EXECUTION COPY
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SUBURBAN PROPANE PARTNERS, L.P.
and
SUBURBAN ENERGY FINANCE CORP.,
as Issuers
6.875% SENIOR NOTES DUE 2013
-----------------------------
INDENTURE
Dated as of December 23, 2003
-----------------------------
-----------------------------
THE BANK OF NEW YORK
Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)............................................. 7.10
(a)(2)............................................. 7.10
(a)(3)............................................. N.A.
(a)(4)............................................. N.A.
(a)(5)............................................. 7.10
(b)................................................ 7.10
(c)................................................ N.A.
311(a)................................................ 7.11
(b)................................................ 7.11
(c)................................................ N.A.
312(a)................................................ 2.05
(b)................................................ 12.03
(c)................................................ 12.03
313(a)................................................ 7.06
(b)(1)............................................. N.A.
(b)(2)............................................. 7.06; 7.07
(c)................................................ 7.06; 12.02
(d)................................................ 7.06
314(a)................................................ 4.03;12.02; 12.05
(b)................................................ N.A.
(c)(1)............................................. 12.04
(c)(2)............................................. 12.04
(c)(3)............................................. N.A.
(d)................................................ N.A.
(e)................................................ 12.05
(f)................................................ N.A.
315(a)................................................ 7.01
(b)................................................ 7.05,12.02
(c)................................................ 7.01
(d)................................................ 7.01
(e)................................................ 6.11
316(a) (last sentence)................................ 2.09
(a)(1)(A).......................................... 6.05
(a)(1)(B).......................................... 6.04
(a)(2)............................................. N.A.
(b)................................................ 6.07
(c)................................................ 2.12
317(a)(1)............................................. 6.08
(a)(2)............................................. 6.09
(b)................................................ 2.04
318(a)................................................ 12.01
(b)................................................ N.A.
(c)................................................ 12.01
N.A. means not applicable.
* This Cross Reference Table is not part of this Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions........................................................................1
Section 1.02 Other Definitions.................................................................21
Section 1.03 Incorporation by Reference of Trust Indenture Act.................................22
Section 1.04 Rules of Construction.............................................................22
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating...................................................................23
Section 2.02 Execution and Authentication......................................................24
Section 2.03 Registrar and Paying Agent........................................................24
Section 2.04 Paying Agent to Hold Money in Trust...............................................25
Section 2.05 Holder Lists......................................................................25
Section 2.06 Transfer and Exchange.............................................................25
Section 2.07 Replacement Notes.................................................................37
Section 2.08 Outstanding Notes.................................................................37
Section 2.09 Treasury Notes....................................................................37
Section 2.10 Temporary Notes...................................................................38
Section 2.11 Cancellation......................................................................38
Section 2.12 Defaulted Interest................................................................38
Section 2.13 Persons Deemed Owners.............................................................38
Section 2.14 CUSIP Numbers.....................................................................38
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee................................................................39
Section 3.02 Selection of Notes to Be Redeemed or Purchased....................................39
Section 3.03 Notice of Redemption..............................................................40
Section 3.04 Effect of Notice of Redemption....................................................40
Section 3.05 Deposit of Redemption or Purchase Price...........................................40
Section 3.06 Notes Redeemed or Purchased in Part...............................................41
Section 3.07 Optional Redemption...............................................................41
Section 3.08 Mandatory Redemption..............................................................42
Section 3.09 [Reserved]........................................................................42
Section 3.10 Offer to Purchase by Application of Excess Proceeds...............................42
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes..................................................................43
Section 4.02 Maintenance of Office or Agency...................................................44
Section 4.03 Reports...........................................................................44
Section 4.04 Compliance Certificate............................................................45
Section 4.05 Taxes.............................................................................46
Section 4.06 Stay, Extension and Usury Laws....................................................46
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Section 4.07 Restricted Payments...............................................................46
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries....................48
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock........................49
Section 4.10 Asset Sales.......................................................................52
Section 4.11 Transactions with Affiliates......................................................54
Section 4.12 Liens.............................................................................55
Section 4.13 Business Activities...............................................................55
Section 4.14 Corporate Existence...............................................................55
Section 4.15 Offer to Repurchase Upon Change of Control........................................55
Section 4.16 Limitation on Sale and Leaseback Transactions.....................................57
Section 4.17 Limitation on Issuances of Guarantees of Indebtedness.............................57
Section 4.18 Payments for Consent..............................................................58
Section 4.19 Existence of Corporate Co-Issuer..................................................58
Section 4.20 Designation of Restricted and Unrestricted Subsidiaries...........................58
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets..........................................59
Section 5.02 Successor Corporation Substituted.................................................60
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.................................................................60
Section 6.02 Acceleration......................................................................61
Section 6.03 Other Remedies....................................................................62
Section 6.04 Waiver of Past Defaults...........................................................62
Section 6.05 Control by Majority...............................................................63
Section 6.06 Limitation on Suits...............................................................63
Section 6.07 Rights of Holders of Notes to Receive Payment.....................................63
Section 6.08 Collection Suit by Trustee........................................................63
Section 6.09 Trustee May File Proofs of Claim..................................................63
Section 6.10 Priorities........................................................................64
Section 6.11 Undertaking for Costs.............................................................64
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.................................................................65
Section 7.02 Rights of Trustee.................................................................66
Section 7.03 Individual Rights of Trustee......................................................66
Section 7.04 Trustee's Disclaimer..............................................................67
Section 7.05 Notice of Defaults................................................................67
Section 7.06 Reports by Trustee to Holders of the Notes........................................67
Section 7.07 Compensation and Indemnity........................................................67
Section 7.08 Replacement of Trustee............................................................68
Section 7.09 Successor Trustee by Merger, etc..................................................69
Section 7.10 Eligibility; Disqualification.....................................................69
Section 7.11 Preferential Collection of Claims Against Suburban Propane........................69
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance..........................69
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Section 8.02 Legal Defeasance and Discharge....................................................70
Section 8.03 Covenant Defeasance...............................................................70
Section 8.04 Conditions to Legal or Covenant Defeasance........................................71
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions....................................................72
Section 8.06 Repayment to Suburban Propane.....................................................72
Section 8.07 Reinstatement.....................................................................73
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes...............................................73
Section 9.02 With Consent of Holders of Notes..................................................74
Section 9.03 Compliance with Trust Indenture Act...............................................75
Section 9.04 Revocation and Effect of Consents.................................................75
Section 9.05 Notation on or Exchange of Notes..................................................75
Section 9.06 Trustee to Sign Amendments, etc...................................................76
ARTICLE 10.
SUBSIDIARY GUARANTEES
Section 10.01 Guarantee.........................................................................76
Section 10.02 Limitation on Guarantor Liability.................................................77
Section 10.03 Execution and Delivery of Subsidiary Guarantee....................................77
Section 10.04 Guarantors May Consolidate, etc., on Certain Terms................................78
Section 10.05 Releases..........................................................................78
ARTICLE 11.
satisfaction and discharge
Section 11.01 Satisfaction and Discharge........................................................79
Section 11.02 Application of Trust Money........................................................80
ARTICLE 12.
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls......................................................80
Section 12.02 Notices...........................................................................80
Section 12.03 Communication by Holders of Notes with Other Holders of Notes.....................81
Section 12.04 Certificate and Opinion as to Conditions Precedent................................82
Section 12.05 Statements Required in Certificate or Opinion.....................................82
Section 12.06 Rules by Trustee and Agents.......................................................82
Section 12.07 No Personal Liability of Limited Partners, Officers, Employees and Unitholders....82
Section 12.08 Non-Recourse......................................................................82
Section 12.09 Governing Law.....................................................................83
Section 12.10 No Adverse Interpretation of Other Agreements.....................................83
Section 12.11 Successors........................................................................83
Section 12.12 Severability......................................................................83
Section 12.13 Counterpart Originals.............................................................83
Section 12.14 Table of Contents, Headings, etc..................................................83
EXHIBITS
Exhibit A1 FORM OF NOTE
Exhibit A2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE
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Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF SUBSIDIARY GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
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INDENTURE dated as of December 23, 2003 among Suburban Propane
Partners, L.P., a Delaware limited partnership ("Suburban Propane"), Suburban
Energy Finance Corp., a Delaware corporation ("Finance Corp." and, together with
Suburban Propane, the "Issuers") and The Bank of New York, a New York banking
corporation, as trustee (the "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 (as defined) of the
6.875% Senior Notes due 2013 (the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form of
Exhibit A1 hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such
other Person is merged with or into or became a Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging with
or into, or becoming a Restricted Subsidiary of, such specified Person;
and
(2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"Additional Notes" means an unlimited aggregate principal amount of
additional Notes (other than the Initial Notes) issued under this Indenture in
accordance with Sections 2.02 and 4.09 hereof, as part of the same series as the
Initial Notes.
"Acquisition" means the acquisition by the Operating Partnership of all
or substantially all of the assets of Agway Energy pursuant to the Asset
Purchase Agreement, dated as of November 7, 2003, by and among the Operating
Partnership and Agway Energy Products, LLC, Agway Energy Services, Inc. and
Agway Energy Services PA, Inc.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person will be deemed to be control. A Person shall not be
deemed an "Affiliate" of Suburban Propane or any of its Restricted Subsidiaries
solely as a result of such Person being a joint venture partner of Suburban
Propane or any of its Restricted Subsidiaries. For purposes of this definition,
the terms "controlling," "controlled by" and "under common control with" have
correlative meanings.
"Agent" means any Registrar, co-registrar, Paying Agent or additional
paying agent.
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"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary, Euroclear and Clearstream that apply to such transfer or
exchange.
"Asset Acquisition" means the following:
(1) an Investment by Suburban Propane or any Restricted
Subsidiary of Suburban Propane in any other Person pursuant to which
the Person shall become a Restricted Subsidiary of Suburban Propane, or
shall be merged with or into Suburban Propane or any Restricted
Subsidiary of Suburban Propane;
(2) the acquisition by Suburban Propane or any Restricted
Subsidiary of Suburban Propane of the assets of any Person, other than
a Restricted Subsidiary of Suburban Propane, which constitute all or
substantially all of the assets of such Person; or
(3) the acquisition by Suburban Propane or any Restricted
Subsidiary of Suburban Propane of any division or line of business of
any Person, other than a Restricted Subsidiary of Suburban Propane.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any
assets or rights; provided that the sale, conveyance or other
disposition of all or substantially all of the assets of Suburban
Propane and its Restricted Subsidiaries taken as a whole will be
governed by the provisions of Section 4.15 hereof and/or the provisions
of Section 5.01 hereof and not by Section 4.10 hereof; and
(2) the issuance of Equity Interests in any of Suburban
Propane's Restricted Subsidiaries or the sale of Equity Interests in
any of its Restricted Subsidiaries.
Notwithstanding the preceding, none of the following items will be
deemed to be an Asset Sale:
(1) any single transaction or series of related transactions
that involves assets having a Fair Market Value of less than $1.0
million;
(2) a transfer of assets between or among Suburban Propane and
its Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary
of Suburban Propane to Suburban Propane or to a Restricted Subsidiary
of Suburban Propane;
(4) the sale or lease of inventory, products, services,
accounts receivable or other current assets in the ordinary course of
business and any sale or other disposition of damaged, worn-out or
obsolete assets in the ordinary course of business;
(5) the good faith surrender or waiver of contract rights or
the settlement, release or surrender of claims of any kind, not to
exceed the Fair Market Value of $5.0 million in the aggregate from the
date of this Indenture;
(6) the sale or other disposition of cash or Cash Equivalents;
and
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(7) a Restricted Payment that does not violate section 4.07
hereof or a Permitted Investment.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such sale and leaseback transaction including any period for which such lease
has been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP; provided,
however, that if such sale and leaseback transaction results in a Capital Lease
Obligation, the amount of Indebtedness represented thereby will be determined in
accordance with the definition of "Capital Lease Obligation."
"Available Cash" as to any quarter means:
(1) the sum of:
(a) all cash receipts of Suburban Propane during such
quarter from all sources other than Asset Sales (including,
without limitation, distributions of cash received from the
Operating Partnership and cash proceeds received by or
distributed to Suburban Propane from Interim Capital
Transactions, but excluding cash proceeds from Termination
Capital Transactions); and
(b) any reduction with respect to such quarter in a
cash reserve previously established pursuant to clause (2)(b)
below (either by reversal or utilization) from the level of
such reserve at the end of the prior quarter;
(2) less the sum of:
(a) all cash disbursements of Suburban Propane during
such quarter, including, without limitation, disbursements for
operating expenses, taxes, if any, debt service (including,
without limitation, the payment of principal, premium and
interest), redemption of Capital Stock of Suburban Propane
(including Common Units), capital expenditures, contributions,
if any, to the Operating Partnership and cash distributions to
partners of Suburban Propane (but only to the extent that such
cash distributions to partners exceed Available Cash for the
immediately preceding quarter); and
(b) any cash reserves established with respect to
such quarter, and any increase with respect to such quarter in
a cash reserve previously established pursuant to this clause
(2)(b) from the level of such reserve at the end of the prior
quarter, in such amounts as the general partner of Suburban
Propane determines in its reasonable discretion to be
necessary or appropriate (1) to provide for the proper conduct
of the business of Suburban Propane or the Operating
Partnership (including, without limitation, reserves for
future capital expenditures), (2) to provide funds for
distributions with respect to Capital Stock of Suburban
Propane in respect of any one or more of the next four
quarters or (3) because the distribution of such amounts would
be prohibited by applicable law or by any loan agreement,
security agreement, mortgage, debt instrument or other
agreement or obligation to which Suburban Propane is a party
or by which it is bound or its assets are subject;
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(3) plus the aggregate maximum amount of working capital
Indebtedness available to Suburban Propane or its Restricted
Subsidiaries under Credit Facilities on the date of such Restricted
Payment.
Notwithstanding the foregoing, "Available Cash" shall not include any cash
receipts or reductions in reserves or take into account any disbursements made
or reserves established in each case after the date of liquidation of Suburban
Propane. Taxes paid by Suburban Propane on behalf of, or amounts withheld with
respect to, all or less than all of the partners shall not be considered cash
disbursements of Suburban Propane that reduce Available Cash, but the payment or
withholding thereof shall be deemed to be a distribution of Available Cash to
the partners. Alternatively, in the discretion of the Board of Supervisors of
Suburban Propane, such taxes (if pertaining to all partners) may be considered
to be cash disbursements of Suburban Propane which reduce Available Cash, but
the payment or withholding thereof shall not be deemed to be a distribution of
Available Cash to such partners.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" will be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only after the passage of time. The terms "Beneficially Owns" and
"Beneficially Owned" have a corresponding meaning.
"Board of Supervisors" means:
(1) with respect to a corporation, the board of directors of
the corporation or any committee thereof duly authorized to act on
behalf of such board;
(2) with respect to a partnership, the board of directors of
the general partner of the partnership; provided that in the case of
Suburban Propane, it means the board of supervisors of Suburban
Propane;
(3) with respect to a limited liability company, the managing
member or members or any controlling committee of managing members
thereof; and
(4) with respect to any other Person, the board or committee
of such Person serving a similar function.
"Borrowing Base" means, as of any date, an amount equal to:
(1) 85% of the face amount of all accounts receivable (net of
reserves) owned by Suburban Propane and its Restricted Subsidiaries as
of the end of the most recent fiscal quarter preceding such date that
were not more than 60 days past due; plus
(2) 60% of the book value of all inventory (net of reserves)
owned by Suburban Propane and its Restricted Subsidiaries as of the end
of the most recent fiscal quarter preceding such date.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Business Day" means any day other than a Legal Holiday.
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"Capital Lease Obligation" means, at the time any determination is to
be made, the amount of the liability in respect of a capital lease that would at
that time be required to be capitalized on a balance sheet in accordance with
GAAP, and the Stated Maturity thereof shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date upon which
such lease may be prepaid by the lessee without payment of a penalty.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership interests (whether general or limited), membership
interests, units, incentive distribution rights or any similar equity
right to distributions; and
(4) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person, but excluding from all
of the foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of participation
with Capital Stock.
"Cash Equivalents" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support of those securities) having
maturities of not more than one year from the date of acquisition;
(3) marketable direct obligations issued by any state of the
United States 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 and its successors or Moody's and its
successors;
(4) commercial paper having one of the two highest ratings
obtainable from S&P or Moody's and in each case maturing within 270
days after the date of creation;
(5) 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 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; and
(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 (such
commercial banks, "Permitted Banks");
5
(6) eurodollar time deposits having a maturity of less than
270 days from the date of acquisition thereof purchased directly from
any Permitted Bank;
(7) bankers' acceptances eligible for rediscount under
requirements of the Board of Governors of the Federal Reserve System
and accepted by Permitted Banks;
(8) obligations of the type described in clauses (1) through
(7) 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 Suburban
Propane or one of its Restricted Subsidiaries by a custodian which is a
Permitted Bank and which is not a counterparty to the repurchase
agreement in question; and
(9) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1)
through (8) of this definition.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the
properties or assets of Suburban Propane and its Subsidiaries taken as
a whole to any "person" (as that term is used in Section 13(d) of the
Exchange Act) other than a Principal or a Related Party of a Principal;
(2) the adoption of a plan relating to the liquidation or
dissolution of Suburban Propane or its general partner;
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that
any "person" (as defined above), other than the Principals and their
Related Parties, becomes the Beneficial Owner, directly or indirectly,
of more than 50% of the Voting Stock of the general partner of Suburban
Propane, measured by voting power rather than number of units or
shares;
(4) Suburban Energy Services Group LLC ceases to be the
general partner of Suburban Propane;
(5) Suburban Propane consolidates with, or merges with or
into, any Person (other than the Principals and their Related Parties),
or any Person (other than the Principals and their Related Parties)
consolidates with, or merges with or into, Suburban Propane, other than
any such transaction where the Voting Stock of Suburban Propane
outstanding immediately prior to such transaction constitutes, or is
converted into or exchanged for Voting Stock (other than Disqualified
Stock) of the surviving or transferee Person constituting, a majority
of the outstanding shares of such Voting Stock of such surviving or
transferee Person (immediately after giving effect to such issuance);
(6) the first day on which a majority of the members of the
Board of Supervisors of Suburban Propane are not Continuing Directors;
and
(7) the first day on which Suburban Propane fails to own,
directly or indirectly, 100% of the issued and outstanding Equity
Interests of Finance Corp.
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"Clearstream" means Clearstream Banking, S.A.
"Commission" means the Securities and Exchange Commission.
"Common Units" means the units representing limited partner interests
of Suburban Propane, having the rights and obligations specified with respect to
common units of Suburban Propane.
"Consolidated Cash Flow Available for Fixed Charges" means, with
respect to Suburban Propane and its Restricted Subsidiaries for any period, the
sum of, without duplication, the following amounts for that period, taken as a
single accounting period:
(1) Consolidated Net Income;
(2) Consolidated Non-Cash Charges (to the extent Consolidated
Net Income was reduced thereby);
(3) Consolidated Interest Expense (to the extent Consolidated
Net Income was reduced thereby); and
(4) Consolidated Income Tax Expense (to the extent
Consolidated Net Income was reduced thereby).
"Consolidated Fixed Charge Coverage Ratio" means, with respect to
Suburban Propane and its Restricted Subsidiaries, the ratio of (a) the aggregate
amount of Consolidated Cash Flow Available for Fixed Charges of Suburban Propane
and its Restricted Subsidiaries for the four full fiscal quarters for which
internal financial statements are available immediately preceding the date of
the transaction (the "Transaction Date") giving rise to the need to calculate
the Consolidated Fixed Charge Coverage Ratio (the "Four Quarter Period"), to (b)
the aggregate amount of Consolidated Fixed Charges of Suburban Propane and its
Restricted Subsidiaries 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 (in accordance with
Regulation S-X under the Securities Act) for the period of the calculation to,
without duplication:
(1) the incurrence or repayment of any Indebtedness,
Disqualified Stock or Preferred Stock, excluding revolving credit
borrowings and repayments of revolving credit borrowings (other than
any revolving credit borrowings the proceeds of which are used for
Asset Acquisitions or Growth Related Capital Expenditures of Suburban
Propane 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 the calculation (and the application of the net
proceeds thereof), as if the incurrence (and application) occurred on
the first day of the Reference Period; and
(2) any Asset Sales or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make the
calculation as a result of Suburban Propane 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 Debt) occurring during the Reference Period,
as if the Asset Sale or Asset Acquisition occurred on the first day of
the Reference Period; provided, however, that:
7
(a) any Person that is a Restricted Subsidiary on the
Transaction Date will be deemed to have been a Restricted Subsidiary at
all times during the Reference Period; and
(b) any Person that is an Unrestricted Subsidiary on
the Transaction Date will be deemed to have been an Unrestricted
Subsidiary at all times during the Reference Period.
Furthermore, subject to the following paragraph, in calculating
"Consolidated Fixed Charges" for purposes of determining the "Consolidated Fixed
Charge Coverage Ratio":
(1) interest on outstanding Indebtedness, other than
Indebtedness referred to in clause (2) below, determined on a
fluctuating basis as of the Transaction Date and that 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 that date;
(2) with respect to Indebtedness incurred in accordance with
clause (1) of the definition of Permitted Debt, only actual interest
payments associated with such Indebtedness during the Four Quarter
Period shall be included in the calculation; and
(3) if interest on any Indebtedness actually incurred on the
Transaction 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
Transaction Date will be deemed to have been in effect during the
period.
"Consolidated Fixed Charges" means, with respect to Suburban Propane
and its Restricted Subsidiaries for any period, the sum, without duplication, of
the following amounts for that period, taken as a single accounting period:
(1) Consolidated Interest Expense; and
(2) the product of:
(a) the aggregate amount of distributions and other
dividends or payments paid in cash (other than to Suburban Propane or
its Restricted Subsidiaries) during the period in respect of Preferred
Stock and Disqualified Stock of Suburban Propane and its Restricted
Subsidiaries on a consolidated basis; and
(b) a fraction, the numerator of which is one and the
denominator of which is one less the then applicable current combined
federal, state and local statutory tax rate,expressed as a percentage.
"Consolidated Income Tax Expense" means, with respect to Suburban
Propane and its Restricted Subsidiaries for any period, the provision for
federal, state, local and foreign income taxes of Suburban Propane and its
Restricted Subsidiaries for the period as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the aggregate
interest expense of Suburban Propane and its Restricted Subsidiaries for that
period, determined on a consolidated basis in accordance with GAAP, including,
without limitation or duplication:
(1) any amortization of debt discount;
8
(2) the net cost under interest rate agreements described in
clauses (1) and (2) of the definition of Hedging Obligations;
(3) the interest portion of any deferred payment obligation;
(4) all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing;
(5) all accrued interest for all instruments evidencing
Indebtedness;
(6) the interest component of Capital Lease Obligations paid
or accrued or scheduled to be paid or accrued by Suburban Propane and
its Restricted Subsidiaries during the period;
(7) the consolidated interest that was capitalized during such
period; and
(8) any interest accruing on Indebtedness of another Person
that is Guaranteed by Suburban Propane or one of its Restricted
Subsidiaries or secured by a Lien on assets of Suburban Propane or one
of its Restricted Subsidiaries, whether or not such Guarantee or Lien
is called upon.
"Consolidated Net Income" means, for any period, the net income of
Suburban Propane and its Restricted Subsidiaries for that period, determined on
a consolidated basis in accordance with GAAP, and as adjusted to exclude:
(1) net after-tax extraordinary gains or losses;
(2) net after-tax gains or losses attributable to Asset Sales;
(3) other cash restructuring charges in an aggregate amount
not to exceed $5.0 million in the aggregate from the date of this
Indenture;
(4) all unrealized gains and losses reported under Financial
Accounting Standards Board Statement No. 133 in connection with forward
contracts, futures contracts or other derivatives or commodity hedging
agreements related to a Permitted Business in accordance with Suburban
Propane's commodity hedging policy as in effect from time to time;
(5) the net income or loss of any Person that 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 Suburban Propane
or any Restricted Subsidiary;
(6) the net income of any Restricted Subsidiary to the extent
that dividends or distributions of that net income are not at the date
of determination permitted by the terms of its charter or any judgment,
decree, order, statute, rule or other regulation; and
(7) the cumulative effect of any changes in accounting
principles.
"Consolidated Non-Cash Charges" means, with respect to Suburban Propane
and its Restricted Subsidiaries for any period, the sum, without duplication,
of: (1) depreciation, (2) amortization, (3) non-cash employee compensation
expenses and (4) any non-cash charges resulting from write-downs of non-
9
current assets, in each case to the extent that the Consolidated Net Income of
Suburban Propane for that period was reduced thereby. For the avoidance of
doubt, Consolidated Non-Cash Charges will not include unrealized gains and
losses reported under Financial Accounting Standards Board Statement No. 133.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Supervisors of Suburban Propane who:
(1) was a member of such Board of Supervisors on the date of
this Indenture;
(2) was appointed by the General Partner in accordance with
the provisions of Suburban Propane's partnership agreement as in effect
on the date of this Indenture; or
(3) was nominated for election or elected to such Board of
Supervisors with the approval of a majority of the Continuing Directors
who were not appointed by the General Partner and who were members of
such Board at the time of such nomination or election.
"Corporate Trust Office of the Trustee" will be at the address of the
Trustee specified in Section 12.02 hereof or such other address as to which the
Trustee may give notice to Suburban Propane.
"Credit Agreement" means the Second Amended and Restated Credit
Agreement, dated as of May 8, 2003, by and among the Operating Partnership, as
borrower, the lenders referred to therein, Wachovia Bank, National Association,
as administrative agent, Fleet National Bank, as syndication agent, and The Bank
of New York, as documentation agent, as amended, restated, modified, renewed,
refunded, replaced or refinanced (including by means of sales of debt securities
to institutional investors) in whole or in part from time to time.
"Credit Facilities" means one or more debt facilities (including,
without limitation, the Credit Agreement) or commercial paper facilities, in
each case with banks or other institutional lenders providing for revolving
credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from
such lenders against such receivables) or letters of credit, in each case, as
amended, restated, modified, renewed, refunded, replaced or refinanced
(including by means of sales of debt securities to institutional investors) in
whole or in part from time to time.
"Custodian" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A1 hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
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"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder of the Capital Stock), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at the option of the
holder of the Capital Stock, in whole or in part, on or prior to the date that
is 91 days after the date on which the Notes mature. Notwithstanding the
preceding sentence, (1) any Capital Stock that would constitute Disqualified
Stock solely because the holders of the Capital Stock have the right to require
Suburban Propane to repurchase such Capital Stock upon the occurrence of a
change of control or an asset sale will not constitute Disqualified Stock if the
terms of such Capital Stock provide that Suburban Propane may not repurchase or
redeem any such Capital Stock pursuant to such provisions unless such repurchase
or redemption complies with Section 4.07 hereof and (2) any Capital Stock issued
pursuant to any plan for the benefit of one or more employees will not
constitute Disqualified Stock solely because it may be required to be
repurchased by Suburban Propane in order to satisfy applicable contractual,
statutory or regulatory obligations. The amount of Disqualified Stock deemed to
be outstanding at any time for purposes of this Indenture will be the maximum
amount that Suburban Propane and its Restricted Subsidiaries may become
obligated to pay upon the maturity of, or pursuant to any mandatory redemption
provisions of, such Disqualified Stock, exclusive of accrued dividends.
"Domestic Subsidiary" means any Restricted Subsidiary of Suburban
Propane that was formed under the laws of the United States or any state of the
United States or the District of Columbia or that guarantees or otherwise
provides direct credit support for any Indebtedness of Suburban Propane.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any public or private offer and sale of Common
Units of Suburban Propane.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the Notes issued in the Exchange Offer pursuant
to Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness of Suburban Propane and its
Restricted Subsidiaries in existence on the date of this Indenture.
"Fair Market Value" means the value that would be paid by a willing
buyer to an unaffiliated willing seller in a transaction not involving distress
or necessity of either party, determined in good faith by the Board of
Supervisors of Suburban Propane.
"Finance Corp." means Suburban Energy Finance Corp., a Delaware
corporation, and any and all successors thereto.
11
"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 entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"General Partner" means Suburban Energy Services Group LLC, a Delaware
limited liability company, as the general partner of Suburban Propane.
"Global Note Legend" means the legend set forth in Section 2.06(g)(2),
which is required to be placed on all Global Notes issued under this Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes deposited with or on
behalf of and registered in the name of the Depository or its nominee,
substantially in the form of Exhibit A1 hereto and that bears the Global Note
Legend and that has the "Schedule of Exchanges of Interests in the Global Note"
attached thereto, issued in accordance with Section 2.01, 2.06(b)(3),
2.06(b)(4), 2.06(d)(2) or 2.06(f) hereof.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America (including any agency or
instrumentality thereof) for the payment of which obligations or guarantees the
full faith and credit of the United States of America is pledged and which are
not callable or redeemable at the issuer's option.
"Growth Related Capital Expenditures" means, with respect to any
Person, all capital expenditures by such Person made to improve or enhance the
existing capital assets or to increase the customer base of such Person or to
acquire or construct new capital assets (but excluding capital expenditures made
to maintain, up to the level thereof that existed at the time of such
expenditure, the operating capacity of the capital assets of such Person as such
assets existed at the time of such expenditure).
"Guarantee" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take or pay or to maintain financial statement
conditions or otherwise).
"Guarantor" means any Subsidiary that executes a Subsidiary Guarantee
in accordance with the provisions of this Indenture and its successors and
assigns.
"Hedging Obligations" means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to
floating or from floating to fixed), interest rate cap agreements and
interest rate collar agreements;
(2) other agreements or arrangements designed to manage
interest rates or interest rate risk; and
(3) other agreements or arrangements designed to protect such
Person against fluctuations in currency exchange rates or commodity
prices.
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"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person (excluding accrued expenses and trade payables),
whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in
respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations or Attributable
Debt in respect of sale and leaseback transactions;
(5) representing the balance deferred and unpaid of the
purchase price of any property, except any such balance that
constitutes an accrued expense or trade payable in the ordinary course
of business; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit,
Attributable Debt and Hedging Obligations) would appear as a liability upon a
balance sheet of the specified Person prepared in accordance with GAAP. In
addition, the term "Indebtedness" includes all Indebtedness of others secured by
a Lien on any asset of the specified Person (whether or not such Indebtedness is
assumed by the specified Person) and, to the extent not otherwise included, the
Guarantee by the specified Person of any Indebtedness of any other Person.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Initial Notes" means the first $175.0 million aggregate principal
amount of Notes issued under this Indenture on the date hereof.
"Initial Purchasers" means Wachovia Capital Markets, LLC and Goldman,
Sachs & Co.
"Interim Capital Transactions" means (1) borrowings, refinancings or
refundings of Indebtedness and sales of debt securities (other than for working
capital purposes and other than for items purchased on open account in the
ordinary course of business) by Suburban Propane or the Operating Partnership
and (2) sales of Capital Stock of Suburban Propane by Suburban Propane or the
Operating Partnership, in each case prior to the commencement of the dissolution
and liquidation of Suburban Propane.
"Investments" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the forms
of loans (including Guarantees or other obligations but excluding Guarantees
permitted to be incurred pursuant to Section 4.09(b)(9) hereof, advances or
capital contributions (excluding commission, travel and similar advances to
officers and employees made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If Suburban
Propane or any Restricted Subsidiary of
13
Suburban Propane sells or otherwise disposes of any Equity Interests of any
direct or indirect Restricted Subsidiary of Suburban Propane such that, after
giving effect to any such sale or disposition, such Person is no longer a
Restricted Subsidiary of Suburban Propane, Suburban Propane will be deemed to
have made an Investment on the date of any such sale or disposition equal to the
Fair Market Value of Suburban Propane's Investments in such Restricted
Subsidiary that were not sold or disposed of in an amount determined as provided
in the final paragraph of Section 4.07(b) hereof. The acquisition by Suburban
Propane or any Restricted Subsidiary of Suburban Propane of a Person that holds
an Investment in a third Person will be deemed to be an Investment by Suburban
Propane or such Restricted Subsidiary in such third Person in an amount equal to
the Fair Market Value of the Investments held by the acquired Person in such
third Person in an amount determined as provided in the final paragraph of
Section 4.07(b) hereof. Except as otherwise provided in this Indenture, the
amount of an Investment will be determined at the time the Investment is made
and without giving effect to subsequent changes in value.
"Issuers" means Suburban Propane and Finance Corp.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized 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 on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be prepared
by Suburban Propane and sent to all Holders of the Notes for use by such Holders
in connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Liquidated Damages" means all liquidated damages then owing pursuant
to the Registration Rights Agreement.
"Moody's" means Moody's Investors Service, Inc.
"Net Proceeds" means the aggregate cash proceeds received by Suburban
Propane or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking fees, and sales commissions, and any
relocation expenses incurred as a result of the Asset Sale, taxes paid or
payable as a result of the Asset Sale, in each case, after taking into account
any available tax credits or deductions and any tax sharing arrangements,
amounts required to be applied to the repayment of Indebtedness secured by a
Lien on such asset or assets and any reserve for adjustment in respect of the
sale price of such asset or assets established in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither Suburban Propane nor any of its
Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that
14
would constitute Indebtedness), (b) is directly or indirectly liable as
a guarantor or otherwise, or (c) constitutes the lender;
(2) no default with respect to which (including any rights
that the holders of the Indebtedness may have to take enforcement
action against an Unrestricted Subsidiary) would permit upon notice,
lapse of time or both any holder of any other Indebtedness of Suburban
Propane or any of its Restricted Subsidiaries to declare a default on
such other Indebtedness or cause the payment of the Indebtedness to be
accelerated or payable prior to its Stated Maturity; and
(3) as to which the lenders have been notified in writing that
they will not have any recourse to the stock or assets of Suburban
Propane or any of its Restricted Subsidiaries.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Notes" has the meaning assigned to it in the preamble to this
Indenture. The Initial Notes and the Additional Notes shall be treated as a
single class for all purposes under this Indenture, and unless the context
otherwise requires, all references to the Notes shall include the Initial Notes
and any Additional Notes.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"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.
"Officers' Certificate" means a certificate signed on behalf of
Suburban Propane by two Officers of Suburban Propane, one of whom must be the
principal executive officer, the principal financial officer, the treasurer or
the principal accounting officer of Suburban Propane, that meets the
requirements of Section 12.05 hereof.
"Operating Partnership" means Suburban Propane, L.P., a Delaware
limited partnership and a direct Subsidiary of Suburban Propane.
"Opinion of Counsel" means an opinion from legal counsel that meets the
requirements of Section 12.05 hereof. The counsel may be an employee of or
counsel to Suburban Propane or any Subsidiary of Suburban Propane.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Permitted Business" means any business that is the same as or related,
ancillary or complementary to any of the businesses of Suburban Propane or any
of its Restricted Subsidiaries as conducted as of the date of this Indenture,
after giving effect to the Acquisition.
"Permitted Investments" means:
(1) any Investment in Suburban Propane or in a Restricted
Subsidiary of Suburban Propane;
15
(2) any Investment in Cash Equivalents;
(3) any Investment by Suburban Propane or any Restricted
Subsidiary of Suburban Propane in a Person, if as a result of such
Investment:
(a) such Person becomes a Restricted Subsidiary of
Suburban Propane; or
(b) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of
its assets to, or is liquidated into, Suburban Propane or a Restricted
Subsidiary of Suburban Propane;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.10 hereof;
(5) any acquisition of assets or Capital Stock to the extent
made in exchange for the issuance of Equity Interests (other than
Disqualified Stock) of Suburban Propane;
(6) any Investments received in compromise or resolution of
(A) obligations of trade creditors or customers that were incurred in
the ordinary course of business of Suburban Propane or any of its
Restricted Subsidiaries, including pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency
of any trade creditor or customer; or (B) litigation, arbitration or
other disputes;
(7) Investments represented by Hedging Obligations;
(8) loans or advances to employees made in the ordinary course
of business of Suburban Propane or a Restricted Subsidiary of Suburban
Propane in an aggregate principal amount not to exceed $1.0 million at
any one time outstanding;
(9) repurchases of the Notes; and
(10) other Investments in any Person having an aggregate Fair
Market Value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken
together with all other Investments made pursuant to this clause (10)
that are at the time outstanding, not to exceed $10.0 million.
"Permitted Liens" means:
(1) Liens on assets of Suburban Propane securing Indebtedness
and other Obligations under Credit Facilities and Existing Indebtedness
that was permitted by the terms of this Indenture to be incurred and/or
securing Hedging Obligations related thereto;
(2) Liens in favor of the Issuers;
(3) Liens on property of a Person existing at the time such
Person is merged with or into or consolidated with Suburban Propane;
provided that such Liens were in existence prior to the contemplation
of such merger or consolidation and do not extend to any assets other
than those of the Person merged into or consolidated with Suburban
Propane;
16
(4) Liens on property (including Capital Stock) existing at
the time of acquisition of the property by Suburban Propane; provided
that such Liens were in existence prior to, such acquisition, and not
incurred in contemplation of, such acquisition;
(5) Liens to secure Indebtedness permitted to be incurred
pursuant to Section 4.09(b)(11) hereof;
(6) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by Section 4.09(b)(4) hereof covering only the
assets acquired with or financed by such Indebtedness;
(7) Liens existing on the date of this Indenture;
(8) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
concluded; provided that any reserve or other appropriate provision as
is required in conformity with GAAP has been made therefor;
(9) Liens imposed by law, such as carriers', warehousemen's,
landlord's and mechanics' Liens, in each case, incurred in the ordinary
course of business;
(10) survey exceptions, easements or reservations of, or
rights of others for, licenses, rights-of-way, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or zoning or
other restrictions as to the use of real property that were not
incurred in connection with Indebtedness and that do not in the
aggregate materially adversely affect the value of said properties or
materially impair their use in the operation of the business of such
Person;
(11) Liens created for the benefit of (or to secure) the
Notes;
(12) Liens to secure any Permitted Refinancing Indebtedness
permitted to be incurred under this Indenture; provided, however, that:
(a) the new Lien shall be limited to all or part of
the same property and assets that secured or, under the written
agreements pursuant to which the original Lien arose, could secure the
original Lien (plus improvements and accessions to, such property or
proceeds or distributions thereof); and
(b) the Indebtedness secured by the new Lien is not
increased to any amount greater than the sum of (1) the outstanding
principal amount or, if greater, committed amount, of the Permitted
Refinancing Indebtedness and (2) an amount necessary to pay any fees
and expenses, including premiums, related to such refinancings,
refunding, extension, renewal or replacement; and
(13) Liens incurred in the ordinary course of business of
Suburban Propane with respect to obligations that do not exceed $5.0
million at any one time outstanding.
"Permitted Refinancing Indebtedness" means any Indebtedness of Suburban
Propane or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to refund, refinance, replace, defease or discharge
other Indebtedness of Suburban Propane or any of its Restricted Subsidiaries;
provided that:
17
(1) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal
amount (or accreted value, if applicable) of the Indebtedness extended,
refinanced, renewed, replaced, defeased or refunded (plus all accrued
interest on the Indebtedness and the amount of all fees, expenses and
premiums incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to
the Notes, such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and is subordinated in
right of payment to, the Notes on terms at least as favorable to the
Holders of Notes as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; and
(4) such Indebtedness is incurred either by the Issuers or by
the Restricted Subsidiary that is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"Preferred Stock" as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes, however designated, that is preferred as
to the payment of distributions or dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such Person.
"Principals" means the Persons owning the Capital Stock of the General
Partner as of the date of this Indenture.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(1) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of December 23, 2003, among the Issuers and the Initial
Purchasers, as such agreement may be amended, modified or supplemented from time
to time and, with respect to any Additional Notes, one or more registration
rights agreements among the Issuers and the other parties thereto, as such
agreement(s) may be amended, modified or supplemented from time to time,
relating to rights given by the Issuers to the purchasers of Additional Notes to
register such Additional Notes under the Securities Act.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note
or Regulation S Permanent Global Note, as appropriate.
18
"Regulation S Permanent Global Note" means a permanent Global Note in
the form of Exhibit A1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon
expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary Global Note in
the form of Exhibit A2 hereto deposited with or on behalf of and registered in
the name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes initially sold in reliance on Rule 903
of Regulation S.
"Related Party" means:
(1) any controlling stockholder, 80% (or more) owned
Subsidiary, or immediate family member (in the case of an individual)
of any Principal; or
(2) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially
holding an 80% or more controlling interest of which consist of any one
or more Principals and/or such other Persons referred to in the
immediately preceding clause (1).
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group 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 who shall have direct responsibility for the administration of this
Indenture 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 Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day distribution compliance period as
defined in Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"S&P" means Standard & Poor's Ratings Group.
"Securities Act" means the Securities Act of 1933, as amended.
19
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date of this Indenture.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the documentation governing
such Indebtedness as of the date of this Indenture, and will not include any
contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency and
after giving effect to any voting agreement or stockholders' agreement
that effectively transfers voting power) to vote in the election of
directors, managers or trustees of the corporation, association or
other business entity is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of
that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are that Person
or one or more Subsidiaries of that Person (or any combination
thereof).
"Subsidiary Guarantee" means the Guarantee by each Guarantor of
Suburban Propane's obligations under this Indenture and on the Notes, executed
pursuant to the provisions of this Indenture.
"Suburban Propane" means Suburban Propane Partners, L.P., a Delaware
limited partnership, and any and all successors thereto.
"Termination Capital Transactions" means any sale, transfer or other
disposition of property of Suburban Propane or the Operating Partnership
occurring upon or incident to the liquidation and winding up of Suburban Propane
and the Operating Partnership.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.ss.ss.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
thereunder.
"Trustee" means the party named as such in the preamble to this
Indenture until a successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor serving
hereunder.
"Unrestricted Global Note" means a Global Note that does not bear and
is not required to bear the Private Placement Legend.
"Unrestricted Definitive Note" means a Definitive Note that does not
bear and is not required to bear the Private Placement Legend.
20
"Unrestricted Subsidiary" means any Subsidiary of Suburban Propane
((other than Finance Corp., the Operating Partnership or any successor to any of
them) that is designated by the Board of Supervisors as an Unrestricted
Subsidiary pursuant to a Board Resolution, but only to the extent that such
Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) except as permitted by Section 4.11 hereof, is not party
to any agreement, contract, arrangement or understanding with Suburban
Propane or any Restricted Subsidiary of Suburban Propane unless the
terms of any such agreement, contract, arrangement or understanding are
no less favorable to Suburban Propane or such Restricted Subsidiary
than those that might be obtained at the time from Persons who are not
Affiliates of Suburban Propane;
(3) is a Person with respect to which neither Suburban Propane
nor any of its Restricted Subsidiaries has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or (b) to
maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of Suburban Propane or any
of its Restricted Subsidiaries.
"U.S. Person" means a U.S. Person as defined in Rule 902(k) promulgated
under the Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Supervisors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment at
final maturity, in respect of the Indebtedness, by (b) the number of
years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment; by
(2) the then outstanding principal amount of such
Indebtedness.
Section 1.02 Other Definitions.
Defined in
Term Section
---- -------
"Affiliate Transaction"............................... 4.11
"Asset Sale Offer".................................... 3.10
"Authentication Order"................................ 2.02
"Change of Control Offer"............................. 4.15
"Change of Control Payment"........................... 4.15
"Change of Control Payment Date"...................... 4.15
"Covenant Defeasance"................................. 8.03
"DTC"................................................. 2.03
21
Defined in
Term Section
---- -------
"Event of Default".................................... 6.01
"Excess Proceeds"..................................... 4.10
"incur"............................................... 4.09
"Legal Defeasance".................................... 8.02
"Offer Amount"........................................ 3.10
"Offer Period"........................................ 3.10
"Paying Agent"........................................ 2.03
"Permitted Debt"...................................... 4.09
"Purchase Date"....................................... 3.10
"Registrar"........................................... 2.03
"Restricted Payments"................................. 4.07
Section 1.03 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 a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes and the Subsidiary Guarantees means the Issuers
and the Guarantors, respectively, and any successor obligor upon the Notes and
the Subsidiary Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule under
the TIA have the meanings so assigned to them.
Section 1.04 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 GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) "will" shall be interpreted to express a command;
22
(6) provisions apply to successive events and transactions;
and
(7) references to sections of or rules under the Securities
Act will be deemed to include substitute, replacement of successor
sections or rules adopted by the Commission from time to time.
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of authentication
will be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note will be dated the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes will 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. However, to the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form will be substantially in
the form of Exhibits A1 or A2 attached hereto (including the Global Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form will be substantially in the form of
Exhibit A1 attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note will represent such of the outstanding Notes as will
be specified therein and each shall provide that it represents the aggregate
principal amount of outstanding Notes from time to time endorsed thereon and
that the aggregate principal 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 aggregate principal amount of outstanding Notes
represented thereby will be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and sold in reliance on
Regulation S will be issued initially in the form of the Regulation S Temporary
Global Note, which will be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, at its New York office, as custodian for
the Depositary, and registered in the name of the Depositary or the nominee of
the Depositary for the accounts of designated agents holding on behalf of
Euroclear or Clearstream, duly executed by the Issuers and authenticated by the
Trustee as hereinafter provided. The Restricted Period will be terminated upon
the receipt by the Trustee of:
(1) a written certificate from the Depositary, together with
copies of certificates from Euroclear and Clearstream certifying that
they have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the Regulation S
Temporary Global Note (except to the extent of any beneficial owners
thereof who acquired an interest therein during the Restricted Period
pursuant to another exemption from registration under the Securities
Act and who will take delivery of a beneficial ownership interest in a
144A Global Note bearing a Private Placement Legend, all as
contemplated by Section 2.06(b) hereof); and
23
(2) an Officers' Certificate from Suburban Propane.
Following the termination of the Restricted Period, beneficial
interests in the Regulation S Temporary Global Note will be exchanged for
beneficial interests in Regulation S Permanent Global Note pursuant to the
Applicable Procedures. Simultaneously with the authentication of Regulation S
Permanent Global Note, the Trustee will cancel the Regulation S Temporary Global
Note. The aggregate principal amount of the Regulation S Temporary Global Note
and the Regulation S Permanent Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depositary
or its nominee, as the case may be, in connection with transfers of interest as
hereinafter provided.
(3) Euroclear and Clearstream Procedures Applicable. The
provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of Clearstream Banking" and "Customer Handbook" of
Clearstream will be applicable to transfers of beneficial interests in
the Regulation S Temporary Global Note and the Regulation S Permanent
Global Note that are held by Participants through Euroclear or
Clearsteam.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for each of the Issuers by
manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual signature of
the Trustee. The signature will be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Issuers signed
by two Officers of each of the Issuers (an "Authentication Order"), authenticate
Notes for original issue up to the aggregate principal amount stated in
paragraph 4 of the Notes. The aggregate principal amount of Notes outstanding at
any time may not exceed such amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Issuers to authenticate Notes. 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 rights as an Agent to deal with Holders or an
Affiliate of the Issuers.
Section 2.03 Registrar and Paying Agent.
Suburban Propane will 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 will keep a register of the Notes and of their transfer and exchange.
Suburban Propane 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 agent. Suburban Propane may
change any Paying Agent or Registrar without notice to any Holder. Suburban
Propane will notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. If Suburban Propane fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such.
Suburban Propane or any of its Subsidiaries may act as Paying Agent or
Registrar.
24
Suburban Propane initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
Suburban Propane initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
Suburban Propane will 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, premium or Liquidated Damages, if any, or interest on the Notes, and
will notify the Trustee of any default by Suburban Propane 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. Suburban Propane 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 Suburban Propane or
a Subsidiary) will have no further liability for the money. If Suburban Propane
or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate
trust fund for the benefit of the Holders all money held by it as Paying Agent.
Upon any bankruptcy or reorganization proceedings relating to Suburban Propane,
the Trustee will serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, Suburban Propane will 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 the Holders of
Notes and Suburban Propane shall otherwise comply with TIA ss. 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
Suburban Propane for Definitive Notes if:
(1) Suburban Propane delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under
the Exchange Act and, in either case, a successor Depositary is not
appointed by Suburban Propane within 120 days after the date of such
notice from the Depositary; or
(2) Suburban Propane in its sole discretion determines that
the Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and delivers a written notice to such effect to the
Trustee; provided that in no event shall the Regulation S Temporary
Global Note be exchanged by Suburban Propane for Definitive Notes prior
to (x) the expiration of the Restricted Period and (y) the receipt by
the Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act.
Upon the occurrence of either of the preceding events in (1) or (2)
above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged
25
or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof.
Every Note authenticated and delivered in exchange for, or in lieu of, a Global
Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or
2.10 hereof, shall be authenticated and delivered in the form of, and shall be,
a Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.06(a), however, beneficial interests in a Global Note
may be transferred and exchanged as provided in Section 2.06(b), (c) or (f)
hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes will be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes will be subject to restrictions on transfer comparable to those set
forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also will require compliance with
either subparagraph (1) or (2) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend;
provided, however, that prior to the expiration of the Restricted
Period, transfers of beneficial interests in the Regulation S Temporary
Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Beneficial
interests in any Unrestricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(1) above,
the transferor of such beneficial interest must deliver to the
Registrar either:
(A) both:
(i) a written order from a Participant or an
Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an
amount equal to the beneficial interest to be
transferred or exchanged; and
(ii) instructions given in accordance with
the Applicable Procedures containing information
regarding the Participant account to be credited with
such increase; or
(B) both:
(i) a written order from a Participant or an
Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive
Note in an amount equal to the beneficial interest to
be transferred or exchanged; and
(ii) instructions given by the Depositary to
the Registrar containing information regarding the
Person in whose name such Definitive Note shall be
26
registered to effect the transfer or exchange
referred to in (1) above; provided that in no event
shall Definitive Notes be issued upon the transfer or
exchange of beneficial interests in the Regulation S
Temporary Global Note prior to (A) the expiration of
the Restricted Period and (B) the receipt by the
Registrar of any certificates required pursuant to
Rule 903 under the Securities Act. Upon consummation
of an Exchange Offer by the Issuers in accordance
with Section 2.06(f) hereof, the requirements of this
Section 2.06(b)(2) shall be deemed to have been
satisfied upon receipt by the Registrar of the
instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests
in the Restricted Global Notes. Upon satisfaction of
all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust
the principal amount of the relevant Global Note(s)
pursuant to Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(2) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form
of a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Temporary Global
Note or the Regulation S Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof.
(4) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or
(iii) a Person who is an affiliate (as defined in Rule 144) of
Suburban Propane;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
27
(i) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a)
thereof; or
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Issuers shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(1) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144, a
28
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred
to Suburban Propane or any of its Subsidiaries, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(2) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Issuers shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(2) Beneficial Interests in Regulation S Temporary
Global Note to Definitive Notes. Notwithstanding Sections
2.06(c)(1)(A) and (C) hereof, a beneficial interest in the
Regulation S Temporary Global Note may not be exchanged for a
Definitive Note or transferred to a Person who takes delivery
thereof in the form of a Definitive Note prior to (A) the
expiration of the Restricted Period and (B) the receipt by the
Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act, except in the case
of a transfer pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule
904.
(3) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal
that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or
(iii) a Person who is an affiliate (as defined in Rule 144) of
Suburban Propane;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
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(i) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in
the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(4) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.06(b)(2) hereof, the Trustee will cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Issuers will execute and the Trustee
will authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.06(c)(4) will be registered in such name or names and
in such authorized denomination or denominations as the holder of such
beneficial interest requests through instructions to the Registrar from
or through the Depositary and the Participant or Indirect Participant.
The Trustee will deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(4)
will not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(1) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
30
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to Suburban Propane or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(F) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note,
increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the appropriate
Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the
Regulation S Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution
of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of Suburban Propane;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(c)
thereof; or
(ii) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
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and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(2), the Trustee will cancel the
Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee will cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (2)(B),
(2)(D) or (3) above at a time when an Unrestricted Global Note has not
yet been issued, the Issuers will issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the
Trustee will authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of Definitive
Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar will register the transfer
or exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
must provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule
144A, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item
(1) thereof;
(B) if the transfer will be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
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(2) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
broker-dealer, (ii) a Person participating in the distribution
of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of Suburban Propane;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof;
or
(ii) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Issuers will issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes accepted for exchange in the
Exchange Offer
33
by Persons that certify in the applicable Letters of Transmittal that
(A) they are not Broker-Dealers, (B) they are not participating in a
distribution of the Exchange Notes and (z) they are not affiliates (as
defined in Rule 144) of Suburban Propane; and
(2) Unrestricted Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive Notes
accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee will cause
the aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Issuers will execute and the Trustee will
authenticate and deliver to the Persons designated by the Holders of Definitive
Notes so accepted Unrestricted Definitive Notes in the appropriate principal
amount.
(g) Legends. The following legends will appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below,
each Global Note and each Definitive Note (and all Notes
issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS,
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT; (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A)
TO THE ISSUERS OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN "ACCREDITED INVESTOR")),
(D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL IF THE ISSUERS SO REQUEST) AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE DATE, IF THE PROPOSED TRANSFEREE IS
AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE OR THE ISSUERS SUCH CERTIFICATIONS, IF LESS THAN $100,000, AND LEGAL
OPINIONS AS ANY OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN
TO
34
THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
SECURITY IN VIOLATION OF THE FOREGOING RESTRICTIONS."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(4),
(c)(3), (c)(4), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this
Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) will not bear the Private Placement
Legend.
(2) Global Note Legend. Each Global Note will bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF SUBURBAN PROPANE.
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. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO SUBURBAN PROPANE 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."
(3) Regulation S Temporary Global Note Legend.
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATES NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note will be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such
35
cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note or for Definitive Notes, the
principal amount of Notes represented by such Global Note will be reduced
accordingly and an endorsement will be made on such Global Note by the Trustee
or by the Depositary at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note will be increased accordingly and an
endorsement will be made on such Global Note by the Trustee or by the Depositary
at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the
Issuers will execute and the Trustee will authenticate Global Notes and
Definitive Notes upon receipt of an Authentication Order in accordance
with Section 2.02 or at the Registrar's request.
(2) No service charge will be made to a Holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but Suburban Propane 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 charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 3.10, 4.10, 4.15
and 9.05 hereof).
(3) The Registrar will not be required to register the
transfer of or exchange of any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes will be the valid obligations of the Issuers, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of
transfer or exchange.
(5) Neither the Registrar nor the Issuers will be required:
(A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close
of business on the day of selection;
(B) to register the transfer of or to exchange any
Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a Note
between a record date and the next succeeding interest payment
date.
(6) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and Suburban Propane 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 interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or Suburban Propane shall be affected by
notice to the contrary.
36
(7) The Trustee will authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
(8) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06
to effect a registration of transfer or exchange may be submitted by
facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or Suburban Propane
and the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Note, the Issuers will issue and the Trustee, upon receipt of an
Authentication Order, will 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 and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. Suburban Propane and the Trustee may charge for their expenses in
replacing a Note.
Every replacement Note is an additional obligation of Suburban Propane
and will be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note
does not cease to be outstanding because Suburban Propane or an Affiliate of
Suburban Propane holds the Note; however, Notes held by Suburban Propane or a
Subsidiary of Suburban Propane shall not be deemed to be outstanding for
purposes of Section 3.07(a) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than Suburban Propane, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes will be deemed to be no longer outstanding and will cease to accrue
interest.
Section 2.09 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
Suburban Propane or Finance Corp., or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
Suburban Propane or Finance Corp., will be considered as though not outstanding,
except that for the purposes of determining whether the Trustee will be
protected in relying on any such direction, waiver or consent, only Notes that a
Responsible Officer of the Trustee actually knows are so owned will be so
disregarded.
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Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Issuers may prepare and the Trustee, upon receipt of an Authentication Order,
will authenticate temporary Notes. Temporary Notes will be substantially in the
form of certificated Notes but may have variations that the Issuers consider
appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee. Without unreasonable delay, the Issuers will prepare and the Trustee
will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of
this Indenture.
Section 2.11 Cancellation.
The Issuers at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent will forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else will cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and will dispose of
canceled Notes (subject to the record retention requirement of the Exchange Act)
in its customary manner. The Issuers may not issue new Notes to replace Notes
that they have paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If Suburban Propane defaults in a payment of interest on the Notes, it
will 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, in each case at the rate provided in the Notes
and in Section 4.01 hereof. Suburban Propane will notify the Trustee in writing
of the amount of defaulted interest proposed to be paid on each Note and the
date of the proposed payment. Suburban Propane will fix or cause to be fixed
each such special record date and payment date, provided that no such special
record date may be less than 10 days prior to the related payment date for such
defaulted interest. At least 15 days before the special record date, Suburban
Propane (or, upon the written request of Suburban Propane, the Trustee in the
name and at the expense of Suburban Propane) will mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.
Section 2.13 Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer and
subject to Section 2.12, the Issuers, the Trustee, any Paying Agent, any
co-registrar and any Registrar may deem and treat the person in whose name any
Note shall be registered upon the register of Notes kept by the Registrar as the
absolute owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notation of the ownership or other writing thereon made by
anyone other than the Issuers, any co-registrar or any Registrar) for the
purpose of receiving all payments with respect to such Note and for all other
purposes, and none of the Issuers, the Trustee, any Paying Agent, any
co-registrar or any Registrar shall be affected by any notice to the contrary.
Section 2.14 CUSIP Numbers.
The Issuers, in issuing the Notes, may use one or more "CUSIP" numbers
and, if so, the Trustee shall use such CUSIP numbers in notices of redemption or
exchange as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness or accuracy of
38
any CUSIP number printed in the notice or on the Notes, and that reliance may be
placed only on the other identification numbers printed on the Notes. The
Issuers shall notify the Trustee of any change to the CUSIP numbers.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If Suburban Propane elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at
least 45 days but not more than 60 days before a redemption date (unless a
shorter notice period shall be satisfactory to the Trustee), an Officers'
Certificate setting forth:
(1) the clause of this Indenture pursuant to which the
redemption shall occur;
(2) the redemption date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
If the Registrar is not the Trustee, Suburban Propane shall,
concurrently with each notice of redemption or repurchase, cause the Registrar
to deliver to the Trustee a certificate (upon which the Trustee may rely)
setting forth the principal amounts of Notes held by each Holder.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee will select Notes for redemption or
purchase as follows:
(1) if the Notes are listed on any national securities
exchange, in compliance with the requirements of the principal national
securities exchange on which the Notes are listed; or
(2) if the Notes are not listed on any national securities
exchange, on a pro rata basis, by lot or by such method as the Trustee
shall deem fair and appropriate.
In the event of partial redemption or purchase by lot, the particular
Notes to be redeemed or purchased will be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption or
purchase date by the Trustee from the outstanding Notes not previously called
for redemption or purchase.
The Trustee will promptly notify Suburban Propane in writing of the
Notes selected for redemption or purchase and, in the case of any Note selected
for partial redemption or purchase, the principal amount thereof to be redeemed
or purchased. Notes and portions of Notes selected will be in amounts of $1,000
or whole multiples of $1,000; except that if all of the Notes of a Holder are to
be redeemed or purchased, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except
as provided in the preceding sentence, provisions of this Indenture that apply
to Notes called for redemption or purchase also apply to portions of Notes
called for redemption or purchase.
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Section 3.03 Notice of Redemption.
Subject to the provisions of Section 3.10 hereof, at least 30 days but
not more than 60 days before a redemption date, Suburban Propane will mail or
cause to be mailed, by first class mail, a notice of redemption to each Holder
whose Notes are to be redeemed at its registered address, except that redemption
notices may be mailed more than 60 days prior to a redemption date if the notice
is issued in connection with a defeasance of the Notes or a satisfaction and
discharge of this Indenture pursuant to Articles 8 or 11 of this Indenture.
The notice will identify the Notes to be redeemed and will state:
(1) the redemption date;
(2) the redemption price;
(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 upon
cancellation of the original Note;
(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 Suburban Propane defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(7) the paragraph of the Notes and/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 Suburban Propane's request, the Trustee will give the notice of
redemption in Suburban Propane's name and at its expense; provided, however,
that Suburban Propane has delivered to the Trustee, at least 45 days prior to
the redemption date (unless a shorter notice period shall be satisfactory to the
Trustee), 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.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05 Deposit of Redemption or Purchase Price.
On or before 10:00 a.m. Eastern Time on the redemption or purchase
date, Suburban Propane will deposit with the Trustee or with the Paying Agent
money sufficient to pay the redemption or purchase price of and accrued interest
and Liquidated Damages, if any, on all Notes to be redeemed or purchased
40
on that date. The Trustee or the Paying Agent will promptly return to Suburban
Propane any money deposited with the Trustee or the Paying Agent by Suburban
Propane in excess of the amounts necessary to pay the redemption or purchase
price of, and accrued interest and Liquidated Damages, if any, on, all Notes to
be redeemed or purchased.
If Suburban Propane complies with the provisions of the preceding
paragraph, on and after the redemption or purchase date, interest will cease to
accrue on the Notes or the portions of Notes called for redemption or purchase.
If a Note is redeemed or purchased on or after an interest record date but on or
prior to the related interest payment date, then any accrued and unpaid interest
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 or purchase
is not so paid upon surrender for redemption or purchase because of the failure
of Suburban Propane to comply with the preceding paragraph, interest shall be
paid on the unpaid principal, from the redemption or purchase 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
4.01 hereof.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the
Issuers will issue and, upon receipt of an Authentication Order, the Trustee
will authenticate for the Holder at the expense of the Issuers a new Note equal
in principal amount to the unredeemed or unpurchased portion of the Note
surrendered.
Section 3.07 Optional Redemption.
(a) [Reserved].
(b) At any time prior to December 15, 2006, the Issuers may on any one
or more occasions redeem up to 35% of the aggregate principal amount of Notes
issued under this Indenture at a redemption price of 106.875% of the principal
amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
to the redemption date, with the net cash proceeds of one or more Equity
Offerings; provided that:
(1) at least 65% of the aggregate principal amount of Notes
originally issued under this Indenture (excluding Notes held by
Suburban Propane and its Subsidiaries) remains outstanding immediately
after the occurrence of such redemption; and
(2) the redemption must occur within 90 days of the date of
the closing of such Equity Offering.
(c) On or after December 15, 2008, the Issuers may redeem all or a part
of the Notes upon not less than 30 nor more than 60 days notice, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the
applicable redemption date, if redeemed during the twelve-month period beginning
on December 15 of the years indicated below, subject to the rights of Holders on
the relevant record date to receive interest on the relevant interest payment
date:
Year Percentage
---- ----------
2008.................................................. 103.4375%
2009.................................................. 102.2917%
2010.................................................. 101.1458%
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Year Percentage
---- ----------
2011 and thereafter................................... 100.0000%
(d) Any redemption pursuant to this Section 3.07 shall be made pursuant
to the provisions of Section 3.01 through 3.06 hereof.
Section 3.08 Mandatory Redemption.
The Issuers are not required to make mandatory redemption or sinking
fund payments with respect to the Notes.
Section 3.09 [Reserved].
Section 3.10 Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, Suburban Propane is
required to commence an offer to all Holders to purchase Notes (an "Asset Sale
Offer"), it will follow the procedures specified below.
The Asset Sale Offer shall be made to all Holders and all holders of
other Indebtedness that is pari passu with the Notes containing provisions
similar to those set forth in this Indenture with respect to offers to purchase
or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain
open for a period of at least 20 Business Days following its commencement and
not more than 30 Business Days, except to the extent that a longer period is
required by applicable law (the "Offer Period"). No later than three Business
Days after the termination of the Offer Period (the "Purchase Date"), Suburban
Propane will apply all Excess Proceeds (the "Offer Amount") to the purchase of
Notes and such other pari passu Indebtedness (on a pro rata basis, if
applicable) or, if less than the Offer Amount has been tendered, all Notes and
other Indebtedness tendered in response to the Asset Sale Offer. Payment for any
Notes so purchased will be made in the same manner as interest payments are
made.
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 and
Liquidated Damages, if any, will 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 will be payable to Holders who tender Notes pursuant to the Asset Sale
Offer.
Upon the commencement of an Asset Sale Offer, Suburban Propane will
send, by first class mail, a notice to the Trustee and each of the Holders, with
a copy to the Trustee. The notice will contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Asset Sale
Offer. The notice, which will govern the terms of the Asset Sale Offer, will
state:
(1) that the Asset Sale Offer is being made pursuant to this
Section 3.10 and Section 4.10 hereof and the length of time the Asset
Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase
Date;
(3) that any Note not tendered or accepted for payment will
continue to accrue interest;
(4) that, unless Suburban Propane defaults in making such
payment, any Note accepted for payment pursuant to the Asset Sale Offer
will cease to accrue interest after the Purchase Date;
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(5) that Holders electing to have a Note purchased pursuant to
an Asset Sale Offer may elect to have Notes purchased in integral
multiples of $1,000 only;
(6) that Holders electing to have Notes purchased pursuant to
any Asset Sale Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" attached to the
Notes completed, or transfer by book-entry transfer, to Suburban
Propane, a Depositary, if appointed by Suburban Propane, or a Paying
Agent at the address specified in the notice at least three Business
Days before the Purchase Date;
(7) that Holders will be entitled to withdraw their election
if Suburban Propane, 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;
(8) that, if the aggregate principal amount of Notes and other
pari passu Indebtedness surrendered by holders thereof exceeds the
Offer Amount, the Issuers will select the Notes and other pari passu
Indebtedness to be purchased on a pro rata basis based on the principal
amount of Notes and such other pari passu Indebtedness surrendered
(with such adjustments as may be deemed appropriate by Suburban Propane
so that only Notes in denominations of $1,000, or integral multiples
thereof, will be purchased); and
(9) that Holders whose Notes were purchased only in part will
be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
On or before the Purchase Date, Suburban Propane will, 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 will deliver or cause to be delivered to the Trustee the Notes properly
accepted together with 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 3.10. Suburban Propane, the Depositary or the Paying
Agent, as the case may be, will 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, will promptly issue a new Note, and
the Trustee, upon written request from Suburban Propane will authenticate and
mail or deliver (or cause to be transferred by book entry) 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. Suburban Propane will publicly announce the
results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.10, any purchase
pursuant to this Section 3.10 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes.
Suburban Propane will pay or cause to be paid the principal of,
premium, if any, and interest and Liquidated Damages, if any, on the Notes on
the dates and in the manner provided in the Notes.
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Principal, premium, if any, and interest and Liquidated Damages, if any will be
considered paid on the date due if the Paying Agent, if other than the Issuers
or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by Suburban Propane in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest then due. Suburban Propane will pay all Liquidated Damages, if any, in
the same manner on the dates and in the amounts set forth in the Registration
Rights Agreement.
Suburban Propane will pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to 1% per annum in excess of the then applicable interest rate on the Notes to
the extent lawful; it will 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 period) at the same
rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
Suburban Propane will maintain in the Borough of Manhattan, the City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon Suburban Propane in respect of the Notes and this Indenture
may be served. Suburban Propane will 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 Suburban Propane fails to maintain any such required office or agency
or fails 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.
Suburban Propane 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 will in any manner relieve
Suburban Propane of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. Suburban Propane
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.
Suburban Propane hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of Suburban Propane in accordance with
Section 2.03 hereof.
Section 4.03 Reports.
(a) Whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding, the Issuers will furnish to
the Holders of Notes or cause the Trustee to furnish to the Holders of Notes,
within the time periods specified in the Commission's rules and regulations:
(1) all quarterly and annual financial information that would
be required to be filed with the Commission on Forms 10-Q and 10-K if
the Issuers were required to file such forms; and
(2) all current reports that would be required to be filed
with the Commission on Form 8-K if the Issuers were required to file
such reports.
All such reports will be prepared in all material respects in accordance with
all the rules and regulations applicable to such reports. Each annual report on
Form 10-K will include a report on the Issuers' consolidated financial
statements by the Issuers' certified independent accountants. In addition,
following the consummation of the Exchange Offer contemplated by the
Registration Rights Agreement, the Issuers
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will file a copy of all of each of the reports referred to in clauses (1) and
(2) above with the Commission for public availability within the time periods
specified in the Commission's rules and regulations applicable to such reports
(unless the Commission will not accept such a filing) and will post the reports
or links to such reports on Suburban Propane's website within those time
periods. The Issuers will at all times comply with TIA ss. 314(a).
If, at any time, either or both of the Issuers are no longer subject to
the periodic reporting requirements of the Exchange Act for any reason, the
Issuers will nevertheless continue filing the reports specified in the preceding
paragraph with the Commission within the time periods specified above unless the
Commission will not accept such a filing. The Issuers agree that they will not
take any action for the purpose of causing the Commission not to accept any such
filings. If, notwithstanding the foregoing, the Commission will not accept the
Issuers' filings for any reason, the Issuers will post the reports referred to
in the preceding paragraph on Suburban Propane's website within the time periods
that would apply if the Issuers were required to file those reports with the
Commission.
(b) If Suburban Propane has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by the preceding paragraph will include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes
thereto, and in Management's Discussion and Analysis of Financial Condition and
Results of Operations, of the financial condition and results of operations of
Suburban Propane and its Restricted Subsidiaries separate from the financial
condition and results of operations of the Unrestricted Subsidiaries of Suburban
Propane.
(c) For so long as any Notes remain outstanding, at any time that
Suburban Propane is not required to file the reports required by the preceding
paragraphs with the Commission, Suburban Propane will furnish to the Holders and
to securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
Section 4.04 Compliance Certificate.
(a) Suburban Propane and Finance Corp. (to the extent that Finance
Corp. is so required under the TIA) shall deliver to the Trustee, within 95 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of Suburban Propane and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether Suburban Propane 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 or her knowledge Suburban Propane 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 of this Indenture (or, if a Default or Event of Default has occurred,
describing all such Defaults or Events of Default of which he or she may have
knowledge and what action Suburban Propane is taking or propose to take with
respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Notes is prohibited or if such event
has occurred, a description of the event and what action Suburban Propane is
taking 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 4.03 above shall be accompanied by a
written statement of Suburban Propane's independent public accountants (who
shall be a firm of established national reputation) that in making the
examination necessary for certification of such financial statements, nothing
has come to their attention that would lead them to believe that Suburban
Propane has violated any provisions of Article 4 or Article 5 hereof or, if any
such
45
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) So long as any of the Notes are outstanding, Suburban Propane will
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action Suburban Propane is taking or proposes to take with
respect thereto.
Section 4.05 Taxes.
Suburban Propane will pay, and will cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.
Section 4.06 Stay, Extension and Usury Laws.
Each of Suburban Propane and Finance Corp. covenants (to the extent
that it may lawfully do so) that it will 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,
that may affect the covenants or the performance of this Indenture; and Suburban
Propane, Finance Corp. and each of the Guarantors, if any, (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
has been enacted.
Section 4.07 Restricted Payments.
(a) Suburban Propane will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or
distribution on account of Suburban Propane's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving
Suburban Propane or any of its Restricted Subsidiaries) or to the
direct or indirect holders of Suburban Propane's or any of its
Restricted Subsidiaries' Equity Interests in their capacity as such
(other than dividends or distributions payable in Equity Interests
(other than Disqualified Stock) of Suburban Propane or to Suburban
Propane or a Restricted Subsidiary of Suburban Propane);
(2) purchase, redeem or otherwise acquire or retire for value
(including without limitation, in connection with any merger or
consolidation involving Suburban Propane) any Equity Interests of
Suburban Propane;
(3) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness of Suburban Propane that is contractually subordinated to
the Notes (excluding any intercompany Indebtedness between or among
Suburban Propane and any of its Restricted Subsidiaries), except a
payment of interest or principal at the Stated Maturity of such
Indebtedness; or
46
(4) make any Restricted Investment (all such payments and
other actions set forth in these clauses (1) through (4) above being
collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such
Restricted Payment:
(1) no Default or Event of Default has occurred and is
continuing or would occur as a consequence of such Restricted Payment;
and
(2) the Restricted Payment, together with the aggregate of all
other Restricted Payments made by Suburban Propane and its Restricted
Subsidiaries during the fiscal quarter during which the Restricted
Payment is made (excluding Restricted Payments permitted by clauses
(2), (3), (4) and (6) of Section 4.07(b)), will not exceed:
(a) if the Consolidated Fixed Charge Coverage Ratio
of Suburban Propane is greater than 1.75 to 1.00, an amount
equal to Available Cash for the immediately preceding fiscal
quarter; or
(b) if the Consolidated Fixed Charge Coverage Ratio
of Suburban Propane is equal to or less than 1.75 to 1.00, an
amount equal to the sum of:
(A) $20.0 million, less
(B) the aggregate amount of all Restricted Payments
made by Suburban Propane and its Restricted Subsidiaries in
accordance with this clause (2)(b) during the period ending on
the last day of the fiscal quarter of Suburban Propane
immediately preceding the date of the Restricted Payment and
beginning on the date of this Indenture, plus
(C) the aggregate net cash proceeds of capital
contributions to Suburban Propane from any Person other than a
Restricted Subsidiary of Suburban Propane, or issuance and
sale of shares of Capital Stock, other than (i) Disqualified
Stock and (ii) Capital Stock issued concurrently with the
offering of the Notes, of Suburban Propane to any entity other
than to a Restricted Subsidiary of Suburban Propane, in any
case made during the period ending on the last day of the
fiscal quarter of Suburban Propane immediately preceding the
date of the Restricted Payment and beginning on the date of
this Indenture.
(b) So long as no Default has occurred and is continuing or would be
caused thereby, the provisions of Section 4.07(a) will not prohibit:
(1) the payment of any distribution or dividend within 60 days
after the date of its declaration, if at the date of declaration the
distribution or dividend payment would have complied with the
provisions of this Indenture;
(2) the making of any Restricted Payment in exchange for, or
out of the net cash proceeds of the substantially concurrent sale
(other than to a Subsidiary of Suburban Propane) of, Equity Interests
of Suburban Propane (other than Disqualified Stock) or from the
substantially concurrent contribution of common equity capital to
Suburban Propane by any entity other than a Subsidiary of Suburban
Propane; provided, however, that the amount of any net cash proceeds
that are utilized for any such Restricted Payment will be excluded from
the calculation of Available Cash and from the calculation set forth in
clause (2)(b) of Section 4.07(a);
47
(3) the defeasance, redemption, repurchase or other
acquisition of Indebtedness of the Issuers that is contractually
subordinated to the Notes with the net cash proceeds from a
substantially concurrent incurrence of Permitted Refinancing
Indebtedness; provided, however, that the amount of any net cash
proceeds that are utilized for any such Restricted Payment will be
excluded from the calculation of Available Cash;
(4) the payment of any dividend (or, in the case of any
partnership or limited liability company, any similar distribution) by
a Restricted Subsidiary of Suburban Propane to the holders of its
Equity Interests on a pro rata basis;
(5) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of Suburban Propane or any
Restricted Subsidiary of Suburban Propane held by any current or former
officer, director or employee of Suburban Propane or any of its
Restricted Subsidiaries pursuant to any restricted unit plan, equity
subscription agreement, equity option agreement, shareholders'
agreement or similar agreement; provided that the aggregate price paid
for all such repurchased, redeemed, acquired or retired Equity
Interests may not exceed $1.0 million in any calendar year; and
(6) the repurchase of Equity Interests deemed to occur upon
the exercise of unit or stock options to the extent such Equity
Interests represent a portion of the exercise price of those options.
The amount of all Restricted Payments (other than cash) will be the
Fair Market Value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by Suburban Propane or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The Fair Market Value of any assets or securities that are required to be valued
by this Section 4.07 will be determined by the Board of Supervisors of Suburban
Propane whose resolution with respect thereto shall be delivered to the Trustee.
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.
(a) Suburban Propane will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or permit to exist or
become effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its
Capital Stock to Suburban Propane or any of its Restricted Subsidiaries
or with respect to any other interest or participation in, or measured
by, its profits, or pay any indebtedness owed to Suburban Propane or
any of its Restricted Subsidiaries;
(2) make loans or advances to Suburban Propane or any of its
Restricted Subsidiaries; or
(3) transfer any of its properties or assets to Suburban
Propane or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) will not apply to encumbrances
or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and Credit
Facilities as in effect on the date of this Indenture and any
amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings of those
agreements; provided that the
48
amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacement or refinancings are not materially
more restrictive, taken as a whole, with respect to such dividend and
other payment restrictions than those contained in those agreements on
the date of this Indenture;
(2) this Indenture and the Notes;
(3) restrictions in other Indebtedness incurred in compliance
with the Section 4.09; provided such restrictions, taken as a whole,
are not materially more restrictive than those contained in the
agreements described above;
(4) applicable law, rule, regulation or order;
(5) customary non-assignment provisions in contracts and
licenses entered into in the ordinary course of business;
(6) purchase money obligations for property acquired in the
ordinary course of business and Capital Lease Obligations that impose
restrictions on the property purchased or leased of the nature
described in clause (3) of Section 4.08(a);
(7) any agreement or instrument governing Acquired Debt, 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 or assets of the Person so acquired;
(8) any agreement for the sale or other disposition of a
Restricted Subsidiary that restricts distributions by that Restricted
Subsidiary pending the sale or other disposition;
(9) Liens permitted to be incurred under the provisions of
Section 4.12 hereof that limit the right of the debtor to dispose of
the assets subject to such Liens;
(10) provisions limiting the disposition or distribution of
assets or property in joint venture agreements, asset sale agreements,
sale-leaseback agreements, stock sale agreements and other similar
agreements entered into with the approval of Suburban Propane's Board
of Supervisors, which limitation is applicable only to the assets that
are the subject of such agreements; and
(11) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business.
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.
(a) Suburban Propane will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness (including Acquired Debt), and Suburban Propane will not issue any
Disqualified Stock and will not permit any of its Restricted Subsidiaries to
issue any shares of Preferred Stock; provided, however, that Suburban Propane
may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock and
Suburban Propane's Restricted Subsidiaries may incur Indebtedness or issue
Preferred Stock, if the Consolidated Fixed Charge Coverage Ratio for Suburban
Propane's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock or Preferred
Stock is issued would have been at least
49
2.0 to 1, determined on a pro forma basis (including a pro forma application of
the net proceeds therefrom), as if the additional Indebtedness had been incurred
or Disqualified Stock or Preferred Stock had been issued, as the case may be, at
the beginning of such four-quarter period.
(b) The provisions of Section 4.09(a) will not prohibit the incurrence
of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(1) the incurrence by Suburban Propane and any of its
Restricted Subsidiaries of additional Indebtedness and letters of
credit under Credit Facilities in an aggregate principal amount at any
one time outstanding under this clause (1) (with letters of credit
being deemed to have a principal amount equal to the maximum potential
liability of Suburban Propane and its Restricted Subsidiaries
thereunder) not to exceed the greater of:
(a) $75.0 million less the aggregate amount of all
Net Proceeds of Asset Sales applied by Suburban Propane or any of its
Restricted Subsidiaries since the date of this Indenture to repay any
term Indebtedness under a Credit Facility or to repay any revolving
credit Indebtedness under a Credit Facility and effect a corresponding
commitment reduction thereunder pursuant to Section 4.10 hereof; or
(b) the amount of the Borrowing Base as of the date
of such incurrence;
(2) the incurrence by Suburban Propane and any of its
Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Issuers of Indebtedness represented
by the Notes to be issued on the date of this Indenture and the
Exchange Notes to be issued pursuant to the Registration Rights
Aagreement;
(4) Indebtedness of Suburban Propane and any of its Restricted
Subsidiaries (including Capital Lease Obligations and Acquired Debt)
incurred for the making of expenditures for the improvement or repair,
to the extent the improvements or repairs may be capitalized in
accordance with GAAP, or additions, including by way of acquisitions of
businesses and related assets, to the property and assets of Suburban
Propane and its Restricted Subsidiaries, including, without limitation,
the acquisition of assets subject to operating leases or incurred by
assumption in connection with additions, including additions by way of
acquisitions or capital contributions of businesses and related assets,
to the property and assets of Suburban Propane and its Restricted
Subsidiaries; provided that the aggregate principal amount of
Indebtedness outstanding at any time pursuant to this clause (4), may
not exceed $100.0 million at any one time outstanding;
(5) the incurrence by Suburban Propane and any of its
Restricted Subsidiaries of Permitted Refinancing Indebtedness in
exchange for, or the net proceeds of which are used to refund,
refinance, replace, defease or discharge, Indebtedness that was
permitted by this Indenture to be incurred under Section 4.09(a) or
clause (2), (3) or (5) of this Section 4.09(b);
(6) the incurrence by Suburban Propane and any of its
Restricted Subsidiaries of intercompany Indebtedness between or among
Suburban Propane and any of its Restricted Subsidiaries; provided,
however, that:
(a) if an Issuer is an obligor on such Indebtedness
and the payee is not an Issuer, such Indebtedness must be expressly
subordinated to the prior payment in full in cash of all Obligations
then due with respect to the Notes; and
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(b) (i) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a Person
other than Suburban Propane or a Restricted Subsidiary of Suburban
Propane and (ii) any sale or other transfer of any such Indebtedness to
a Person that is not either Suburban Propane or a Restricted Subsidiary
of Suburban Propane, will be deemed, in each case, to constitute an
incurrence of such Indebtedness by Suburban Propane or such Restricted
Subsidiary, as the case may be, that was not permitted by this clause
(6);
(7) the issuance by any of Suburban Propane's Restricted
Subsidiaries to Suburban Propane or to any of its Restricted
Subsidiaries of units or shares of Preferred Stock; provided, however,
that:
(a) any subsequent issuance or transfer of Equity
Interests that results in any such Preferred Stock being held by a
Person other than Suburban Propane or a Restricted Subsidiary of
Suburban Propane; and
(b) any sale or other transfer of any such Preferred
Stock to a Person that is not either Suburban Propane or a Restricted
Subsidiary of Suburban Propane will be deemed, in each case, to
constitute an issuance of such Preferred Stock by such Restricted
Subsidiary that was not permitted by this clause (7);
(8) the incurrence by Suburban Propane and any of its
Restricted Subsidiaries of Hedging Obligations in the ordinary course
of business;
(9) the guarantee by the Issuers or any of their Restricted
Subsidiaries of Indebtedness of the Issuers or a Restricted Subsidiary
of the Issuers that was permitted to be incurred by another provision
of this covenant; provided that if the Indebtedness being guaranteed is
incurred by one or both of the Issuers and is subordinated to the
Notes, then the guarantee of such Indebtedness by any Restricted
Subsidiary of the Issuers shall be subordinated to the same extent as
the Indebtedness guaranteed;
(10) the incurrence by Suburban Propane or any of its
Restricted Subsidiaries of Indebtedness arising from the honoring by a
bank or other financial institution of a check, draft or similar
instrument drawn against insufficient funds, so long as such
Indebtedness is covered within five Business Days;
(11) the incurrence by Suburban Propane or any of its
Restricted Subsidiaries of Indebtedness arising from performance bonds,
bid bonds, bankers' acceptances, workers' compensation, health,
disability or other employee benefit claims, surety or appeal bonds,
payment obligations in connection with self-insurance or similar
obligations and bank overdrafts (and letters of credit in respect
thereof) incurred in the ordinary course of business;
(12) the incurrence by Suburban Propane or any of its
Restricted Subsidiaries of Indebtedness arising from indemnities or
other similar obligations in respect of purchase price adjustments in
connection with the disposition of property or assets; and
(13) the incurrence by Suburban Propane or any of its
Restricted Subsidiaries of additional Indebtedness in an aggregate
principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness incurred
to refund, refinance, replace, defease or discharge any Indebtedness
incurred pursuant to this clause (13), not to exceed $10.0 million.
51
The Issuers will not incur any Indebtedness (including Permitted Debt)
that is contractually subordinated in right of payment to any other Indebtedness
of the Issuers unless such Indebtedness is also contractually subordinated in
right of payment to the Notes on substantially identical terms; provided,
however, that no Indebtedness will be deemed to be contractually subordinated in
right of payment to any other Indebtedness of the Issuers solely by virtue of
being unsecured or by virtue of being secured on a first or junior Lien basis.
For purposes of determining compliance with this Section 4.09, in the event that
an item of proposed Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (1) through (13) above, or is
entitled to be incurred pursuant to Section 4.09(a), the Issuers will be
permitted to classify such item of Indebtedness on the date of its incurrence,
or later reclassify all or a portion of such item of Indebtedness, in any manner
that complies with this Section 4.09. Indebtedness under Credit Facilities
outstanding on the date on which Notes are first issued and authenticated under
this Indenture will initially be deemed to have been incurred on such date in
reliance on the exception provided by clause (1) of the definition of Permitted
Debt. The accrual of interest, the accretion or amortization of original issue
discount, the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, and the payment of dividends on Disqualified
Stock in the form of additional shares of the same class of Disqualified Stock
will not be deemed to be an incurrence of Indebtedness or an issuance of
Disqualified Stock for purposes of this Section 4.09. Notwithstanding any other
provision of this Section 4.09, the maximum amount of Indebtedness that Suburban
Propane or any Restricted Subsidiary may incur pursuant to this Section 4.09
shall not be deemed to be exceeded solely as a result of fluctuations in
exchange rates or currency values.
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of
any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a
Lien on the assets of the specified Person, the lesser of:
(a) the Fair Market Value of such asset at the date
of determination, and
(b) the amount of the Indebtedness of the other
Person.
Section 4.10 Asset Sales.
Suburban Propane will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) Suburban Propane (or the Restricted Subsidiary, as the
case may be) receives consideration at the time of the Asset Sale at
least equal to the Fair Market Value of the assets or Equity Interests
issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset
Sale by Suburban Propane or such Restricted Subsidiary is in the form
of cash. For purposes of this provision, each of the following will be
deemed to be cash:
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(a) any liabilities, as shown on Suburban Propane's
most recent consolidated balance sheet, of Suburban Propane or any
Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes) that are
assumed by the transferee of any such assets pursuant to a customary
novation agreement that releases Suburban Propane or such Restricted
Subsidiary from further liability;
(b) any securities, notes or other obligations
received by Suburban Propane or any such Restricted Subsidiary from
such transferee that are converted within 180 days after the date of
consummation of such Asset Sale by Suburban Propane or such Restricted
Subsidiary into cash, to the extent of the cash received in that
conversion; and
(c) any stock or assets of the kind referred to in
clauses (2) or (4) of the next paragraph of this Section 4.10.
The 75% limitation in clause (2) above will not apply to any Asset Sale in which
the cash portion of the consideration received is equal to or greater than the
after-tax proceeds would have been had the Asset Sale complied with the 75%
limitation.
Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, Suburban Propane (or the applicable Restricted Subsidiary, as the case may
be) may apply those Net Proceeds:
(1) to repay Indebtedness of Suburban Propane under a Credit
Facility or to repay any Indebtedness of any Restricted Subsidiary of
Suburban Propane and, if the Indebtedness repaid is revolving credit
Indebtedness, to correspondingly reduce commitments with respect
thereto;
(2) to acquire, or commit to acquire within 90 days thereof,
all or substantially all of the assets of, or any Capital Stock of,
another Permitted Business, if, after giving effect to any such
acquisition of Capital Stock, the Permitted Business is or becomes a
Restricted Subsidiary of Suburban Propane;
(3) to make a capital expenditure; and/or
(4) to acquire, or commit to acquire within 90 days thereof,
other assets that are not classified as current assets under GAAP and
that are used or useful in a Permitted Business.
Pending the final application of any Net Proceeds, Suburban Propane or any
Restricted Subsidiary may temporarily reduce revolving credit borrowings or
otherwise invest the Net Proceeds in any manner that is not prohibited by this
Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the preceding paragraph will constitute "Excess Proceeds." When the
aggregate amount of Excess Proceeds exceeds $15.0 million, the Issuers will make
an Asset Sale Offer to all Holders of Notes and all holders of other
Indebtedness that is pari passu with the Notes containing provisions similar to
those set forth in this Indenture with respect to offers to purchase or redeem
with the proceeds of sales of assets to purchase the maximum principal amount of
Notes and such other pari passu Indebtedness that may be purchased out of the
Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100%
of the principal amount plus accrued and unpaid interest and Liquidated Damages,
if any, to the date of purchase, and will be payable in cash. If any Excess
Proceeds remain after consummation of an Asset Sale Offer, the Issuers may use
those Excess Proceeds for any purpose not otherwise prohibited by this
Indenture. If the aggregate principal amount of Notes and other pari passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Trustee will select the Notes and such other pari passu
53
Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset
Sale Offer, the amount of Excess Proceeds will be reset at zero.
The Issuers will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with Sections 3.10 or
4.10 of this Indenture, the Issuers will comply with the applicable securities
laws and regulations and will not be deemed to have breached their obligations
Section 3.10 or 4.10 of this Indenture by virtue of such conflict.
Section 4.11 Transactions with Affiliates.
(a) Suburban Propane will not, and will not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate of Suburban Propane (each, an "Affiliate
Transaction"), unless:
(1) the Affiliate Transaction is on terms that are no less
favorable to Suburban Propane or the relevant Restricted Subsidiary
than those that would have been obtained in a comparable transaction by
Suburban Propane or such Restricted Subsidiary with an unrelated
Person; and
(2) Suburban Propane delivers to the Trustee, with respect to
any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $10.0 million, a
resolution of the Board of Supervisors set forth in an Officers'
Certificate certifying that such Affiliate Transaction complies with
this Section 4.11(a) and that such Affiliate Transaction has been
approved by a majority of the disinterested members of the Board of
Supervisors.
(b) The following items will not be deemed to be Affiliate Transactions
and, therefore, will not be subject to the provisions of Section 4.11(a):
(1) any employment agreement, employee benefit plan, officer
and director indemnification agreement or any similar arrangement
entered into by Suburban Propane or any of its Restricted Subsidiaries
in the ordinary course of business;
(2) transactions between or among Suburban Propane and/or its
Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted
Subsidiary of Suburban Propane) that is an Affiliate of Suburban
Propane solely because Suburban Propane owns, directly or through a
Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) payment of supervisors' or directors' fees and
compensation to Persons who are not otherwise Affiliates of Suburban
Propane;
(5) any issuance of Equity Interests (other than Disqualified
Stock) of Suburban Propane to Affiliates of Suburban Propane;
(6) Restricted Payments that do not violate Section 4.07
hereof;
(7) loans or advances to employees in the ordinary course of
business not to exceed $1.0 million in the aggregate at any one time
outstanding;
54
(8) any Affiliate Transaction which constitutes a Permitted
Investment;
(9) any arm's-length transaction with a non-Affiliate that
becomes an Affiliate as a result of such transaction; and
(10) the payment of expenses and indemnification or
contribution obligations of any Person pursuant to Suburban Propane's
partnership agreement or the Operating Partnership's partnership
agreement, in each case as in effect on the date of this Indenture.
Section 4.12 Liens.
Suburban Propane will not create, incur, assume or suffer to exist any
Lien securing Indebtedness incurred by Suburban Propane of any kind on any asset
now owned or hereafter acquired, except Permitted Liens.
Section 4.13 Business Activities.
Suburban Propane will not, and will not permit any of its Restricted
Subsidiaries to, engage in any business other than Permitted Businesses, except
to such extent as would not be material to Suburban Propane and its Restricted
Subsidiaries taken as a whole.
Section 4.14 Corporate Existence.
Subject to Article 5 hereof, Suburban Propane shall do or cause to be
done all things necessary to preserve and keep in full force and effect:
(1) its limited partnership or corporate existence, and the
corporate, partnership or other existence of each of its Subsidiaries,
in accordance with the respective organizational documents (as the same
may be amended from time to time) of Suburban Propane or any such
Subsidiary; and
(2) the rights (charter and statutory), licenses and
franchises of Suburban Propane and its Subsidiaries;
provided, however, that Suburban Propane shall not be required to preserve any
such right, license or franchise, or the corporate, partnership or other
existence of any of its Subsidiaries, if its Board of Supervisors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of Suburban Propane and its Subsidiaries, taken as a whole, and
that the loss thereof is not adverse in any material respect to the Holders of
the Notes.
Section 4.15 Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Issuers will make
an offer (a "Change of Control Offer") to each Holder to repurchase all or any
part (equal to $1,000 or an integral multiple of $1,000) of each Holder's Notes
at a purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, on the Notes
repurchased, if any, to the date of purchase, subject to the rights of Holders
on the relevant record date to receive interest due on the relevant interest
payment date (the "Change of Control Payment"). Within 30 days following any
Change of Control, the Issuers will mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and stating:
55
(1) that the Change of Control Offer is being made pursuant to
this Section 4.15 and that all Notes tendered will be accepted for
payment;
(2) the purchase price and the purchase date, which shall be
no earlier than 30 days and no later than 60 days from the date such
notice is mailed (the "Change of Control Payment Date");
(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" attached to
the Notes completed, or transfer by book-entry transfer, 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 the 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.
The Issuers will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change in Control. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.15, the Issuers will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under this Section 4.15 by virtue of such compliance.
(b) On the Change of Control Payment Date, the Issuers will, to the
extent lawful:
(1) accept for payment all Notes or portions of Notes properly
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 of Notes
properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes
so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions of Notes being
purchased by the Issuers.
The Paying Agent will promptly mail (but in any case not later than
five Business Days after the Change of Control Payment Date) to each Holder of
Notes properly tendered the Change of Control Payment for such Notes, and the
Trustee will promptly authenticate and mail (or cause to be transferred
56
by book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; provided that each new
Note will be in a principal amount of $1,000 or an integral multiple of $1,000.
(c) Notwithstanding anything to the contrary in this Section 4.15, the
Issuers will not be required to make a Change of Control Offer upon a Change of
Control if (1) a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in this
Section 4.15 and purchases all Notes validly tendered and not withdrawn under
the Change of Control Offer, or (2) notice of redemption has been given pursuant
to Section 3.07 hereof, unless and until there is a default in payment of the
applicable redemption price.
Section 4.16 Limitation on Sale and Leaseback Transactions.
Suburban Propane will not, and will not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided that
Suburban Propane or any Restricted Subsidiary may enter into a sale and
leaseback transaction if Suburban Propane or that Restricted Subsidiary would be
permitted under this Indenture to incur Indebtedness secured by a Lien on the
property in an amount equal to the Attributable Debt with respect to such sale
and leaseback transaction.
Section 4.17 Limitation on Issuances of Guarantees of Indebtedness.
Suburban Propane will not permit any of its Restricted Subsidiaries,
directly or indirectly, to Guarantee or pledge any assets to secure the payment
of any other Indebtedness of Suburban Propane unless such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture
providing for the Guarantee of the payment of the Notes by such Restricted
Subsidiary. The Subsidiary Guarantee will be (1) senior to such Restricted
Subsidiary's Guarantee of or pledge to secure such other Indebtedness if such
other Indebtedness is subordinated to the Notes; or (2) pari passu with such
Restricted Subsidiary's Guarantee of or pledge to secure such other Indebtedness
if such other Indebtedness is not subordinated to the Notes.
The Subsidiary Guarantee of a Guarantor will be automatically and
unconditionally released:
(1) in connection with any sale or other disposition of all or
substantially all of the assets of that Guarantor (including by way of
merger or consolidation) to a Person that is not (either before or
after giving effect to such transaction) Suburban Propane or a
Restricted Subsidiary of Suburban Propane, if the sale or other
disposition does not violate Sections 3.10 or 4.10 of this Indenture;
(2) in connection with any sale or other disposition of all of
the Capital Stock of that Guarantor to a Person that is not (either
before or after giving effect to such transaction) Suburban Propane or
a Restricted Subsidiary of Suburban Propane, if the sale or other
disposition does not violate Sections 3.10 or 4.10 of this Indenture;
(3) if Suburban Propane designates any Restricted Subsidiary
that is a Guarantor to be an Unrestricted Subsidiary in accordance with
the applicable provisions of this Indenture;
(4) upon legal defeasance or satisfaction and discharge of the
Notes as provided in Section 8.02 and Article 11 of this Indenture; or
(5) if such Guarantor is released from the underlying
guarantee of Indebtedness giving rise to the execution of a Subsidiary
Guarantee.
57
The form of the Subsidiary Guarantee and the related form of
supplemental indenture is attached hereto as Exhibits E and F, respectively.
Notwithstanding the foregoing, if one or both of the Issuers Guarantee
Indebtedness incurred by any of their Restricted Subsidiaries, such Guarantee by
the Issuers will not require any Restricted Subsidiary to provide a Subsidiary
Guarantee for the Notes.
Section 4.18 Payments for Consent.
Suburban Propane will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
and is paid to all Holders of the Notes that consent, waive or agree to amend in
the time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
Section 4.19 Existence of Corporate Co-Issuer.
Suburban Propane will always maintain, directly or indirectly, a
wholly-owned Restricted Subsidiary of Suburban Propane organized as a
corporation under the laws of the United States of America, any state thereof or
the District of Columbia that will serve as a co-obligor of the Notes unless
Suburban Propane is itself a corporation under the laws of the United States of
America, any state thereof or the District of Columbia.
Section 4.20 Designation of Restricted and Unrestricted Subsidiaries.
The Board of Supervisors of Suburban Propane may designate any of its
Restricted Subsidiaries, other than the Operating Partnership or Finance Corp.,
to be an Unrestricted Subsidiary if that designation would not cause a Default.
That designation will only be permitted if the Investment would be permitted at
that time and if the Restricted Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary. The Board of Supervisors may redesignate any
Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation
would not cause a Default.
Any designation of a Subsidiary of Suburban Propane as an Unrestricted
Subsidiary will be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
preceding conditions. If, at any time, any Unrestricted Subsidiary would fail to
meet the preceding requirements as an Unrestricted Subsidiary, it will
thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture
and any Indebtedness of such Subsidiary will be deemed to be incurred by a
Restricted Subsidiary of Suburban Propane as of such date and, if such
Indebtedness is not permitted to be incurred as of such date under Section 4.09
hereof, Suburban Propane will be in default of such covenant. The Board of
Supervisors of Suburban Propane may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that such designation will be
deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of
Suburban Propane of any outstanding Indebtedness of such Unrestricted Subsidiary
and such designation will only be permitted if (1) such Indebtedness is
permitted by Section 4.09 hereof, calculated on a pro forma basis as if such
designation had occurred at the beginning of the four-quarter reference period;
and (2) no Default or Event of Default would be in existence following such
designation.
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ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
Neither of the Issuers may , directly or indirectly: (1) consolidate or
merge with or into another Person (whether or such Issuer is the surviving
entity); or (2) sell, assign, transfer, convey or otherwise dispose of all or
substantially all of the properties or assets of such Issuer and its Restricted
Subsidiaries taken as a whole, in one or more related transactions, to another
Person; unless:
(1) either:
(a) such Issuer is the surviving entity; or
(b) (i) the Person formed by or surviving any such
consolidation or merger with Suburban Propane (if other than Suburban
Propane) or to which such sale, assignment, transfer, conveyance or
other disposition has been made is a corporation, partnership or
limited liability company organized or existing under the laws of the
United States, any state of the United States or the District of
Columbia; or (ii) the Person formed by or surviving any such
consolidation or merger with Finance Corp. (if other than Finance
Corp.) or to which such sale, assignment, transfer, conveyance or other
disposition has been made is a corporation organized under the laws of
the United States, any state of the United States or the District of
Columbia;
(2) the Person formed by or surviving any such consolidation
or merger (if other than such Issuer) or the Person to which such sale,
assignment, transfer, conveyance or other disposition has been made
assumes all the obligations of such Issuer under the Notes, this
Indenture and the Registration Rights Agreement pursuant to agreements
reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of
Default exists; and
(4) such Issuer or the Person formed by or surviving any such
consolidation or merger (if other than such Issuer), or to which such
sale, assignment, transfer, conveyance or other disposition has been
made will, on the date of such transaction after giving pro forma
effect thereto and any related financing transactions as if the same
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 4.09(a) hereof.
If Suburban Propane engages in a merger, consolidation or sale of
assets in accordance with the provisions described above, Suburban Propane or
the Person formed by or surviving such transaction will comply with Section 4.20
hereof.
In addition, the Issuers will not, directly or indirectly, lease all or
substantially all of their properties or assets, in one or more related
transactions, to any other Person. This Section 5.01 will not apply to:
(1) a merger of Suburban Propane with an Affiliate solely for
the purpose of re-forming Suburban Propane in another jurisdiction; and
(2) any sale, transfer, assignment, conveyance, lease or other
disposition of assets between or among Suburban Propane and its
Restricted Subsidiaries.
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Notwithstanding the foregoing, Suburban Propane shall be permitted to
reorganize as a corporation in accordance with the terms of this Indenture,
provided that Suburban Propane shall have delivered to the Trustee an Opinion of
Counsel in the United States reasonably acceptable to the Trustee confirming
that such reorganization is not adverse to Holders of the Notes (it being
recognized that such reorganization shall not be deemed adverse to the Holders
of the Notes solely because (i) of the accrual of deferred tax liabilities
resulting from such reorganization or (ii) the successor or surviving
corporation (a) is subject to income tax as a corporate entity or (b) is
considered to be an "includible corporation" of an affiliated group of
corporations within the meaning of the Internal Revenue Code of 1986, as
amended, or any similar state or local law).
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
conveyance or other disposition of all or substantially all of the assets of
Suburban Propane in a transaction that is subject to, and that complies with the
provisions of, Section 5.01 hereof, the successor entity formed by such
consolidation or into or with which Suburban Propane is merged or to which such
sale, assignment, transfer, 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, conveyance or other disposition, the provisions of
this Indenture referring to "Suburban Propane" shall refer instead to the
successor entity and not Suburban Propane), and may exercise every right and
power of Suburban Propane under this Indenture with the same effect as if such
successor entity had been named as Suburban Propane herein; provided, however,
that the predecessor Suburban Propane shall not be relieved from the obligation
to pay the principal of and interest on the Notes except in the case of a sale
of all of Suburban Propane's assets in a transaction that is subject to, and
that complies with the provisions of, Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following is an "Event of Default":
(1) Suburban Propane defaults for 30 days in the payment when
due of interest on, or Liquidated Damages with respect to, the Notes;
(2) Suburban Propane defaults in the payment when due (at
maturity, upon redemption or otherwise) of the principal of, or
premium, if any, on the Notes;
(3) failure by Suburban Propane or any of its Restricted
Subsidiaries to comply with any other term, covenant or agreement
contained in the Notes or this Indenture, other than a default
specified in either clause (1) or (2) above, and the default continues
for a period of 45 days after written notice of default requiring the
Issuers to remedy the same is given to Suburban Propane by the Trustee
or by Holders of 25% in aggregate principal amount of the Notes then
outstanding;
(4) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the stated
principal amount of any Indebtedness of Suburban Propane or any
Restricted Subsidiary of Suburban Propane, or the acceleration of the
final Stated Maturity of any such Indebtedness if the aggregate
principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay
principal at final Stated Maturity or which has been accelerated,
aggregates $10.0 million or more at any time;
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(5) [Reserved];
(6) 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 Suburban
Propane or any of its Restricted Subsidiaries; provided such judgment
or judgments requires or require the payment of money in excess of
$10.0 million in the aggregate and is not covered by insurance or
discharged or stayed pending appeal or review within 60 days after
entry of such judgment; in the event of a stay, the judgment shall not
be discharged within 30 days after the stay expires; and
(7) Suburban Propane, Finance Corp. or any Significant
Subsidiary of Suburban Propane pursuant to or within the meaning of
Bankruptcy Law:
(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, or
(E) generally is not paying its debts as they become
due; or
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against Suburban Propane, Finance
Corp. or any Significant Subsidiary of Suburban Propane in an
involuntary case;
(B) appoints a custodian of Suburban Propane, Finance
Corp. or any Significant Subsidiary of Suburban Propane or for
all or substantially all of the property of Suburban Propane,
Finance Corp. or any Significant Subsidiary of Suburban
Propane; or
(C) orders the liquidation of Suburban Propane,
Finance Corp. or any Significant Subsidiary of Suburban
Propane;
and the order or decree remains unstayed and in effect for 60
consecutive days.
Section 6.02 Acceleration.
In the case of an Event of Default specified in clause (7) or (8) of
Section 6.01 hereof, with respect to Suburban Propane, Finance Corp. or any
Significant Subsidiary of Suburban Propane, all outstanding Notes will become
due and payable immediately without further action or notice. If any other 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.
Upon any such declaration, the Notes shall become due and payable
immediately.
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The Holders of a majority in aggregate principal amount of the then
outstanding Notes by written notice to the Trustee may, on behalf of all of the
Holders, rescind an acceleration or waive any existing Default or Event of
Default and its consequences:
(1) if the rescission would not conflict with any judgment or
decree;
(2) if all existing Events of Default (except nonpayment of
principal, interest or premium or Liquidated Damages, if any, that has
become due solely because of the acceleration) have been cured or
waived;
(3) to the extent the payment of such interested is lawful, if
interest on overdue installments of interest and overdue principal that
has become due otherwise than by such declaration of acceleration has
been paid;
(4) if the Issuers have paid the Trustee its reasonable
compensation and reimbursed the Trustee for its expenses, disbursements
and advances; and
(5) in the event of the cure or waiver of an Event of Default
of the type described in clause (7) or (8) of Section 6.01, if the
Trustee shall have received an Officers' Certificate stating that such
Event of Default has been cured or waived.
No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium and Liquidated
Damages, if any, and interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
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 a Note in exercising any right or
remedy 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.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes by notice to the Trustee may on behalf of the Holders
of all of the Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium and Liquidated Damages, if any, or interest
on, the Notes (including in connection with an offer to purchase); provided,
however, that the Holders of a majority in aggregate principal amount of the
then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration. 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.
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Section 6.05 Control by Majority.
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising 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.
Section 6.06 Limitation on Suits.
A Holder may pursue a remedy with respect to this Indenture or the
Notes only if:
(1) the Holder of a Note gives to the Trustee written notice
that an Event of Default is continuing;
(2) 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 security or indemnity reasonably 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 of security or
indemnity, if requested; and
(5) during such 60-day period the Holders of a majority in
aggregate principal amount of the then outstanding Notes do not give
the Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.07 Rights of Holders of Notes 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 Liquidated
Damages, if any, and interest on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), 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.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(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 Suburban Propane for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent lawful,
interest 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.
Section 6.09 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
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compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders of the Notes allowed in any judicial proceedings
relative to Suburban Propane (or any other obligor upon the Notes), its
creditors or its 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 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, 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 7.07 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 7.07 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 that the Holders 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 any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation,
expenses 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 and Liquidated Damages, if any, and
interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal,
premium and Liquidated Damages, if any and interest, respectively; and
Third: to Suburban Propane 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 pursuant to this Section 6.10.
Section 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 and expenses, 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 6.11 does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.
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ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
will exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will 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; and
(2) 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, in the case of certificates or opinions
specifically required by any provision of this Indenture to be
furnished to the Trustee, the Trustee will examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) 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:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
(2) the Trustee will 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; and
(3) the Trustee will 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 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to expend
or risk its own funds or incur any liability. The Trustee will be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder has offered to the Trustee security
and indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee will not be liable for interest on any money received
by it except as the Trustee may agree in writing with Suburban Propane. Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
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Section 7.02 Rights of Trustee.
(a) 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.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee will 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 will be
full and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through its attorneys and agents and will not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee will not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from Suburban Propane will be sufficient if
signed by an Officer of Suburban Propane.
(f) The Trustee will be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
(g) The Trustee shall not be charged with knowledge of any Default or
Event of Default under Section 6.01 (other than under Section 6.01(a) (subject
to the following sentence) or Section 6.01(b)) unless either (i) a Responsible
Officer shall have actual knowledge thereof, or (ii) the Trustee shall have
received notice thereof in accordance with Section 12.02 from either of the
Issuers or any Holder of the Notes. The Trustee shall not be charged with
knowledge of the Issuers' obligation to pay Liquidated Damages, or the cessation
of such obligation, unless the Trustee receives written notice thereof from the
either of the Issuers or any Holder.
(h) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder.
The Trustee may request that the Issuers deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person specified as so
authorized in any such certificate previously delivered and not superseded.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with Suburban Propane or any
Affiliate of Suburban Propane with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the Commission
for permission to
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continue as trustee (if this Indenture has been qualified under the TIA) or
resign. Any Agent may do the same with like rights and duties. The Trustee is
also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee will 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 Suburban Propane's use of the proceeds from the Notes or any
money paid to Suburban Propane or upon Suburban Propane's direction under any
provision of this Indenture, it will not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it will 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.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee will 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 of principal of, premium or
Liquidated Damages, if any, or interest on, any Note, the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders
of the Notes.
Section 7.06 Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee will mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA ss. 313(a) (but if no
event described in TIA ss. 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
will comply with TIA ss. 313(b)(2). The Trustee will also transmit by mail all
reports as required by TIA ss. 313(c).
(b) A copy of each report at the time of its mailing to the Holders of
Notes will be mailed by the Trustee to Suburban Propane and filed by the Trustee
with the Commission and each stock exchange on which the Notes are listed in
accordance with TIA ss. 313(d). Suburban Propane will promptly notify the
Trustee when the Notes are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
(a) Suburban Propane will pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder. The Trustee's compensation will not be limited by any law on
compensation of a trustee of an express trust. Suburban Propane will 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 will include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel.
(b) Suburban Propane and Finance Corp., jointly and severally, will
indemnify the Trustee against any and all losses, liabilities, claims, damages
or expenses incurred by it arising out of or in connection with the acceptance
or administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against Suburban Propane and Finance Corp.
(including this Section 7.07) and defending itself against any claim (whether
asserted by Suburban Propane, Finance Corp., any Holder or any other Person) or
liability in connection with the exercise or performance of any of its
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powers or duties hereunder, except to the extent any such loss, liability claim,
damages or expense may be attributable to its own negligence or bad faith. The
Trustee will notify Suburban Propane and Finance Corp. promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify Suburban
Propane and Finance Corp. will not relieve Suburban Propane or Finance Corp. of
their obligations hereunder. Suburban Propane and Finance Corp. will defend the
claim and the Trustee will cooperate in the defense. The Trustee may have
separate counsel and Suburban Propane will pay the reasonable fees and expenses
of such counsel. Neither Suburban Propane nor Finance Corp. need pay for any
settlement made without its consent, which consent will not be unreasonably
withheld.
(c) The obligations of the Issuers under this Section 7.07 will survive
the satisfaction and discharge of this Indenture.
(d) To secure the Issuers' payment obligations in this Section 7.07,
the Trustee will have 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 will survive the satisfaction and
discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(7) or (8) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIAss. 313(b)(2) to
the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee will become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying Suburban Propane. The Holders of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and Suburban Propane in writing. Suburban
Propane may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(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.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, Suburban Propane will 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
Suburban Propane.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, Suburban
Propane or the Holders of at least 10% in principal amount of
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the then outstanding Notes may petition, at the expense of the Issuers, any
court of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10 hereof, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to Suburban Propane. Thereupon, the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee will mail a notice of its succession
to Holders. The retiring Trustee will 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 7.07
hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, Suburban Propane's obligations under Section 7.07 hereof will continue for
the benefit of the retiring Trustee.
Section 7.09 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 will be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
Section 7.11 Preferential Collection of Claims Against Suburban Propane.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
Suburban Propane may, at the option of its Board of Supervisors
evidenced by a resolution set forth in an Officers' Certificate, and at any
time, elect to have either Section 8.02 or 8.03 hereof be applied to all
outstanding Notes upon compliance with the conditions set forth below in this
Article 8.
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Section 8.02 Legal Defeasance and Discharge.
Upon Suburban Propane's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Issuers will, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from their 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
will be deemed to have paid and discharged the entire Indebtedness represented
by the outstanding Notes, which will thereafter be deemed to be "outstanding"
only for the purposes of Section 8.05 hereof and the other Sections of this
Indenture referred to in clauses (1) and (2) 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 Suburban Propane, shall execute proper
instruments acknowledging the same), except for the following provisions which
will survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of, or interest or premium and
Liquidated Damages, if any, on such Notes when such payments are due
from the trust referred to in Section 8.04 hereof;
(2) Suburban Propane's obligations with respect to such Notes
under Article 2 and Section 4.02 hereof;
(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Issuers' obligations in connection therewith;
and
(4) this Article 8.
Subject to compliance with this Article 8, Suburban Propane may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon Suburban Propane's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Issuers will, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from their obligations under the covenants contained in Sections 3.10, 4.03,
4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 (except with respect to the
existence of each Issuer), 4.15, 4.16, 4.17, 4.18, 4.19 and 4.20 hereof and
clause (4) of Section 5.01 hereof with respect to the outstanding Notes on and
after the date the conditions set forth in Section 8.04 hereof are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes will 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 will continue to be deemed "outstanding" for
all other purposes hereunder (it being understood that such Notes will 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 will 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 to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document and such omission to comply will not constitute a Default or an Event
of Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes will be unaffected thereby. In
addition, upon Suburban Propane's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03 hereof, subject to the satisfaction of
the conditions set forth in Section 8.04 hereof, Section 6.01(3) through 6.01(6)
hereof will not constitute Events of Default.
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Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance
under either Section 8.02 or 8.03 hereof:
(1) the Issuers must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in U.S. dollars,
noncallable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally
recognized investment bank, appraisal firm, or firm of independent
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, and the Issuers must specify whether the Notes are being
defeased to such stated date for payment or to a particular redemption
date;
(2) in the case of an election under Section 8.02 hereof, the
Issuers must deliver to the Trustee an Opinion of Counsel 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;
(3) in the case of Covenant Defeasance, the Issuers must
deliver to the Trustee an Opinion of Counsel 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;
(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit and the grant of any Lien securing such borrowing);
(5) such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
Suburban Propane or any of its Subsidiaries is a party or by which
Suburban Propane or any of its Subsidiaries is bound;
(6) the Issuers must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Issuers with
the intent of preferring the Holders of Notes over the other creditors
of the Issuers with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Issuers or others;
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(7) the Issuers must deliver 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; and
(8) the Issuers shall have delivered to the Trustee an Opinion
of Counsel to the effect that, assuming no intervening bankruptcy of
the Issuers between the date of deposit and the 91st day following the
date of deposit and that no Holder is an insider of either of the
Issuers, after the 91st day following the date of deposit, the trust
funds will not be subject to the effect of any applicable federal
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
Notwithstanding the foregoing, the Opinion of Counsel required by
clause (2) above with respect to a Legal Defeasance need not be delivered if all
Notes not theretofore delivered to the Trustee for cancellation (1) have become
due and payable or (2) will become due and payable on the maturity date within
one year, or are to be called for redemption within one year, under arrangements
reasonably satisfactory to the trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Issuers.
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and noncallable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
will 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 an Issuer 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 and Liquidated Damages, if
any, and interest, but such money need not be segregated from other funds except
to the extent required by law.
The Issuers will pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or noncallable Government
Securities deposited pursuant to Section 8.04 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.
Notwithstanding anything in this Article 8 to the contrary, the Trustee
will deliver or pay to the Issuers from time to time upon the request of the
Issuers any money or noncallable Government Securities held by it as provided in
Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(1) 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.
Section 8.06 Repayment to Suburban Propane.
Any money deposited with the Trustee or any Paying Agent, or then held
by Suburban Propane, in trust for the payment of the principal of, premium or
Liquidated Damages, if any, or interest on any Note and remaining unclaimed for
two years after such principal, premium or Liquidated Damages, if any, or
interest has become due and payable shall be paid to Suburban Propane on its
request or (if then held by Suburban Propane) will be discharged from such
trust; and the Holder of such Note will thereafter be permitted to look only to
Suburban Propane for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Issuers
as trustee thereof, will
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thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of Suburban
Propane cause to be published once, in the New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which will not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Issuers.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or noncallable Government Securities in accordance with Section 8.02 or
8.03 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
will be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if Suburban Propane makes
any payment of principal of, premium or Liquidated Damages, if any, or interest
on any Note following the reinstatement of its obligations, Suburban Propane
will 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.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Issuers and the
Trustee may amend or supplement this Indenture or the Notes without the consent
of any Holder of a Note:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes or to alter the provisions of Article 2
hereof (including the related definitions) in a manner that does not
materially adversely affect any Holder;
(3) to provide for the assumption of the Issuers' obligations
to the Holders of the Notes by a successor to the Issuers pursuant to
Article 5 or Article 10 hereof;
(4) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any Holder of the Note;
(5) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA;
(6) to conform the text of this Indenture or the Notes to any
provision of the "Description of Notes" section of the Issuers'
Offering Memorandum dated December 18, 2003, relating to the initial
offering of the Notes, to the extent that such provision in that
"Description of Notes" was intended to be a verbatim recitation of a
provision of this Indenture or the Notes;
(7) to provide for the issuance of Additional Notes in
accordance with the limitations set forth in this Indenture as of the
date hereof; or
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(8) to allow any Guarantor to execute a supplemental indenture
to this Indenture and/or a Subsidiary Guarantee with respect to the
Notes.
Upon the request of the Issuers accompanied by a resolution of its
Board of Supervisors authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee will join with the Issuers and the
Guarantors, if any, in the execution of any amended or supplemental indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee will not be obligated to enter into such amended or supplemental
indenture that affects its own rights, duties or immunities under this Indenture
or otherwise.
Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, Suburban Propane and the
Trustee may amend or supplement this Indenture (including, without limitation,
Section 3.10, 4.10 and 4.15 hereof) and the Notes with the consent of the
Holders of at least a majority in principal amount of the Notes (including,
without limitation, Additional Notes, if any) then outstanding voting as a
single class (including, without limitation, consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Notes), and,
subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the
principal of, premium or Liquidated Damages, if any, or interest on the Notes,
except a payment default resulting from an acceleration that has been rescinded)
or compliance with any provision of this Indenture, the Subsidiary Guarantees or
the Notes may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes voting as a single class
(including consents obtained in connection with a tender offer or exchange offer
for, or purchase of, the Notes). Section 2.08 hereof shall determine which Notes
are considered to be "outstanding" for purposes of this Section 9.02.
Upon the request of Suburban Propane accompanied by a resolution of its
Board of Supervisors authorizing the execution of any such amended or
supplemental indenture, 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 7.02
hereof, the Trustee will join with the Issuers in the execution of such amended
or supplemental indenture unless such amended or supplemental indenture directly
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but will not be
obligated to, enter into such amended or supplemental Indenture.
It is not necessary for the consent of the Holders of Notes under this
Section 9.02 to approve the particular form of any proposed amendment or waiver,
but it is sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, Suburban Propane will mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of Suburban Propane to mail such notice, or any defect therein, will
not, however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding voting as a single class may waive compliance in a particular
instance by Suburban Propane with any provision of this Indenture or the Notes.
However, without the consent of each Holder affected, an amendment, supplement
or waiver under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
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(1) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of
any Note or alter or waive any of the provisions with respect to the
redemption of the Notes, except as provided above with respect to
Sections 3.10, 4.10 and 4.15 hereof;
(3) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(4) waive a Default or Event of Default in the payment of
principal of or premium or Liquidated Damages, if any, or interest on
the Notes (except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of the
then outstanding Notes and a waiver of the payment default that
resulted from such acceleration);
(5) make any Note payable in money other than that stated in
the Notes;
(6) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of Notes
to receive payments of principal of, or interest or premium or
Liquidated Damages, if any, on the Notes;
(7) waive a redemption payment with respect to any Note (other
than a payment required by Sections 3.10, 4.10 or 4.15 hereof); or
(8) make any change covered by (6) in the foregoing amendment
and waiver provisions.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes will be
set forth in a amended or supplemental indenture that complies with the TIA as
then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note 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. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. Suburban Propane in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not
affect the validity and effect of such amendment, supplement or waiver.
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Section 9.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amended or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. Suburban
Propane may not sign an amended or supplemental indenture until the Board of
Supervisors approves it. In executing any amended or supplemental indenture, the
Trustee will be provided with and (subject to Section 7.01 hereof) will be fully
protected in relying upon, in addition to the documents required by Section
12.04 hereof, an Officers' Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
ARTICLE 10.
SUBSIDIARY GUARANTEES
Section 10.01. Guarantee.
(a) Subject to Section 4.17 and this Article 10, each of the Guarantors
hereby, jointly and severally, unconditionally guarantees to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Notes or the obligations of the Issuers hereunder or thereunder,
that:
(1) the principal of, premium and Liquidated Damages, if any,
and interest on the Notes will be promptly paid in full when due,
subject to any applicable grace period, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful, and all
other obligations of the Issuers to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full or performed, all
in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, that same will be promptly
paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or
otherwise.
Failing payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Guarantors will be jointly and severally
obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder are
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against Suburban Propane, any
action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. Each
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Issuers, any
right to require a proceeding first against the Issuers, protest, notice and all
demands whatsoever and covenant that this Subsidiary Guarantee will not be
discharged except by complete performance of the obligations contained in the
Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise
to return to the Issuers, the Guarantors or any custodian, trustee, liquidator
or other similar official acting in relation to either
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Suburban Propane or the Guarantors, any amount paid by either to the Trustee or
such Holder, this Subsidiary Guarantee, to the extent theretofore discharged,
will be reinstated in full force and effect.
(d) Each Guarantor agrees that it will not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Subsidiary Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (2) in the event of any declaration of
acceleration of such obligations as provided in Article 6 hereof, such
obligations (whether or not due and payable) will forthwith become due and
payable by the Guarantors for the purpose of this Subsidiary Guarantee. The
Guarantors will have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Subsidiary Guarantee.
Section 10.02. Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Subsidiary
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Subsidiary Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of such Guarantor will be limited to the maximum amount
that will, after giving effect to such maximum amount and all other contingent
and fixed liabilities of such Guarantor that are relevant under such laws, and
after giving effect to any collections from, rights to receive contribution from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 10, result in the
obligations of such Guarantor under its Subsidiary Guarantee not constituting a
fraudulent transfer or conveyance.
Section 10.03. Execution and Delivery of Subsidiary Guarantee.
To evidence its Subsidiary Guarantee set forth in Section 10.01 hereof,
each Guarantor hereby agrees that a notation of such Subsidiary Guarantee
substantially in the form attached as Exhibit E hereto will be endorsed by an
Officer of such Guarantor on each Note authenticated and delivered by the
Trustee and that this Indenture will be executed on behalf of such Guarantor by
one of its Officers.
Each Guarantor hereby agrees that its Subsidiary Guarantee set forth in
Section 10.01 hereof will remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on the Subsidiary
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee will
be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, will constitute due delivery of the Subsidiary Guarantee set
forth in this Indenture on behalf of the Guarantors.
In the event that Suburban Propane or any of its Restricted
Subsidiaries creates or acquires any Domestic Subsidiary after the date of this
Indenture, if required by Section 4.17 hereof, the Issuers will cause such
Domestic Subsidiary to comply with the provisions of Section 4.17 hereof and
this Article 10, to the extent applicable.
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Section 10.04. Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 10.05 hereof, no Guarantor may
sell or otherwise dispose of all or substantially all of its assets to, or
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, other than Suburban Propane or another
Guarantor, unless:
(1) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(2) either:
(a) subject to Section 10.05 hereof, the Person
acquiring the property in any such sale or disposition or the
Person formed by or surviving any such consolidation or merger
unconditionally assumes all the obligations of that Guarantor,
pursuant to a supplemental indenture in form and substance
reasonably satisfactory to the Trustee, under this Indenture
and the Subsidiary Guarantee on the terms set forth herein or
therein; and
(b) the Net Proceeds of such sale or other
disposition are applied in accordance with the applicable
provisions of this Indenture, including without limitation,
Section 4.10 hereof.
In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
Subsidiary Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor Person will succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor Person thereupon may cause to be signed
any or all of the Subsidiary Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by Suburban
Propane and delivered to the Trustee. All the Subsidiary Guarantees so issued
will in all respects have the same legal rank and benefit under this Indenture
as the Subsidiary Guarantees theretofore and thereafter issued in accordance
with the terms of this Indenture as though all of such Subsidiary Guarantees had
been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding
clauses (a) and (b) above, nothing contained in this Indenture or in any of the
Notes will prevent any consolidation or merger of a Guarantor with or into
Suburban Propane or another Guarantor, or will prevent any sale or conveyance of
the property of a Guarantor as an entirety or substantially as an entirety to
Suburban Propane or another Guarantor.
Section 10.05. Releases.
The Subsidiary Guarantee of a Guarantor will be automatically and
unconditionally released:
(1) in connection with any sale or other disposition of all or
substantially all of the assets of that Guarantor (including by way of
merger or consolidation) to a Person that is not (either before or
after giving effect to such transaction) Suburban Propane or a
Restricted Subsidiary of Suburban Propane, if the sale or other
disposition does not violate Sections 3.10 or 4.10 of this Indenture;
78
(2) in connection with any sale or other disposition of all of
the Capital Stock of that Guarantor to a Person that is not (either
before or after giving effect to such transaction) Suburban Propane or
a Restricted Subsidiary of Suburban Propane, if the sale or other
disposition does not violate Sections 3.10 or 4.10 of this Indenture;
(3) if Suburban Propane designates any Restricted Subsidiary
that is a Guarantor to be an Unrestricted Subsidiary in accordance with
the applicable provisions of this Indenture;
(4) upon legal defeasance or satisfaction and discharge of the
Notes as provided in Section 8.02 and Article 11 of this Indenture; or
(5) if such Guarantor is released from the underlying
guarantee of Indebtedness giving rise to the execution of a Subsidiary
Guarantee.
Any Guarantor not released from its obligations under its Subsidiary
Guarantee as provided in this Section 10.05 will remain liable for the full
amount of principal of and interest on the Notes and for the other obligations
of any Guarantor under this Indenture as provided in this Article 10.
ARTICLE 11.
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further
effect as to all Notes issued hereunder, when:
(1) either:
(a) all Notes that have been authenticated, except
lost, stolen or destroyed Notes that have been replaced or paid and
Notes for whose payment money has theretofore been deposited in trust
and thereafter repaid to the Issuers, have been delivered to the
Trustee for cancellation; or
(b) all Notes that have not been delivered to the
Trustee for cancellation have become due and payable by reason of the
mailing of a notice of redemption or otherwise or will become due and
payable within one year, or are to be called for redemption within one
year under arrangements reasonably satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the
expense, of the Issuers, and the Issuers have irrevocably deposited or
caused to be deposited with the trustee as trust funds in trust solely
for the benefit of the Holders, cash in U.S. dollars, non-callable
Government Securities, or a combination of cash in U.S. dollars and
non-callable Government Securities, in amounts as will be sufficient,
without consideration of any reinvestment of interest, to pay and
discharge the entire Indebtedness on the Notes not delivered to the
Trustee for cancellation for principal, premium and Liquidated Damages,
if any, and accrued interest to the date of maturity or redemption;
(2) no Default or Event of Default has occurred and is
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit) and the deposit will not result in a breach or violation of,
or constitute a default under, any other instrument to which the
Issuers are a party or by which the Issuers are bound;
79
(3) the Issuers have paid or caused to be paid all sums
payable by it under this Indenture; and
(4) the Issuers have delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the
payment of the Notes at maturity or the redemption date, as the case
may be.
In addition, the Issuers must deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if
money has been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section, the provisions of Sections 11.02 and 8.06 will survive. In
addition, nothing in this Section 11.01 will be deemed to discharge those
provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.
Section 11.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited
with the Trustee pursuant to Section 11.01 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including Suburban Propane acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 11.01 hereof by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Issuers' and any Guarantor's obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 11.01 hereof; provided that if Suburban Propane has made any
payment of principal of, premium, if any, or interest on any Notes because of
the reinstatement of its obligations, Suburban Propane shall be subrogated to
the rights of the Holders of such Notes to receive such payment from the money
or Government Securities held by the Trustee or Paying Agent.
ARTICLE 12.
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA ss.318(c), the imposed duties will control.
Section 12.02 Notices.
Any notice or communication by the Issuers, any Guarantor 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' address:
80
If to Suburban Propane and/or Finance Corp.:
Suburban Propane Partners, L.P.
One Suburban Plaza
240 Route 10 West
Whippany, New Jersey 07981
Telecopier No.: (973) 503-9395
Attention: A. Davin D'Ambrosio
With a copy to:
Cahill Gordon & Reindel LLP
80 Pine Street
New York, New York 10005
Telecopier No.: (212) 269-5420
Attention: John Schuster, Esq.
If to the Trustee:
The Bank of New York
101 Barclay Street, Floor 8W
New York, New York 10286
Telecopier No.: (212) 815-5445
Attention: Corporate Trust Division
The Issuers or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) will
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 will be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication will also be so mailed to any
Person described in TIA ss. 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it will not
affect its sufficiency with respect to other Holders.
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.
If Suburban Propane mails a notice or communication to Holders, it will
mail a copy to the Trustee and each Agent at the same time.
Section 12.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. Suburban
Propane, the Trustee, the Registrar and anyone else shall have the protection of
TIA ss. 312(c).
81
Section 12.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by Suburban Propane to the Trustee to
take any action under this Indenture, except upon the issuance of the Initial
Notes, Suburban Propane shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which must include the statements set
forth in Section 12.05 hereof) 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 satisfied;
and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which must include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
Section 12.05 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 ss. 314(a)(4)) must comply with the provisions of TIA ss. 314(e)
and must 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 or she
has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 12.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 12.07 No Personal Liability of Limited Partners, Officers, Employees
and Unitholders.
No past, present or future limited partner, officer, employee,
incorporator, unitholder, stockholder or Affiliate of the Issuers, as such, will
have any liability for any obligations of the Issuers under the Notes, this
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. The waiver may not be effective to
waive liabilities under the federal securities laws.
Section 12.08 Non-Recourse
The Issuers' obligations under this Indenture are payable only out of
their cash flow and assets. The Issuers' obligations under this Indenture are
non-recourse to the limited partners of Suburban
82
Propane and are non-recourse to the Operating Partnership and its Subsidiaries.
The Trustee has, and each holder of a Note, by accepting a Note, is deemed to
have, agreed in this Indenture that the limited partners as well as the
Operating Partnership and its Subsidiaries will not be liable for any of our
obligations under this Indenture.
Section 12.09 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES 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.
Section 12.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of Suburban Propane or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 12.11 Successors.
All agreements of the Issuers in this Indenture and the Notes will bind
their successors. All agreements of the Trustee in this Indenture will bind its
successors. All agreements of each Guarantor in this Indenture will bind its
successors, except as otherwise provided in Section 10.05.
Section 12.12 Severability.
In case any provision in this Indenture or in the Notes is invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired thereby.
Section 12.13 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy will be an original, but all of them together represent the same
agreement.
Section 12.14 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 of this Indenture and will in no
way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
83
SIGNATURES
Dated as of December 23, 2003
SUBURBAN PROPANE PARTNERS, L.P.
By: Michael J. Dunn, Jr.
--------------------
Name: Michael J. Dunn, Jr.
Title: Senior Vice President - Corporate Development
SUBURBAN ENERGY FINANCE CORP.
By: Micheal J. Dunn, Jr.
--------------------
Name: Micheal J. Dunn, Jr.
Title: Senior Vice President - Corporate Development
THE BANK OF NEW YORK
By: /s/ Patricia Gallagher
----------------------
Name: Patricia Gallagher
Title: Vice President
EXHIBIT A1
- --------------------------------------------------------------------------------
[Face of Note]
- --------------------------------------------------------------------------------
CUSIP/CINS ____________
6.875% Senior Notes due 2013
No. ___ $____________
SUBURBAN PROPANE PARTNERS, L.P.
SUBURBAN ENERGY FINANCE CORP.
promises to pay to ______________________________________ or registered assigns,
the principal sum of _____________________________ DOLLARS on __________, 20___.
Interest Payment Dates: December 15 and June 15
Record Dates: December 1 and June 1
Dated: _______________, 200_
SUBURBAN PROPANE PARTNERS, L.P.
By:
-------------------------------------
Name:
Title:
SUBURBAN ENERGY FINANCE CORP.
By:
-------------------------------------
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------------
Authorized Signatory
- --------------------------------------------------------------------------------
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[Back of Note]
6.875% Senior Notes due 2013
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions
of the Indenture]
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. Suburban Propane Partners, L.P., a Delaware
limited partnership ("Suburban Propane") and Suburban Energy Finance
Corp., a Delaware corporation ("Finance Corp." and, together with
Suburban Propane, the "Issuers"), promise to pay interest on the
principal amount of this Note at 6.875% per annum from
________________, 20__ until maturity and shall pay the Liquidated
Damages, if any, payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. The Issuers will pay interest and
Liquidated Damages, if any, semi-annually in arrears on December 15 and
June 15 of each year, or if any such day is not a Business Day, on the
next succeeding Business Day (each, an "Interest Payment Date").
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date
of issuance; 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 _____________, 20__. The Issuers will 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 rate then in effect; it will
pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue installments of interest and Liquidated
Damages, if any, (without regard to any applicable grace periods) from
time to time on demand at a rate that is 1% per annum in excess of the
rate then in effect 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, if any, to
the Persons who are registered Holders of Notes at the close of
business on the December 1 or June 1 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date
and on or before such 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 and Liquidated Damages,
if any, and interest 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
addresses set forth in the register of Holders; provided that payment
by wire transfer of immediately available funds will be required with
respect to principal of and interest, premium and Liquidated Damages,
if any, on, all Global Notes and all other Notes the Holders of which
will have provided wire transfer instructions to the Issuers or the
Paying Agent. Such payment will 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 Bank of New
York, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Issuers may change any Paying Agent
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or Registrar without notice to any Holder. The Issuers or any of their
Subsidiaries may act in any such capacity.
(4) INDENTURE. The Issuers issued the Notes under an Indenture
dated as of December 23, 2003 (the "Indenture") among the Issuers and
the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the TIA
(15 U.S. Code ss.ss. 77aaa-77bbbb). The Notes are subject to all such
terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions
of the Indenture shall govern and be controlling.
(5) OPTIONAL REDEMPTION.
(a) [Reserved]
(b) At any time prior to December 15, 2006, the Issuers may on any one
or more occasions redeem up to 35% of the aggregate principal amount of Notes
issued under this Indenture at a redemption price of 106.875% of the principal
amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
to the redemption date, with the net cash proceeds of one or more Equity
Offerings; provided that:
(i) at least 65% of the aggregate principal amount of Notes
originally issued under this Indenture (excluding Notes held by
Suburban Propane and its Subsidiaries) remains outstanding immediately
after the occurrence of such redemption; and
(ii) the redemption must occur within 90 days of the date of
the closing of such Equity Offering.
(c) On or after December 15, 2008, the Issuers may redeem all or a part
of the Notes upon not less than 30 nor more than 60 days notice, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the
applicable redemption date, if redeemed during the twelve-month period beginning
on December 15 of the years indicated below, subject to the rights of Holders on
the relevant record date to receive interest on the relevant interest payment
date:
Year Percentage
---- ----------
2008................................................ 103.4375%
2009................................................ 102.2917%
2010................................................ 101.1458%
2011 and thereafter................................. 100.0000%
(6) MANDATORY REDEMPTION; SPECIAL REDEMPTION.
The Issuers will not be required to make mandatory redemption payments
with respect to the Notes.
(7) REPURCHASE AT THE OPTION OF HOLDER.
(a) If there is a Change of Control, the Issuers will
be required to make an offer (a "Change of Control Offer") to
repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of each Holder's Notes at a purchase price equal to 101% of
the aggregate
A1-3
principal amount thereof plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the date of purchase, subject to
the rights of Holders on the relevant record date to receive interest
due on the relevant interest payment date (the "Change of Control
Payment"). Within 30 days following any Change of Control, the Issuers
will mail a notice to each Holder setting forth the procedures
governing the Change of Control Offer as required by the Indenture.
(b) If Suburban Propane or any of its Restricted
Subsidiaries consummates any Asset Sales, when the aggregate amount of
Excess Proceeds exceeds $15.0 million, the Issuers will commence an
offer to all Holders of Notes and all holders of other Indebtedness
that is pari passu with the Notes containing provisions similar to
those set forth in the Indenture with respect to offers to purchase or
redeem with the proceeds of sales of assets (an "Asset Sale Offer")
pursuant to Section 3.10 of the Indenture to purchase the maximum
principal amount of Notes (including any Additional Notes) and other
pari passu Indebtedness that may be purchased out of the Excess
Proceeds. The offer price in any Asset Sale Offer will be payable in
cash and equal to 100% of the principal amount thereof plus accrued and
unpaid interest and Liquidated Damages thereon, if any, to the date of
purchase, in accordance with the procedures set forth in the Indenture.
To the extent that the aggregate amount of Notes (including any
Additional Notes) and other pari passu Indebtedness tendered pursuant
to an Asset Sale Offer is less than the Excess Proceeds, the Issuers
(or such Restricted Subsidiary) may use such deficiency for any purpose
not otherwise prohibited by the Indenture. If the aggregate principal
amount of Notes and other pari passu Indebtedness surrendered by
holders thereof exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes and other pari passu Indebtedness to be
purchased on a pro rata basis. Holders of Notes that are the subject of
an offer to purchase will receive an Asset Sale Offer from the Issuers
prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled "Option of Holder to Elect
Purchase" attached to the Notes.
(8) NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date
to each Holder whose Notes are to be redeemed at its registered
address, except that redemption notices may be mailed more than 60 days
prior to a redemption date if the notice is issued in connection with a
defeasance of the Notes or a satisfaction or discharge of the
Indenture. Notes in denominations larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000, unless all of the Notes
held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for
redemption.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Issuers may
require a Holder to pay any taxes and fees required by law or permitted
by the Indenture. The Issuers need not exchange or register the
transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part.
Also, the Issuers need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the
corresponding Interest Payment Date.
(10) PERSONS DEEMED OWNERS. The registered Holder of a Note
may be treated as its owner for all purposes.
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(11) AMENDMENT, SUPPLEMENT AND 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 then outstanding Notes and Additional Notes, if any,
voting as a single class, and any existing Default or Event of Default
compliance with any provision of the Indenture or the Notes may be
waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes and Additional Notes, if any,
voting as a single class. Without the consent of any Holder of a Note,
the Indenture or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes
in addition to or in place of certificated Notes, to provide for the
assumption of the Issuers' obligations to Holders of the Notes in case
of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does
not adversely affect the legal rights under the Indenture of any such
Holder, to comply with the requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the TIA, to
conform the text of the Indenture or the Notes to any provision of the
"Description of Notes" section of the Issuers' Offering Memorandum
dated December 18, 2003, relating to the initial offering of the Notes,
to the extent that such provision in that "Description of Notes" was
intended to be a verbatim recitation of a provision of the Indenture or
the Notes; to provide for the Issuance of Additional Notes in
accordance with the limitations set forth in the Indenture, or to allow
any Guarantor to execute a supplemental indenture to the Indenture
and/or a Subsidiary Guarantee with respect to the Notes.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i)
default for 30 days in the payment when due of interest or Liquidated
Damages on the Notes; (ii) default in payment when due of principal of
or premium, if any, on the Notes when the same becomes due and payable
at maturity, upon redemption (including in connection with an offer to
purchase) or otherwise, (iii) failure by the Issuers for 45 days after
notice to the Issuers by the Trustee or the Holders of at least 25% in
principal amount of the Notes then outstanding voting as a single class
to comply with certain other agreements in the Indenture or the Notes;
(iv) default under certain other agreements relating to certain
Indebtedness of the Issuers which default results in the acceleration
of such Indebtedness prior to its express maturity; (v) certain final
judgments for the payment of money that remain undischarged for a
period of 60 days; (vi) certain events of bankruptcy or insolvency with
respect to the Issuers or any Significant Subsidiary of Suburban
Propane. If any 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.
Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all
outstanding Notes will become due and payable without further action or
notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Notes may direct
the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the
payment of principal or interest) if it determines that withholding
notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee
may on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of
interest on, or the principal of, the Notes. The Issuers are required
to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Issuers are required upon becoming aware of
any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
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(13) TRUSTEE DEALINGS WITH ISSUERS. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Issuers or their Affiliates, and may
otherwise deal with the Issuers or their Affiliates, as if it were not
the Trustee.
(14) NO RECOURSE AGAINST OTHERS. No past, present or future
limited partner, officer, employee, incorporator, unitholder,
stockholder or Affiliate of the Issuers, as such, will have any
liability for any obligations of the Issuers under this Note, the
Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder of Notes by accepting a
Note waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Notes. The waiver may not
be effective to waive liabilities under the federal securities laws.
(15) AUTHENTICATION. This Note will not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
(16) 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).
(17) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES
AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Restricted Global
Notes and Restricted Definitive Notes will have all the rights set
forth in the Registration Rights Agreement dated as of December 23,
2003, among the Issuers and the other parties named on the signature
pages thereof or, in the case of Additional Notes, Holders of
Restricted Global Notes and Restricted Definitive Notes will have the
rights set forth in one or more registration rights agreements, if any,
among the Issuers and the other parties thereto, relating to rights
given by the Issues to the purchasers of any Additional Notes
(collectively, the "Registration Rights Agreement").
(18) CUSIP NUMBERS. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the
Issuers have caused CUSIP numbers to be printed on the Notes and the
Trustee may use CUSIP numbers in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification
numbers placed thereon.
The Issuers will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Suburban Propane Partners, L.P.
One Suburban Plaza
240 Route 10 West
Whippany, New Jersey 07981
Telecopier No.: (973) 503-9395
Attention: A. Davin D'Ambrosio
A1-6
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
-----------------------------------
(Insert assignee's legal name)
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Issuers. The agent may substitute
another to act for him.
Date: _______________
Your Signature:
--------------------------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A1-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers
pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box
below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased by the
Issuers pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$---------------
Date: _______________
Your Signature:
--------------------------------
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No.:
------------------------
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A1-8
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Amount
of this Global Note Signature of
Amount of decrease Amount of increase in following such authorized officer
in Principal Amount Principal Amount decrease of Trustee or
Date of Exchange of this Global Note of this Global Note (or increase) Custodian
---------------- ------------------- ------------------- ------------- ---------
* This schedule should be included only if the Note is issued in global form.
A1-9
EXHIBIT A2
[Face of Regulation S Temporary Global Note]
- --------------------------------------------------------------------------------
CUSIP/CINS __________
6.875% Senior Notes due 2013
No. ___ $__________
SUBURBAN PROPANE PARTNERS, L.P.
SUBURBAN ENERGY FINANCE CORP.
promises to pay to [CEDE & CO.] or registered assigns,
the principal sum of ____________________________ DOLLARS on ___________, 20___.
Interest Payment Dates: December 15 and June 15
Record Dates: December 1 and June 1
Dated: _______________, 200_
SUBURBAN PROPANE PARTNERS, L.P.
By:
-------------------------------------
Name:
Title:
SUBURBAN ENERGY FINANCE CORP.
By:
-------------------------------------
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------------
Authorized Signatory
- --------------------------------------------------------------------------------
A2-1
[Back of Regulation S Temporary Global Note]
6.875% Senior Notes due 2013
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF SUBURBAN PROPANE.
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. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE ISSUERS OR THEIR
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.
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS,
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT; (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A)
TO THE ISSUERS OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN "ACCREDITED INVESTOR")),
(D) OUTSIDE THE UNITED STATES IN
A2-2
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE
ISSUERS SO REQUEST) AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE DATE, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR,
THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE OR THE ISSUERS
SUCH CERTIFICATIONS, IF LESS THAN $100,000, AND LEGAL OPINIONS AS ANY OF THEM
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN
VIOLATION OF THE FOREGOING RESTRICTIONS."
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. Suburban Propane Partners, L.P., a Delaware
limited partnership ("Suburban Propane") and Suburban Energy Finance
Corp., a Delaware corporation ("Finance Corp." and, together with
Suburban Propane, the "Issuers"), promise to pay interest on the
principal amount of this Note at 6.875% per annum from
________________, 20__ until maturity and shall pay the Liquidated
Damages, if any, payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. The Issuers will pay interest and
Liquidated Damages, if any, semi-annually in arrears on December 15 and
June 15 of each year, or if any such day is not a Business Day, on the
next succeeding Business Day (each, an "Interest Payment Date").
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date
of issuance; 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 _____________, 20__. The Issuers will 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 rate then in effect; it will
pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue installments of interest and Liquidated
Damages, if any, (without regard to any applicable grace periods) from
time to time on demand at a rate that is 1% per annum in excess of the
rate then in effect 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, if any, to
the Persons who are registered Holders of Notes at the close of
business on the December 1 or June 1 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date
and on or before such 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 and Liquidated Damages,
if any, and interest at the office or agency of the Issuers maintained
for such purpose within or without the City and State
A2-3
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 addresses set forth in the register of Holders; provided that
payment by wire transfer of immediately available funds will be
required with respect to principal of and interest, premium and
Liquidated Damages, if any, on, all Global Notes and all other Notes
the Holders of which will have provided wire transfer instructions to
the Issuers or the Paying Agent. Such payment will 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 Bank of New
York, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Issuers may change any Paying Agent or Registrar without
notice to any Holder. The Issuers or any of their Subsidiaries may act
in any such capacity.
(4) INDENTURE. The Issuers issued the Notes under an Indenture
dated as of December 23, 2003 (the "Indenture") among the Issuers and
the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the TIA
(15 U.S. Code ss.ss. 77aaa-77bbbb). The Notes are subject to all such
terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions
of the Indenture shall govern and be controlling.
(5) OPTIONAL REDEMPTION.
(a) [Reserved]
(b) At any time prior to December 15, 2006, the Issuers may on any one
or more occasions redeem up to 35% of the aggregate principal amount of Notes
issued under this Indenture at a redemption price of 106.875% of the principal
amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
to the redemption date, with the net cash proceeds of one or more Equity
Offerings; provided that:
(i) at least 65% of the aggregate principal amount of Notes
originally issued under this Indenture (excluding Notes held by
Suburban Propane and its Subsidiaries) remains outstanding immediately
after the occurrence of such redemption; and
(ii) the redemption must occur within 90 days of the date of
the closing of such Equity Offering.
(c) On or after December 15, 2008, the Issuers may redeem all or a part
of the Notes upon not less than 30 nor more than 60 days notice, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the
applicable redemption date, if redeemed during the twelve-month period beginning
on December 15 of the years indicated below, subject to the rights of Holders on
the relevant record date to receive interest on the relevant interest payment
date:
Year Percentage
---- ----------
2008................................................ 103.4375%
2009................................................ 102.2917%
2010................................................ 101.1458%
2011 and thereafter................................. 100.0000%
A2-4
(6) MANDATORY REDEMPTION; SPECIAL REDEMPTION.
The Issuers will not be required to make mandatory redemption payments
with respect to the Notes.
(7) REPURCHASE AT THE OPTION OF HOLDER.
(a) If there is a Change of Control, the Issuers will
be required to make an offer (a "Change of Control Offer") to
repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of each Holder's Notes at a purchase price equal to 101% of
the aggregate principal amount thereof plus accrued and unpaid interest
and Liquidated Damages thereon, if any, to the date of purchase,
subject to the rights of Holders on the relevant record date to receive
interest due on the relevant interest payment date (the "Change of
Control Payment"). Within 30 days following any Change of Control, the
Issuers will mail a notice to each Holder setting forth the procedures
governing the Change of Control Offer as required by the Indenture.
(b) If Suburban Propane or any of its Restricted
Subsidiaries consummates any Asset Sales, when the aggregate amount of
Excess Proceeds exceeds $15.0 million, the Issuers will commence an
offer to all Holders of Notes and all holders of other Indebtedness
that is pari passu with the Notes containing provisions similar to
those set forth in the Indenture with respect to offers to purchase or
redeem with the proceeds of sales of assets (an "Asset Sale Offer")
pursuant to Section 3.10 of the Indenture to purchase the maximum
principal amount of Notes (including any Additional Notes) and other
pari passu Indebtedness that may be purchased out of the Excess
Proceeds. The offer price in any Asset Sale Offer will be payable in
cash and equal to 100% of the principal amount thereof plus accrued and
unpaid interest and Liquidated Damages thereon, if any, to the date of
purchase, in accordance with the procedures set forth in the Indenture.
To the extent that the aggregate amount of Notes (including any
Additional Notes) and other pari passu Indebtedness tendered pursuant
to an Asset Sale Offer is less than the Excess Proceeds, the Issuers
(or such Restricted Subsidiary) may use such deficiency for any purpose
not otherwise prohibited by the Indenture. If the aggregate principal
amount of Notes and other pari passu Indebtedness surrendered by
holders thereof exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes and other pari passu Indebtedness to be
purchased on a pro rata basis. Holders of Notes that are the subject of
an offer to purchase will receive an Asset Sale Offer from the Issuers
prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled "Option of Holder to Elect
Purchase" attached to the Notes.
(8) NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date
to each Holder whose Notes are to be redeemed at its registered
address, except that redemption notices may be mailed more than 60 days
prior to a redemption date if the notice is issued in connection with a
defeasance of the Notes or a satisfaction or discharge of the
Indenture. Notes in denominations larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000, unless all of the Notes
held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for
redemption.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and the
A2-5
Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Issuers may
require a Holder to pay any taxes and fees required by law or permitted
by the Indenture. The Issuers need not exchange or register the
transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part.
Also, the Issuers need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the
corresponding Interest Payment Date.
(10) PERSONS DEEMED OWNERS. The registered Holder of a Note
may be treated as its owner for all purposes.
(11) AMENDMENT, SUPPLEMENT AND 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 then outstanding Notes and Additional Notes, if any,
voting as a single class, and any existing Default or Event of Default
compliance with any provision of the Indenture or the Notes may be
waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes and Additional Notes, if any,
voting as a single class. Without the consent of any Holder of a Note,
the Indenture or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes
in addition to or in place of certificated Notes, to provide for the
assumption of the Issuers' obligations to Holders of the Notes in case
of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does
not adversely affect the legal rights under the Indenture of any such
Holder, to comply with the requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the TIA, to
conform the text of the Indenture or the Notes to any provision of the
"Description of Notes" section of the Issuers' Offering Memorandum
dated December 18, 2003, relating to the initial offering of the Notes,
to the extent that such provision in that "Description of Notes" was
intended to be a verbatim recitation of a provision of the Indenture or
the Notes; to provide for the Issuance of Additional Notes in
accordance with the limitations set forth in the Indenture, or to allow
any Guarantor to execute a supplemental indenture to the Indenture
and/or a Subsidiary Guarantee with respect to the Notes.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i)
default for 30 days in the payment when due of interest or Liquidated
Damages on the Notes; (ii) default in payment when due of principal of
or premium, if any, on the Notes when the same becomes due and payable
at maturity, upon redemption (including in connection with an offer to
purchase) or otherwise, (iii) failure by the Issuers for 45 days after
notice to the Issuers by the Trustee or the Holders of at least 25% in
principal amount of the Notes then outstanding voting as a single class
to comply with certain other agreements in the Indenture or the Notes;
(iv) default under certain other agreements relating to certain
Indebtedness of the Issuers which default results in the acceleration
of such Indebtedness prior to its express maturity; (v) certain final
judgments for the payment of money that remain undischarged for a
period of 60 days; (vi) certain events of bankruptcy or insolvency with
respect to the Issuers or any Significant Subsidiary of Suburban
Propane. If any 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.
Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all
outstanding Notes will become due and payable without further action or
notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Notes may direct
the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing Default or
Event of Default (except
A2-6
a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of
the Notes then outstanding by notice to the Trustee may on behalf of
the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing
Default or Event of Default in the payment of interest on, or the
principal of, the Notes. The Issuers are required to deliver to the
Trustee annually a statement regarding compliance with the Indenture,
and the Issuers are required upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such
Default or Event of Default.
(13) TRUSTEE DEALINGS WITH ISSUERS. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Issuers or their Affiliates, and may
otherwise deal with the Issuers or their Affiliates, as if it were not
the Trustee.
(14) NO RECOURSE AGAINST OTHERS. No past, present or future
limited partner, officer, employee, incorporator, unitholder,
stockholder or Affiliate of the Issuers, as such, will have any
liability for any obligations of the Issuers under this Note, the
Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder of Notes by accepting a
Note waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Notes. The waiver may not
be effective to waive liabilities under the federal securities laws.
(15) AUTHENTICATION. This Note will not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
(16) 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).
(17) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES
AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Restricted Global
Notes and Restricted Definitive Notes will have all the rights set
forth in the Registration Rights Agreement dated as of December 23,
2003, among the Issuers and the other parties named on the signature
pages thereof or, in the case of Additional Notes, Holders of
Restricted Global Notes and Restricted Definitive Notes will have the
rights set forth in one or more registration rights agreements, if any,
among the Issuers and the other parties thereto, relating to rights
given by the Issues to the purchasers of any Additional Notes
(collectively, the "Registration Rights Agreement").
(18) CUSIP NUMBERS. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the
Issuers have caused CUSIP numbers to be printed on the Notes and the
Trustee may use CUSIP numbers in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification
numbers placed thereon.
The Issuers will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
A2-7
Suburban Propane Partners, L.P.
One Suburban Plaza
240 Route 10 West
Whippany, New Jersey 07981
Telecopier No.: (973) 503-9395
Attention: A. Davin D'Ambrosio
A2-8
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Issuers. The agent may substitute
another to act for him.
Date: _______________
Your Signature:
--------------------------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A2-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers
pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box
below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased by the
Issuers pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$---------------
Date: _______________
Your Signature:
--------------------------------
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No.:
------------------------
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A2-10
SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL NOTE
The following exchanges of a part of this Regulation S Temporary Global
Note for an interest in another Global Note, or exchanges in part of another
other Restricted Global Note for an interest in this Regulation S Temporary
Global Note, have been made:
Principal Amount
of this Global Note Signature of
Amount of decrease Amount of increase in following such authorized officer
in Principal Amount Principal Amount decrease of Trustee or
Date of Exchange of this Global Note of this Global Note (or increase) Custodian
---------------- ------------------- ------------------- ------------- ---------
A2-11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Suburban Propane Partners, L.P.
Suburban Energy Finance Corp.
240 Route 10 West
Whippany, New Jersey 07981
Telecopier No.: (973) 503-9395
Attention: A. Davin D'Ambrosio
The Bank of New York
101 Barclay Street, Fl. 8W
New York, New York 10286
Re: 6.875% Senior Notes due 2013
----------------------------
Reference is hereby made to the Indenture, dated as of December 23,
2003 (the "Indenture"), among Suburban Propane Partners, L.P. ("Suburban
Propane"), Suburban Energy Finance Corp. ("Finance Corp." and together with
Suburban Propane, the "Issuers"), the Guarantors party thereto and The Bank of
New York, as trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
___________________, (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE 144A GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO RULE 144A.
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note for
its own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A, and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Restricted Definitive Note and
in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE REGULATION S TEMPORARY GLOBAL NOTE, THE REGULATION S PERMANENT GLOBAL
NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a Person in the United States and (x) at
the time the buy order was originated, the Transferee was outside the United
States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged
B-1
with a buyer in the United States, (ii) no directed selling efforts have been
made in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act, (iii) the transaction is not part of a
plan or scheme to evade the registration requirements of the Securities Act and
(iv) if the proposed transfer is being made prior to the expiration of the
Restricted Period, the transfer is not being made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser). Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Permanent Global Note, the Regulation S
Temporary Global Note and/or the Restricted Definitive Note and in the Indenture
and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN A RESTRICTED DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF
THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Issuers or a
subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in
compliance with the prospectus delivery requirements of the Securities
Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in
B-2
the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.
-----------------------------------------
[Insert Name of Transferor]
By:
-------------------------------------
Name:
Title:
Dated: _______________________
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(iii) [ ] Unrestricted Global Note (CUSIP _________); or
(b) a Restricted Definitive Note; or
(c) an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Suburban Propane Partners, L.P.
Suburban Energy Finance Corp.
240 Route 10 West
Whippany, New Jersey 07981
Telecopier No.: (973) 503-9395
Attention: A. Davin D'Ambrosio
The Bank of New York
101 Barclay Street, Fl. 8W
New York, New York 10286
Re: 6.875% Senior Notes due 2013
----------------------------
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of December 23,
2003 (the "Indenture"), among Suburban Propane Partners, L.P. ("Suburban
Propane"), Suburban Energy Finance Corp. ("Finance Corp." and together with
Suburban Propane, the "Issuers"), the Guarantors party thereto and The Bank of
New York, as trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
__________________________, (the "Owner") owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $____________ in such Note[s] or interests (the "Exchange"). In
connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the Securities Act of 1933, as
amended (the "Securities Act"), (iii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in
an Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the
C-1
Securities Act and (iv) the Definitive Note is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] 144A Global Note, Regulation S Global Note, with an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any state
of the United States. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the beneficial interest issued will be subject
to the restrictions on transfer enumerated in the Private Placement Legend
printed on the relevant Restricted Global Note and in the Indenture and the
Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.
C-2
-----------------------------------------
[Insert Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated: ______________________
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Suburban Propane Partners, L.P.
Suburban Energy Finance Corp.
240 Route 10 West
Whippany, New Jersey 07981
Telecopier No.: (973) 503-9395
Attention: A. Davin D'Ambrosio
The Bank of New York
101 Barclay Street, Fl. 8W
New York, New York 10286
Re: 6.875% Senior Notes due 2013
----------------------------
Reference is hereby made to the Indenture, dated as of December 23,
2003 (the "Indenture"), among Suburban Propane Partners, L.P. and Suburban
Energy Finance Corp., as issuers (the "Issuers"), and The Bank of New York, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Issuers or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Issuers a signed letter
substantially in the form of this letter and, if such transfer is in respect of
a principal amount of Notes, at the time of transfer of less than $100,000, an
Opinion of Counsel in form reasonably acceptable to the Issuers to the effect
that such transfer is in compliance with the Securities Act, (D) outside the
United States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the provisions of Rule 144(k) under the Securities Act or
(F) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any Person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
D-1
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Issuers such certifications, legal opinions and other information as you and the
Issuers may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Issuers are entitled to rely upon this letter and 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.
-----------------------------------------
[Insert Name of Accredited Investor]
By:
--------------------------------------
Name:
Title:
Dated: _______________________
D-2
EXHIBIT E
[FORM OF NOTATION OF GUARANTEE]
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of December 23, 2003 (the "Indenture")
among Suburban Propane Partners, L.P. ("Suburban Propane"), Suburban Energy
Finance Corp. ("Finance Corp" and together with Suburban Propane, the
"Issuers"), the Guarantors party thereto and The Bank of New York, as trustee
(the "Trustee"), (a) the due and punctual payment of the principal of, premium
and Liquidated Damages, if any, and interest on, the Notes, whether at maturity,
by acceleration, redemption or otherwise, the due and punctual payment of
interest on overdue principal of and interest on the Notes, if any, if lawful,
and the due and punctual performance of all other obligations of the Issuers to
the Holders or the Trustee all in accordance with the terms of the Indenture and
(b) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, that the same will be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise. The obligations of the
Guarantors to the Holders of Notes and to the Trustee pursuant to the Subsidiary
Guarantee and the Indenture are expressly set forth in Article 10 of the
Indenture and reference is hereby made to the Indenture for the precise terms of
the Subsidiary Guarantee. Each Holder of a Note, by accepting the same, (a)
agrees to and shall be bound by such provisions (b) authorizes and directs the
Trustee, on behalf of such Holder, to take such action as may be necessary or
appropriate to effectuate the subordination as provided in the Indenture and (c)
appoints the Trustee attorney-in-fact of such Holder for such purpose.
Capitalized terms used but not defined herein have the meanings given
to them in the Indenture.
[NAME OF GUARANTOR(S)]
By:
--------------------------------------
Name:
Title:
E-1
EXHIBIT F
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
________________, 200__, among __________________ (the "Guaranteeing
Subsidiary"), a subsidiary of Suburban Propane Partners, L.P. (or its permitted
successor), a Delaware limited partnership ("Suburban Propane"), Suburban Energy
Finance Corp., a Delaware corporation ("Finance Corp." and together with
Suburban Propane, the "Issuers"), the other Guarantors (as defined in the
Indenture referred to herein) and The Bank of New York as trustee under the
Indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Issuers have heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of December 23, 2003 providing
for the issuance of 6.875% Senior Notes due 2013 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Issuers' Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees to
provide an unconditional Guarantee on the terms and subject to the conditions
set forth in the Subsidiary Guarantee and in the indenture including but not
limited to Article 10 thereof.
4. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the Issuers
or any Guaranteeing Subsidiary under the Notes, any Subsidiary Guarantees, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. Such waiver may
not be effective to waive liabilities under the federal securities laws and it
is the view of the Commission that such a waiver is against public policy.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE 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.
F-1
6. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
8. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary and the Issuers.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: _______________, 20___
[GUARANTEEING SUBSIDIARY]
By: _______________________________
Name:
Title:
SUBURBAN PROPANE PARTNERS, L.P.
By: _______________________________
Name:
Title:
SUBURBAN ENERGY FINANCE CORP.
By: _______________________________
Name:
Title:
[EXISTING GUARANTORS]
By: _______________________________
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By: _______________________________
Authorized Signatory
F-2