combined capital and surplus of at least $100,000,000
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1) and 310(a)(5). The Trustee is subject to
TIA Section 310(b).
7.11 Preferential Collection of Claims Against Issuers.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8: LEGAL DEFEASANCE AND COVENANT DEFEASANCE
8.1 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuers may, at the option of the Board of Directors of the General
Partner, on behalf of the Partnership (or the Partnership, if the Partnership is
a corporation), and the Board of Directors of Finance Corp., in each case
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to apply either Section 8.2 or 8.3 hereof to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
8.2 Legal Defeasance and Discharge.Legal Defeasance and Discharge.
Upon the Issuers' exercise under Section 8.1 hereof of the option
applicable to this Section 8.2, the Issuers shall, subject to the satisfaction
of the conditions set forth in Section 8.4 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Issuers shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.5 hereof and the other Sections of this Indenture
referred to in (a)
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and (b) below, and to have satisfied all their other obligations under such
Notes and this Indenture (and the Trustee, on demand of and at the expense of
the Issuers, shall execute proper instruments acknowledging the same), except
for the following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in Section 8.4 hereof, and as more fully
set forth in such Section, payments in respect of the principal of, premium, if
any, interest and Liquidated Damages, if any, on such Notes when such payments
are due, (b) the Issuers' obligations with respect to outstanding Notes under
Article 2 and Section 4.2 hereof, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Issuers' obligations in connection
therewith and (d) this Article 8. Subject to compliance with this Article 8, the
Issuers may exercise their option under this Section 8.2 notwithstanding the
prior exercise of their option under Section 8.3 hereof.
8.3 Covenant Defeasance.
Upon the Issuers' exercise under Section 8.1 hereof of the option
applicable to this Section 8.3, each of the Issuers shall, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, be released from
their obligations under the covenants contained in Section 4.3(a), 4.4, 4.5,
4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16 and 4.17 and Article 5
hereof with respect to the outstanding Notes on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"),
and the Notes shall thereafter be deemed not "outstanding" for the purposes of
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Issuers may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein or in any other document, and such omission to comply shall not
constitute a Default under Section 6.1 hereof, but, except as specified above,
the remainder of this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Issuers' exercise under Section 8.1 hereof of the option
applicable to this Section 8.3 hereof, subject to the satisfaction of the
conditions set forth in Section 8.4 hereof, Sections 6.1(3), 6.1(4) and 6.1(5)
hereof, and Sections 6.1(6) and 6.1(7) hereof with respect to any Restricted
Subsidiary that is a Significant Subsidiary, shall not constitute Events of
Default.
8.4 Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.2 or 8.3 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance, as
applicable:
(a) the Issuers must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in United States dollars,
non-callable Government Securities, or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants, to pay the principal of, premium and
Liquidated Damages, if any, and interest on the outstanding Notes on the stated
date for payment thereof or on the applicable redemption date, as the case may
be;
(b) in the case of an election under Section 8.2 hereof, the
Issuers shall have delivered to the Trustee an Opinion of Counsel in the United
States not unacceptable to the Trustee in its reasonable discretion confirming
that (A) the Issuers have received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this Indenture, there
has been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not occurred
(which opinion need not address the effect of a transfer or other disposition of
a Holder's interest in a Note before the stated maturity or applicable
redemption date);
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(c) in the case of an election under Section 8.3 hereof, the
Issuers shall have delivered to the Trustee an Opinion of Counsel in the United
States not unacceptable to the Trustee in its reasonable discretion confirming
that the Holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant Defeasance
had not occurred (which opinion need not address the effect of a transfer or
other disposition of a Holder's interest in a Note before the stated maturity or
applicable redemption date);
(d) no Default shall have occurred and be continuing on the
date of such deposit or insofar as Section 6.1(6) or 6.1(7) hereof are
concerned, at any time in the period ending on the 91st day after the date of
deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violations of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which either of the
Issuers or any of their respective Restricted Subsidiaries is a party or by
which either of the Issuers or any of their respective Restricted Subsidiaries
is bound;
(f) on or prior to the 91st day following the deposit, the
Issuers shall have delivered to the Trustee an Opinion of Counsel to the effect
that on the 91st day following the deposit, the trust funds are not subject to
any applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Issuers shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Issuers with
the intent of preferring the Holders over any other creditors of the Issuers or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Issuers; and
(h) the Issuers shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
8.5 Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions.
Subject to Section 8.6 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.4 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Issuers acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, but
such money need not be segregated from other funds except to the extent required
by law.
The Issuers shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.4. hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
8.6 Repayment to Issuers.
(a) Anything in this Article 8 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuers from time to
time upon the request of the Issuers any money or non-callable Government
Securities held by it as provided in Section 8.4 hereof which, in the opinion of
a nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee (which may
be the opinion delivered under Section 8.4(a) hereof), are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
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(b) Subject to any applicable abandoned property law, the
Trustee and the Paying Agent shall pay to the Issuers upon request any money
held by them for the payment of principal, interest, premium or Liquidated
Damages, if any, that remains unclaimed for one year after such principal,
interest, premium or Liquidated Damages, if any, became due and payable, and,
thereafter, Holders entitled to the money must look to the Issuers for payment
of such money as secured creditors and all liability of the Trustee and the
Paying Agent with respect to such money shall cease.
8.7 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.2 or
8.3 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Issuers' obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.2 or 8.3 hereof,
as the case may; provided that, if the Issuers make any payment of principal of,
premium, if any, or interest on any Note following the reinstatement of its
obligations, the Issuers shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
8.8 Discharge of Liability on Securities; Defeasance.
When (a)(i) the Issuers deliver to the Trustee all outstanding Notes
for cancellation or (ii) all outstanding Notes have become due and payable,
whether at maturity or on a specified redemption date as a result of the mailing
of a notice of redemption pursuant to Article 3 hereof, (b) the Issuers
irrevocably deposit with the Trustee money sufficient to pay at maturity or upon
redemption all outstanding Notes, including interest, premium and Liquidated
Damages thereon to maturity or such redemption date, and if in either case the
Issuers pay all other sums payable hereunder by the Issuers, and (c) if the
Notes have been called for redemption and the redemption date has not occurred,
the Issuers deliver to the Trustee an Opinion of Counsel in the United States
not unacceptable to the Trustee in its reasonable discretion confirming that the
Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such actions and will be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such actions had not occurred, then this
Indenture shall cease to be of further effect except for (i) the provisions set
forth in Article 2, Sections 4.2, 7.7 and 8.6 hereof and (ii) if the Notes have
been called for redemption and the redemption date has not occurred, the
Issuers' obligation to pay the redemption price on such redemption date. The
Trustee shall acknowledge satisfaction and discharge of this Indenture on demand
of the Issuers accompanied by an Officers' Certificate and an Opinion of Counsel
and at the cost and expense of the Issuers.
ARTICLE 9: AMENDMENTS
9.1 Without Consent of Holders.
The Partnership, Finance Corp. and the Trustee may amend this Indenture
or the Notes without the consent of any Holder of Notes:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(4) to add Guaranties with respect to the Notes;
(5) to provide security for the Notes;
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(6) to make any change that would provide additional rights or benefits
to the Holders of the Notes or that does not adversely affect the legal
rights hereunder and under the Registration Rights Agreement of any
Holder of the Notes; or
(7) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Upon the request of the Partnership and Finance Corp., accompanied by a
resolution of the Board of Directors of the General Partner on behalf of the
Partnership (or the Partnership, if the Partnership is a corporation) and the
Board of Directors of Finance Corp., authorizing the execution of any such
supplemental indenture or amendment, and upon receipt by the Trustee of the
documents described in Section 9.6 hereof required or requested by the Trustee,
the Trustee shall join with the Partnership and Finance Corp. in the execution
of any supplemental indenture or amendment authorized or permitted by the terms
of this Indenture and to make any further appropriate agreements and
stipulations which may be therein contained, but the Trustee shall not be
obligated to enter into such supplemental indenture or amendment which affects
its own rights, duties or immunities under this Indenture or otherwise.
9.2 With Consent of Holders.
The Partnership, Finance Corp. and the Trustee, as applicable, may
amend this Indenture or the Notes with the written consent of the Holders of at
least a majority in principal amount of the then outstanding Notes and, subject
to Sections 6.4 and 6.7 hereof, the Holders of a majority in principal amount of
the Notes then outstanding may waive compliance in a particular instance by the
Partnership or Finance Corp. with any provision of this Indenture or the Notes.
Upon the request of the Partnership and Finance Corp., accompanied by a
resolution of the Board of Directors of the General Partner on behalf of the
Partnership (or the Partnership, if the Partnership is a corporation) and the
Board of Directors of Finance Corp., authorizing the execution of any such
supplemental indenture, amendment or waiver, and upon the filing with the
Trustee of evidence satisfactory to the Trustee of the consent of the Holders of
Notes as aforesaid, and upon receipt by the Trustee of the documents described
in Section 9.6 hereof, the Trustee shall join with the Partnership and Finance
Corp. in the execution of such supplemental indenture or amendment unless such
supplemental indenture, amendment or waiver affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture, amendment or waiver.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed supplemental indenture,
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After a supplemental indenture, amendment or waiver under this Section
becomes effective, the Issuers shall mail to the Holders of each Note affected
thereby a notice briefly describing the supplemental indenture, amendment or
waiver. Any failure of the Issuers to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture, amendment or waiver. Without the consent of each Holder
of Notes affected, an amendment or waiver under this Section may not (with
respect to any Notes held by a non-consenting Holder of Notes):
(1) reduce the principal amount of Notes whose Holders must consent to
an amendment or waiver;
(2) reduce the rate of or change the time for payment of interest or
Liquidated Damages, if any, including default interest, on any Note;
(3) reduce the principal of or change the fixed maturity of any Note or
reduce the prices at which the Issuers shall offer to purchase such
Notes pursuant to Sections 3.9, 4.16 and 4.17 hereof, provided,
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however, that such Sections 3.9, 4.16 and 4.17 may otherwise be amended
or deleted in accordance with the requirements of this Section 9.2;
(4) make any Note payable in money other than that stated in the Note;
(5) make any change in Section 6.4 or 6.7 hereof or in this Section
9.2; or
(6) waive a Default in the payment of principal of or interest or
Liquidated Damages, if any, on, or redemption payment with respect to,
any Note (other than a Default in the payment of an amount due as a
result of an acceleration if the Holders of Notes rescind such
acceleration pursuant to Section 6.2).
9.3 Compliance with Trust Indenture Act.
If at the time of an amendment to this Indenture or the Notes, this
Indenture shall be qualified under the TIA, every amendment to this Indenture or
the Notes shall be set forth in a supplemental indenture that complies with the
TIA as then in effect.
9.4 Relocation and Effect of Consents.
Until a supplemental indenture, an amendment or waiver becomes
effective, a consent to it by a Holder of a Note is a continuing consent by the
Holder and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. A supplemental indenture, amendment or waiver becomes
effective in accordance with its terms and thereafter binds every Holder of
Notes.
The Issuers may fix a record date for determining which Holders must
consent to such supplemental indenture, amendment or waiver. If the Issuers fix
a record date, the record date shall be fixed at (I) the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee prior to such solicitation pursuant to Section
2.5, or (ii) such other date as the Issuers shall designate.
9.5 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about a supplemental
indenture, amendment or waiver on any Note thereafter authenticated. The Issuers
in exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment or waiver.
9.6 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, supplemental indenture or waiver
authorized pursuant to this Article 9 if the amendment, supplemental indenture
or waiver does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing or refusing to sign such amendment, supplemental indenture or waiver,
the Trustee shall be entitled to receive, if requested, an indemnity reasonably
satisfactory to it and to receive and, subject to Section 7.1, shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that such amendment, supplemental indenture or waiver is
authorized or permitted by this Indenture, that it is not inconsistent with this
Indenture, and that it will be valid and binding upon the Issuers in accordance
with its terms. Neither the Partnership nor Finance Corp. may sign an amendment,
supplemental indenture or waiver until the Board of Directors of the General
Partner on behalf of the Partnership (or the Partnership, if the Partnership is
a corporation) or the Board of Directors of Finance Corp. approves it.
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ARTICLE 10: MISCELLANEOUS
10.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties shall control. If
any provision of this Indenture modifies or excludes any provision of the TIA
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
10.2 Notices.
Any notice or communication by the Issuers or the Trustee to the others
is duly given if in writing and delivered in person or mailed by first-class
mail (registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' addresses:
If to the Issuers:
AmeriGas Partners, L.P.
AmeriGas Eagle Finance Corp.
P.O. Box 858
Valley Forge, Pennsylvania 19482
Attention: President
Telecopier No.: (610) 992-3254
or, in the case of couriers that can not deliver to post office boxes:
460 North Gulph Road
King of Prussia, Pennsylvania 19406
Attention: President
If to the Trustee:
First Union National Bank
123 South Broad Street
Philadelphia, Pennsylvania 19109
Attn: Corporate Trust Administration
Telecopier No.: (215) 670-6340
The Issuers or the Trustee by notice to the others may designate
additional or different addresses of subsequent notices or communications.
All notices and communications (other than those sent to Holders of
Notes) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder of Notes shall be mailed by
first-class mail, certified or registered, return receipt requested, to his
address shown on the register kept by the Registrar. Failure to mail a notice or
communication to a Holder of Notes or any defect in it shall not affect its
sufficiency with respect to other Holders of Notes. If a notice or communication
is mailed in the manner provided above within the time prescribed, it is duly
given, whether or not the addressee receives it.
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In case by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any event
as required by any provision of this Indenture, then any method of giving such
notice as shall be reasonably satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice.
If the Issuers mail a notice or communication to Holders of Notes, it
shall mail a copy to the Trustee and each Agent at the same time.
10.3 Communication by Holders with Other Holders.
Holders of Notes may communicate pursuant to TIA Section 312(b) with
other Holders of Notes with respect to their rights under this Indenture or the
Notes. The Issuers, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
10.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Partnership or Finance Corp. to
the Trustee to take any action under this Indenture, the Partnership or Finance
Corp. shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 10.5) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section
10.5) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been complied with;
provided, however, in the case of any such application or request as to which
the furnishing of such certificates and/or opinions is specifically required by
any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
10.5 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with; provided, however, that with
respect to matters of fact, an Opinion of Counsel may rely upon an Officers'
Certificate or a certificate of a public official.
10.6 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or
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that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer of the Issuers, may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Issuers stating
that the information with respect to such factual matters is in the possession
of the Issuers, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous. Opinions of Counsel
required to be delivered to the Trustee may have qualifications customary for
opinions of the type required and counsel delivering such Opinions of Counsel
may rely on certificates of the Company or government or other officials
customary for opinions of the type required, including certificates certifying
as to matters of fact, including that various financial covenants have been
complied with.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
10.7 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders of Notes. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
10.8 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in The City of New York, in the city in which the Corporate Trust
Office of the Trustee is located or at a place of payment are authorized or
obligated by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
10.9 No Recourse Against Others.
(a) No director, officer, employee, agent, manager, partner,
interest holder or stockholder of the Partnership or Finance Corp., as such,
shall have any liability for any obligations of the Partnership or Finance Corp.
under the Notes or this Indenture or for any claim based on, in respect of or by
reason of such obligations. Each Holder of Notes, by accepting a Note, waives
and releases all such liability. The waiver and release shall be part of the
consideration for the issuance of the Notes.
(b) The obligations of the Issuers under this Indenture and
the Notes will be non-recourse to the General Partner and the Operating
Partnership (and their respective affiliates (other than the Issuers)) and
payable only out of the cash flow and assets of the Issuers. The Trustee agrees,
and each Holder of a Note, by accepting a Note, will be deemed to have agreed in
this Indenture that neither the General Partner nor its assets nor the Operating
Partnership nor its assets (nor any of their respective affiliates (other than
the Issuers) nor their respective assets) shall be liable for any of the
obligations of the Issuers under this Indenture or the Notes. In addition,
neither the Partnership nor the Holders of Notes will have any right to require
the Operating Partnership to make distributions to the Partnership.
(c) Notwithstanding the foregoing, nothing in this provision
shall be construed as a waiver or release of any claims under the federal
securities laws.
10.10 Duplicate Originals.
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The parties may sign any number of copies of this Indenture. One signed
copy is enough to prove this Indenture.
10.11 Governing Law.
This Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.
10.12 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Partnership or Finance Corp. or their respective
Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
10.13 Successors.
All agreements of the Partnership and Finance Corp. in this Indenture
and the Notes shall bind their successors. All agreements of the Trustee in this
Indenture shall bind its successor.
10.14 Benefits of Indenture.
Nothing in this Indenture or in the Notes, expressed or implied, shall
give to any Person (other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
10.15 Severability.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
10.16 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
10.17 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
[signatures on following page]
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SIGNATURES
IN WITNESS WHEREOF, the undersigned have caused this Indenture to be
executed as of the date first above written.
AMERIGAS PARTNERS, L.P., by AmeriGas Propane, Inc.,
as General Partner
---------------------------------------------------
Name: Martha B. Lindsay
Title: Vice President and Chief Financial Officer
AMERIGAS EAGLE FINANCE CORP.
---------------------------------------------------
Name: Martha B. Lindsay
Title: Vice President and Chief Financial Officer
FIRST UNION NATIONAL BANK
---------------------------------------------------
Name:
Title:
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EXHIBIT A
[Face of Note]
AMERIGAS PARTNERS, L.P.
AMERIGAS EAGLE FINANCE CORP.
10% SERIES [C/D] SENIOR NOTE DUE 2006
No. $_____________________
CUSIP NO. [____________]
AmeriGas Partners, L.P., a Delaware limited partnership, and AmeriGas
Eagle Finance Corp., a Delaware corporation, jointly and severally, promise to
pay to __________________________ or registered assigns the principal sum of
____________________ Dollars on April 15, 2006
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Issuers have caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated:
[Seal] AMERIGAS PARTNERS, L.P.
By: AMERIGAS PROPANE, INC.,
its General Partner
By:
----------------------------
By:
----------------------------
Certificate of Authentication: AMERIGAS EAGLE FINANCE CORP.
First Union National Bank, as Trustee,
certifies that this is one of the
Global Notes referred to in the By:
within-mentioned Indenture. ----------------------------
By By:
---------------------------- ----------------------------
Authorized Signature
Additional provisions of this Note are set forth on the other side of
this Note.
A-1
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[Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole 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 Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. The Depository Trust Company shall act as the Depositary until a
successor shall be appointed by the Company and the Registrar. Unless this
certificate is presented by an authorized representative of The Depository Trust
Company (55 Water Street, New York, New York) ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as may be
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.](1)
[THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER: (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT HAS ACQUIRED THIS NOTE
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A) (1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (AN "IAI"), (2) AGREES THAT IT WILL NOT RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO AMERIGAS PARTNERS, L.P.,
AMERIGAS EAGLE FINANCE CORP. OR ANY OF THEIR RESPECTIVE SUBSIDIARIES,
(B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT, (D)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN
BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO AMERIGAS PARTNERS THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT], (F) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO AMERIGAS PARTNERS, L.P.)
OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3) 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. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S
UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING
THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING.](2)
- ----------
(1) This paragraph should be included only if the Note is issued in global form.
(2) This legend should only be included on Series C Notes.
A-2
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[Reverse of Note]
AMERIGAS PARTNERS, L.P.
AMERIGAS EAGLE FINANCE CORP.
10% SERIES [C/D] SENIOR NOTE DUE 2006
1. Interest. AmeriGas Partners, L.P., a Delaware limited partnership
(the "Partnership"), and AmeriGas Eagle Finance Corp., a Delaware corporation
("Finance Corp." and, together with the Partnership, the "Issuers"), jointly and
severally promise to pay interest on the principal amount of this Note at
[______]% per annum from [______], 2001 until maturity and to pay Liquidated
Damages payable pursuant to Section 5 of the Registration Rights Agreement
referred to below. The Issuers will pay interest and Liquidated Damages, if any,
semiannually on April 15 and October 15 of each year (each an "Interest Payment
Date"), or if any such day is not a Business Day, on the next succeeding
Business Day. Interest on the Notes will accrue from the most recent Interest
Payment Date on which interest has been paid or, if no interest has been paid,
from [______], 2001; provided, that if there is no existing Default in the
payment of interest, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be October 15, 2001. The
Issuers shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand at a rate that is 1% per annum in excess of the interest rate
then in effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Issuers will pay interest on the Notes
(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Notes at the close of business on the record date
immediately preceding the Interest Payment Date, except as provided in Section
2.12 of the Indenture with respect to defaulted interest. The Notes will be
payable as to principal, premium, interest and Liquidated Damages, if any, at
the office or agency of the Issuers maintained for such purpose within or
without the City and State of New York, or, at the option of the Issuers,
payment of interest and Liquidated Damages, if any, may be made by check mailed
to the Holders at their respective addresses set forth in the register of
Holders; provided that payment by wire transfer of immediately available/same
day funds will be required with respect to principal of and interest, premium
and Liquidated Damages, if any, on, all Global Notes. Such payment shall be 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.
3. Paying Agent and Registrar. Initially, the Trustee will act as
Paying Agent and Registrar. The Issuers may change any Paying Agent, Registrar
or co-registrar without notice. The Issuers or any of their Subsidiaries may act
as Paying Agent or Registrar.
4. Indenture. The Issuers issued the Notes under an Indenture, dated
April 4, 2001 (the "Indenture"), among the Issuers and the Trustee. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S. Code Sections 77aaa-77bbb) as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Notes are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Notes are unsecured senior general obligations of
the Issuers. Subject to compliance with Section 4.8 and the other terms of the
Indenture, the Issuers are permitted to issue more notes after the Issue Date
under the Indenture in an unlimited amount (the "Additional Notes"). The
Additional Notes subsequently issued under the Indenture shall be treated as a
single class for all purposes under the Indenture, including, without
limitation, waivers, amendments, redemptions and offers to purchase.
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5. Redemption. The Notes are not subject to redemption at the option of
the Issuers. The Issuers are required to offer to purchase the Notes under
certain circumstances pursuant to Sections 3.9, 4.16 and 4.17 of the Indenture.
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6. Notice of Redemption. Notice of redemption will be mailed to the
Holder's registered address at least 30 days but not more than 60 days before
the redemption date to each Holder of Notes to be redeemed. If less than all
Notes are to be redeemed, the Trustee shall select the Notes to be redeemed in
multiples of $1,000. Notes in denominations larger than $1,000 may be redeemed
in part. On and after the redemption date interest ceases to accrue on Notes or
portions of them called for redemption (unless the Issuers shall default in the
payment of the redemption price or accrued interest).
7. Change of Control. In the event of a Change of Control of the
Partnership, the Issuers shall be required to make an offer to purchase all or
any portion of each Holder's Notes, at 101% of the principal amount thereof,
plus accrued interest to the Change of Control Payment Date.
8. Asset Sale Offer. In the event of certain Asset Sales, the Issuers
may be required to make an Asset Sale Offer to purchase all or any portion of
each Holder's Notes, at 100% of the principal amount of the Notes plus accrued
interest to the Purchase Date.
9. Restrictive Covenants. The Indenture imposes certain limitations on,
among other things, the ability of the Partnership and Finance to merge or
consolidate with any other Person or sell, lease or otherwise transfer all or
substantially all of their respective properties or assets, the ability of the
Partnership or its Restricted Subsidiaries to dispose of certain assets, to pay
dividends and make certain other distributions and payments, to make certain
investments or redeem, retire, repurchase or acquire for value shares of Capital
Stock, to incur additional Indebtedness or incur encumbrances against certain
property and to enter into certain transactions with Affiliates, all subject to
certain limitations described in the Indenture.
10. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not transfer or exchange
any Notes selected for redemption. Also, it need not transfer or exchange any
Notes for a period of 15 days before a selection of Notes to be redeemed.
11. Persons Deemed Owners. The registered Holder of a Note may be
treated as the owner of it for all purposes and neither the Issuers, the Trustee
nor any Agent shall be affected by notice to the contrary.
12. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for one year, the Trustee or Paying Agent will pay the money
back to the Issuers at its request. After that, all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
13. Amendment, Supplement, Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Notes, and any past
default or noncompliance with any provision may be waived with the consent of
the Holders of a majority in principal amount of the Notes. Without the consent
of any Holder, the Issuers may amend or supplement the Indenture or the Notes
to, among other things, cure any ambiguity, defect or inconsistency or to
provide for uncertificated Notes in addition to certificated Notes or to make
any change that does not adversely affect the rights of any Holder.
14. Defaults and Remedies. An event of default generally is: default by
the Issuers for 30 days in payment of interest on the Notes; default by the
Issuers in payment of principal of or premium, if any, on the Notes; defaults
resulting in acceleration prior to maturity of certain other Indebtedness or
resulting from payment defaults under certain other Indebtedness; failure by the
Issuers for 45 days after notice to comply with any of its other agreements in
the Indenture; certain final judgments against the Issuers; and certain events
of bankruptcy or insolvency. Subject to certain limitations in the Indenture, if
an Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately, except that in the case of an Event of
Default arising from certain events of
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bankruptcy, insolvency or reorganization relating to either of the Issuers or
their Significant Subsidiaries, all outstanding Notes shall become due and
payable immediately without further action or notice. Holders may not enforce
the Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of a majority in principal amount
of the Notes may direct the Trustee in its exercise of any trust or power. The
Issuers must furnish an annual compliance certificate to the Trustee.
15. Trustee Dealings with Issuers. First Union National Bank, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with the Issuers or their
respective Subsidiaries or Affiliates with the same rights it would have if it
were not Trustee.
16. No Recourse Against Others. A director, officer, employee, agent,
manager, interest holder or stockholder, as such, of the Issuers, shall not have
any liability for any obligations of the Issuers under the Notes or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
The obligations of the Issuers under the Indenture and the Notes will
be non-recourse to the General Partner and the Operating Partnership (and their
respective Affiliates (other than the Issuers)), and payable only out of the
cash flow and assets of the Issuers. The Trustee has, and each Holder of a Note,
by accepting a Note will be deemed to have, agreed in the Indenture that neither
the General Partner nor its assets nor the Operating Partnership nor its assets
(nor any of their respective affiliates (other than the Issuers)) nor their
respective assets, shall be liable for any of the obligations of the Issuers
under the Indenture or the Notes. In addition, neither the Partnership nor the
Holders of Notes will have any right to require the Operating Partnership to
make distributions to the Partnership.
17. Authentication. This Note shall not be valid until the Trustee or
an authenticating agent signs the certificate of authentication on the other
side of this Note.
18. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants
by the entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform Gifts to Minors
Act).
19. Additional Rights of Holders of Transfer Restricted Notes. In
addition to the rights provided by Holders of Notes under the Indenture, Holders
of Transfer Restricted Notes shall have all the rights set forth in the
Registration Rights Agreement, dated as of the Issue Date (the "Registration
Rights Agreement"), among the Issuers and the Initial Purchasers.
20. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Securities Identification Procedures, the Issuers will
cause CUSIP numbers to be printed on the Notes as a convenience to Holder of the
Notes. No representation is made as to the accuracy of such numbers as printed
on the Notes and reliance may be placed only on the other identification numbers
printed hereon.
The Issuers will furnish to any Holder upon written request and without
charge a copy of the Indenture or Registration Rights Agreement. Requests may be
made to: AmeriGas Partners, L.P., 460 North Gulph Road, King of Prussia,
Pennsylvania 19406, Attention: Secretary.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
________________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _________________________________________________ as
agent to transfer this Note on the books of the Issuers. The agent may
substitute another to act for him.
________________________________________________________________________________
Your Signature: ____________________________________________________________
(Sign exactly as your name appears on the other side of this
Note)
Date: __________________________________
Signature Guarantee:_________________________
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FORM OF OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers
pursuant to Section 4.16 or Section 4.17 of the Indenture, check the appropriate
box:
Section 4.16 [ ] Section 4.17 [ ]
If you want to have only part of this Note purchased by the Issuers
pursuant to Section 4.16 or Section 4.17 of the Indenture, state the amount (in
integral multiples of $1,000):
$ _____________
Date:_____________ Signature:_______________________________________________
(Sign exactly as your name appears on the other
side of this Note)
Signature Guarantee: __________________________
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SCHEDULE OF EXCHANGES OF DEFINITIVE NOTE*
The following exchanges of a part of this Global Note for Definitive Notes have
been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized officer
Principal Amount of Principal Amount of following such of Trustee or Note
Date of Exchange this Global Note this Global Note decrease (or increase) Custodian
- ---------------- ---------------- ---------------- ---------------------- ---------
- ----------
* This should be included only if the Note is issued in global form.
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EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF NOTES
Re: 10% Series [C/D] Senior Notes due 2006 of AmeriGas Partners, L.P. and
AmeriGas Eagle Finance Corp.
This Certificate relates to $_____ principal amount of Notes held in *
_______ book-entry or * ______ definitive form by _________________ (the
"Transferor").
The Transferor *:
? has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Note held by the Depositary a Note or
Notes in definitive, registered form equal to its beneficial interest in
such Global Note (or the portion thereof indicated above); or
? has requested the Trustee by written order to exchange or register the
transfer of a Note or Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that the Transferor is familiar with the
Indenture relative to the above captioned Notes and that the transfer of
this Note does not require registration under the Securities Act (as
defined below) because:*
? Such Note is being acquired for the Transferor's own account without
transfer (in satisfaction of Section 2.6(a)(ii)(A) or Section
2.6(d)(i)(A) of the Indenture).
? Such Note is being transferred (i) to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act of 1933, as amended
(the "Securities Act")), in reliance on Rule 144A or (ii) pursuant to an
exemption from registration in accordance with Rule 904 under the
Securities Act (and in the case of clause (ii), based on an opinion of
counsel if the Issuers so request and together with a certification in
substantially the form of Exhibit D to the Indenture).
? Such Note is being transferred (i) in accordance with Rule 144 under the
Securities Act (and based on an opinion of counsel if the Issuers so
request) or (ii) pursuant to an effective registration statement under
the Securities Act.
? Such Note is being transferred to an institutional accredited investor
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act pursuant to a private placement exemption from the
registration requirements of the Securities Act (and based on an opinion
of counsel if the Issuers so request) together with a certification in
substantially the form of Exhibit C to the Indenture.
? Such Note is being transferred in reliance on and in compliance with
another exemption from the registration requirements of the Securities
Act (and based on an opinion of counsel if the Issuers so request).
- ----------
* Check applicable box.
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-------------------------------
[INSERT NAME OF TRANSFEROR]
By:
---------------------------
Name:
Title:
Address:
Date: _______________ ___, ______
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EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED BY ACCREDITED INSTITUTIONS
____________ ___, ____
__________________, as Registrar
Attention: Corporate Trust Department
Ladies and Gentlemen:
We are delivering this letter in connection with an offering of 10%
Senior Notes due 2006 (the "Notes") of AmeriGas Partners, L.P., a Delaware
limited partnership (the "Partnership"), and AmeriGas Eagle Finance Corp., a
Delaware corporation (together with the Partnership, the "Issuers"), all as
described in the Offering Memorandum relating to the Offering.
We hereby confirm that:
we are an "accredited investor" within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act (an "Institutional Accredited
Investor"), or an entity in which all of the equity owners are Institutional
Accredited Investors;
(i) any purchase of Notes will be for our own account or for
the account of one or more other Institutional Accredited Investors as
to which we exercise sole investment discretion;
(ii) in the event that we purchase any Notes, we will acquire
such securities having a minimum purchase price of at least $100,000
for our own account and for each separate account for which we are
acting;
(iii) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks
of purchasing Notes and we and any accounts for which we are acting are
able to bear the economic risks of our or their investment;
(iv) we are not acquiring Notes with a view to any
distribution thereof in a transaction that would violate the Securities
Act or the securities laws of any State of the United States or any
other applicable jurisdiction; provided that the disposition of our
property and the property of any accounts for which we are acting as
fiduciary shall remain at all times within our control; and
(v) we acknowledge that we have had access to such financial
and other information, and have been afforded the opportunity to ask
such questions of representatives of the Issuers and receive answers
thereto, as we deem necessary in connection with out decision to
purchase Notes.
We understand that the Notes have not been registered under
the Securities Act, and we agree, on our own behalf and on behalf of each
account for which we acquire any Notes, that such Notes may be offered, resold,
pledged or otherwise transferred only (i) to a person whom we reasonably believe
to be a qualified institutional buyer (as defined in Rule 144A under the
Securities Act) in a transaction meeting the requirements of Rule 144A, in a
transaction meeting the requirements of Rule 144 under the Securities Act,
outside the United States to a foreign person in a transaction meeting the
requirements of Rule 904
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under the Securities Act or in accordance with another exemption from the
registration requirements of the Securities Act (and, unless such transfer
occurs in a transaction meeting the requirements of Rule 144A, based upon an
opinion of counsel if the Issuers so request), (ii) to the Issuers or (iii)
pursuant to an effective registration statement, and, in each case, in
accordance with any applicable securities laws of any State of the United States
or any other applicable jurisdiction. We understand that the Registrar will not
be required to accept for registration of transfer any Notes, except upon
presentation of evidence satisfactory to the Partnership that the foregoing
restrictions on transfer have been complied with. We further understand that the
Notes purchased by us will be in the form of definitive physical certificates
and that such certificates will bear a legend reflecting the substance of this
paragraph. We further agree to provide to any person acquiring any of the Notes
from us a notice advising such person that resales of the Notes are restricted
as stated herein.
We acknowledge that Credit Suisse First Boston Corporation, Banc of
America Securities LLC, the Issuers and others will rely upon our confirmations,
acknowledgements and agreements set forth herein, and we agree to notify you
promptly in writing if any of our representations or warranties herein ceases to
be accurate and complete.
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THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
Very truly yours,
-----------------------------------
[Name]
By:
--------------------------------
Name:
Title:
Address:
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EXHIBIT D
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
__________, _____
________ _________, as Registrar
Attention: Corporate Trust Department
Ladies and Gentlemen:
In connection with our proposed sale of certain 10% Series [C/D] Senior
Notes due 2006 (the "Notes") of AmeriGas Partners, L.P., a Delaware limited
partnership (the "Partnership"), and AmeriGas Eagle Finance Corp., a Delaware
corporation (together with the Partnership, the "Issuers"), we represent that:
1. the offer of the Notes was not made to a person in the United States;
2. at the time the buy order was originated, the transferee was outside
the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States;
3. no directed selling efforts have been made by us in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
4. the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You and the Issuers are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
___________________________________
[Name of Transferor]
By:________________________________
Name:
Title:
Address:
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