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BUCKEYE PIPE LINE COMPANY, L.P.
TO
PNC BANK, NATIONAL ASSOCIATION
AS TRUSTEE
_______________
AMENDED AND RESTATED INDENTURE
DATED AS OF DECEMBER 16, 1997
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TABLE OF CONTENTS
[Not Part of Agreement]
Page
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ARTICLE ONE - DEFINITIONS; ACCOUNTING PRINCIPLES 6
(S) 1.01. Certain Definitions 6
"Affiliate" 7
"Bankruptcy Law" 7
"Board of Directors" 7
"BP Michigan" 7
"BP Pipeline System" 7
"Business Day" 7
"Called Principal" 7
"Capitalized Lease Obligation" 7
"Certified Resolution" 7
"Code" 7
"Company" 8
"Consolidated Interest Expense" 8
"Consolidated Net Income" 8
"Consolidated Tangible Assets" 8
"Counsel" 8
"Default" 9
["Defeased Notes" 9
"Discounted Value" 9
"EBITDA" 9
"ERISA" 9
"ERISA Affiliate" 9
"Event of Default" 9
"Exchange Act" 9
"General Partner" 10
"Indebtedness" 10
"Indenture" 10
"Institutional Noteholder" 10
"Laurel" 10
"Lien" 10
"Material Adverse Effect" 10
"Multiemployer Plan" 11
"1997 Note Agreement" 11
i
"Note" or "Notes" 11
"Noteholders" or "Holders of the Notes" or "Holders" 11
"Officers' Certificate" 11
"Original Indenture" 11
"Outstanding" 11
"Partnership Agreement" 11
"PBGC" 11
"Person" 12
"Pipelines" 12
"Pipeline Assets" 12
"Pipeline Systems" 12
"Plan" 12
"Priority Debt" 12
"Prior Liens" 12
"Prior Lien Obligations" 12
"Public Partnership" 12
"Registered Owner" 12
"Reinvestment Yield" 13
"Remaining Average Life" 13
"Remaining Scheduled Payments" 13
"Required Holder(s)" 13
"Responsible Officer" 13
"Responsible Officers of the Trustee" 13
"Restricted Affiliates" 14
"Restricted Subsidiary" 14
"Sale-Leaseback Attributable Debt" 14
"Sale-Leaseback Transaction" 14
"Securities Act" 14
"Settlement Date" 14
"Significant Holder" 14
"Sixth Supplement" 14
"Subsidiary" 14
"Supplemental Indenture" or "Indenture Supplemental" 14
"Swaps" 14
"Total Indebtedness" 15
"Transferee" 15
"Trustee" 15
"Yield-Maintenance Amount" 15
(S) 1.02. Accounting Principles 15
ii
ARTICLE TWO - DESCRIPTION AND MANNER OF EXECUTION,
AUTHENTICATION AND REGISTRATION OF NOTES 16
(S) 2.01. Series; Designations 16
(S) 2.02. Variations and Special Provisions 16
(S) 2.03. Books for Registration and Transfer of Notes 17
(S) 2.04. Transfer and Date of Notes 18
(S) 2.05. Deemed Owners of Notes 18
(S) 2.06. Manner and Conditions of Exchange 18
(S) 2.07. Numbers, Designations, Legends, etc. 19
(S) 2.08. Execution of Notes 19
(S) 2.09. Mutilated, Destroyed, Lost or Stolen Notes 19
(S) 2.10. Form and Authentication of Notes 20
(S) 2.11. Terms of the 1997 Notes 20
ARTICLE THREE - AUTHENTICATION AND DELIVERY OF NOTES 21
(S) 3.01. Notes Limited 21
(S) 3.02. Authentication of 1997 Notes 21
(S) 3.03. Requirements for Authentication of Additional Notes 21
(S) 3.04. Payment Dates 23
ARTICLE FOUR - AFFIRMATIVE COVENANTS 24
(S) 4.01. Financial Statements; Other Reporting Requirements 24
(S) 4.02. Requirements Upon Qualification Under Trust Indenture Act 26
(S) 4.03. Information Regarding Noteholders 26
(S) 4.04. Information Required by Rule 144A 26
(S) 4.05. Inspection of Property 27
(S) 4.06. Covenant to Secure Notes Equally 27
(S) 4.07. Maintenance of Properties 27
(S) 4.08. Maintenance of Insurance 27
(S) 4.09. Compliance With Laws; Licenses and Permits 27
(S) 4.10. ERISA Compliance 28
(S) 4.11. Payment of Taxes and Other Claims 28
(S) 4.12. Partnership or Corporate Existence 28
(S) 4.13. Release of Original Indenture Lien 28
ARTICLE FIVE - NEGATIVE COVENANTS 29
(S) 5.01. Total Indebtedness to EBITDA Ratio 29
(S) 5.02. Limitation on Liens 29
(S) 5.03. Limitation on Priority Debt 32
iii
(S) 5.04. Limitation on Sale of Assets 32
(S) 5.05. Maintenance of Affiliate Status 32
(S) 5.06. Limitation on Consolidation, Merger or Asset Transfer 32
(S) 5.07. Limitation on Sale-Leaseback Transactions 33
(S) 5.08. Authentication and Delivery of Notes; Compliance with
Indenture 34
(S) 5.09. Change of Business 34
ARTICLE SIX - PREPAYMENT OR REDEMPTION OF NOTES 34
(S) 6.01. Required Prepayments with Respect to 1997 Notes 34
(S) 6.02. Optional Prepayments with Respect to 1997 Notes 35
(S) 6.03. Notice of Optional Prepayment with Respect to 1997 Notes 35
(S) 6.04. Partial Prepayments Pro Rata 35
(S) 6.05. Retirement of 1997 Notes 35
ARTICLE SEVEN - EVENTS OF DEFAULT 36
(S) 7.01. Acceleration 36
(S) 7.02. Rescission of Acceleration 39
(S) 7.03. Notice of Acceleration or Rescission 40
(S) 7.04. Other Remedies 40
(S) 7.05. Control of Proceedings 40
(S) 7.07. Action by Trustee Without Possession of Notes 41
(S) 7.08. Filing of Documents by Trustee; Attorney-in-Fact 41
(S) 7.09. No Waiver 42
(S) 7.10. Notes Deemed Not Outstanding 42
(S) 7.11. Exercise of Rights 42
(S) 7.12. Remedies Subject to Applicable Laws 42
ARTICLE EIGHT - EVIDENCE OF RIGHTS OF NOTEHOLDERS 42
ARTICLE NINE - IMMUNITY OF PARTNERS, STOCKHOLDERS AND OFFICERS
AND DIRECTORS OF THE GENERAL PARTNER 43
ARTICLE TEN - THE TRUSTEE 44
(S) 10.01. Rights of Trustee 44
(S) 10.02. Extent of Trustee Liability 46
(S) 10.03. Notice of Defaults 47
(S) 10.04. Conflicting Interest of Trustee 47
(S) 10.05. Qualifications of Trustee; Resignation 47
(S) 10.06. Resignation and Removal; Successor Trustee 48
(S) 10.07. Acceptance by Successor Trustee 49
iv
(S) 10.08. Merger or Consolidation 49
(S) 10.09. Trustee as Creditor 49
(S) 10.10. Reporting Requirements 53
(S) 10.11. Preservation of Noteholder Information 53
(S) 10.12. Dealings With Company 54
(S) 10.13. Compliance With SEC Rules and Regulations 54
ARTICLE ELEVEN - SUPPLEMENTAL INDENTURES 55
(S) 11.01. Permitted Purposes 55
(S) 11.02. Authorization of Trustee 56
(S) 11.03. Compliance With Trust Indenture Act 56
(S) 11.04. Delivery to Noteholders 56
ARTICLE TWELVE - MEETINGS OF NOTEHOLDERS 57
(S) 12.01. Modifications of Indenture 57
(S) 12.02. Calling of Meetings; Voting 57
(S) 12.03. Attendance at Meetings 58
(S) 12.04. Chairman and Secretary; Inspector of Votes 58
(S) 12.05. Quorum; Adjournment 59
(S) 12.06. Modifications of Indenture 59
(S) 12.07. Record of Meeting; Adoption and Approval 60
(S) 12.08. Written Consent 60
(S) 12.09. Endorsement of New Notes 60
ARTICLE THIRTEEN - MISCELLANEOUS PROVISIONS 61
(S) 13.01. Benefits Restricted 61
(S) 13.02. Canceled Notes 61
(S) 13.03. Severability; Conflicting Provisions 61
(S) 13.04. Expenses 62
(S) 13.05. Payments 62
(S) 13.06. Payments Due on Non-Business Days 62
(S) 13.07. Certificates; Opinions 63
(S) 13.08. Notices 64
(S) 13.09. Successors and Assigns 64
(S) 13.10. Counterparts 64
(S) 13.11. GOVERNING LAW 64
(S) 13.12. Headings 64
v
AMENDED AND RESTATED INDENTURE, dated as of December 16, 1997 (this
"INDENTURE"), made by and between BUCKEYE PIPE LINE COMPANY, L.P., a limited
partnership duly organized and existing under the laws of the State of Delaware
(the "COMPANY"), and PNC Bank, National Association, formerly Pittsburgh
National Bank, a national banking association duly organized and existing under
the laws of the United States, having its principal corporate trust office at
One Oliver Plaza, Pittsburgh, Pennsylvania 15265 (the "TRUSTEE");
WHEREAS, the Company, the Trustee and J.G. Routh, as Individual
Trustee, entered into that certain Indenture of Mortgage and Deed of Trust and
Security Agreement dated as of December 15, 1986, as amended by that certain
First Supplemental Indenture of Mortgage and Deed of Trust and Security
Agreement dated as of December 1, 1987, that certain Second Supplemental
Indenture of Mortgage and Deed of Trust and Security Agreement dated as of
November 30, 1992, that certain Third Supplemental Indenture of Mortgage and
Deed of Trust and Security Agreement dated as of December 31, 1993, that certain
Fourth Supplemental Indenture of Mortgage and Deed of Trust and Security
Agreement dated as of March 15, 1994, that certain Fifth Supplemental Indenture
of Mortgage and Deed of Trust and Security Agreement dated as of March 30, 1994
and that certain Sixth Supplemental Indenture of Mortgage and Deed of Trust and
Security Agreement (the "SIXTH SUPPLEMENT") dated as of even date herewith (as
thereby amended, the "ORIGINAL INDENTURE");
WHEREAS, the Company issued and sold under the Original Indenture the
Company's First Mortgage Notes, of which as of the date hereof and immediately
prior to the execution and delivery of the aforementioned Sixth Supplement and
the issuance of the hereinafter described 1997 Notes thereunder, there remained
outstanding the following: (i) $152,100,000 aggregate principal amount of the
Company's 11.18% Series J First Mortgage Notes due 2006, (ii) $11,000,000
aggregate principal amount of the Company's 7.11% Series K First Mortgage Notes
due 2007, (iii) $11,000,000 aggregate principal amount of the Company's 7.15%
Series L First Mortgage Notes due 2008, (iv) $13,000,000 aggregate principal
amount of the Company's 7.19% Series M First Mortgage Notes due 2009 and (v)
$15,000,000 aggregate principal amount of the Company's 7.93% Series N First
Mortgage Notes due 2010 (collectively, the "OUTSTANDING FIRST MORTGAGE NOTES");
WHEREAS, prior to the date hereof, the Company offered to purchase all
of the Outstanding First Mortgage Notes from the holders thereof, and all
holders of Outstanding First Mortgage Notes accepted such offer except Jefferson
Pilot Life Insurance Company, Ohio National Life Insurance Company and Pan
American Life Insurance Company, the holders of $10,805,000 aggregate principal
amount of the Company's 11.18% Series J First Mortgage Notes due 2006 (the "Non-
Accepting Notes");
WHEREAS, on the date hereof, simultaneously with the issuance and sale
by the Company of the 1997 Notes in the aggregate principal amount of
$240,000,000 under the 1997 Note Agreement and the Sixth Supplement, the Company
is (i) purchasing or redeeming and (in each case) canceling all Outstanding
First Mortgage Notes other than the Non-Accepting Notes, and (ii)
defeasing the Non-Accepting Notes in accordance with the provisions of Article
Fourteen of the Original Indenture and that certain Defeasance Trust Agreement
of even date herewith between the Company and the Trustees, so that the 1997
Notes shall be the only Notes Outstanding (as defined in the Original Indenture)
under the Original Indenture;
WHEREAS, the Company and the Trustee wish to enter into this Indenture
in amendment and restatement of the Original Indenture in its entirety in order
to release and discharge the Mortgaged Property (as defined in the Original
Indenture) from the Lien of the Original Indenture and to otherwise amend and
modify its terms as set forth herein;
WHEREAS, the Company has duly obtained the consent of the Holder of
all of the 1997 Notes to such amendment and restatement of the Original
Indenture;
WHEREAS, all necessary action has been duly taken by the Company to
authorize the execution and delivery of this Indenture;
WHEREAS, the 1997 Notes entitled to the benefits of this Indenture
consist of four series, the Notes of each series being designated and referred
to in this Indenture as set forth in (S) 2.11 and having the aggregate principal
amount, maturing at the date, and bearing interest, payable monthly on the 16th
day of each calendar month during each year, at the annual rate set forth in (S)
2.11, and being subject to prepayment with respect to the required prepayments
specified in (S) 6.01 and the optional prepayments permitted by (S) 6.02; and
WHEREAS, the 1997 Notes are substantially in the form following
respectively with changes only as to series designations and interest rates:
[FORM OF NOTE OF SERIES 1997A THROUGH SERIES 1997D]
BUCKEYE PIPE LINE COMPANY, L.P.
(A limited partnership organized under
the laws of the State of Delaware)
SENIOR NOTE, ____% SERIES 1997__ DUE DECEMBER 16, 2024
No._____________ [Date]
$_______________ PPN___________
FOR VALUE RECEIVED, BUCKEYE PIPE LINE COMPANY, L.P., a limited
partnership organized and existing under the laws of the State of Delaware (the
"COMPANY"), hereby promises to pay to ______________________________________, or
registered assigns, the principal sum of ___________________________ DOLLARS
($______________) on December 16, 2024, with interest (computed on the basis of
a 360-day year--30-day month) (a) on the unpaid balance thereof at the rate of
____% per annum from the date hereof, payable monthly on the 16th day of each
calendar month during each year, commencing with the 16th day of the
2
calendar month immediately succeeding the date hereof, until the principal
hereof shall have become due and payable, and (b) on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of interest
and any overdue payment of any Yield-Maintenance Amount (as defined in the
Indenture referred to below), payable monthly as aforesaid (or, at the option of
the registered holder hereof, on demand), at a rate per annum from time to time
equal to the greater of (i) 2.0% over the above rate or (ii) 2.0% over the rate
of interest publicly announced by The Bank of New York from time to time in New
York City as its Prime Rate.
Except as provided in (S) 13.05 of the Indenture hereinafter referred
to, payments of principal of, interest on and any Yield-Maintenance Amount
payable with respect to this Note are to be made in lawful money of the United
States of America at the principal corporate trust office of the Trustee
hereinafter mentioned or any successor as Trustee under such Indenture.
This Note is one of a series designated as the "___% Senior Notes,
Series 1997__ due December 16, 2024" of the Company limited in aggregate
principal amount to $________ and issued under and entitled to the benefits of
that certain Indenture of Mortgage and Deed of Trust and Security Agreement
dated as of December 15, 1986, as amended by that certain First Supplemental
Indenture of Mortgage and Deed of Trust and Security Agreement dated as of
December 1, 1987, that certain Second Supplemental Indenture of Mortgage and
Deed of Trust and Security Agreement dated as of November 30, 1992, that certain
Third Supplemental Indenture of Mortgage and Deed of Trust and Security
Agreement dated as of December 31, 1993, that certain Fourth Supplemental
Indenture of Mortgage and Deed of Trust and Security Agreement dated as of March
15, 1994, that certain Fifth Supplemental Indenture of Mortgage and Deed of
Trust and Security Agreement dated as of March 30, 1994, and that certain Sixth
Supplemental Indenture of Mortgage and Deed of Trust and Security Agreement,
dated as of December 16, 1997, and as amended and restated in its entirety by
that certain Amended and Restated Indenture dated as of December 16, 1997,
between the Company and PNC Bank, National Association (the "TRUSTEE") (as
thereby amended and restated, and as the same may be further amended, restated
or otherwise modified from time to time, the "INDENTURE"). Contemporaneously
with the issuance of the Notes of this series, the Company is issuing under the
Indenture Notes of three other series which, together with the Notes of this
series (collectively, the "1997 NOTES"), are in the aggregate principal amount
of $240,000,000. The Indenture provides for the issuance of Additional Notes
thereunder (the 1997 Notes and the Additional Notes are referred to herein as
the "NOTES"), subject to the limitations described therein, to be entitled on an
equal basis with the 1997 Notes to the benefits of the Indenture. Reference is
made to the Indenture and all Indentures Supplemental thereto for a description
of the rights of the Holders of the Notes and of the Trustee in respect thereof.
The Notes of the several series issued under the Indenture may vary in aggregate
principal amount, may mature at different times, may bear interest at different
rates and may otherwise differ as in the Indenture provided.
The Company agrees to make required prepayments of principal on the
dates and in the amounts specified in the Indenture. This Note is also subject
to optional prepayment, in whole or from time to time in part, on the terms
specified in the Indenture.
3
To the extent permitted by, and as provided in, the Indenture,
modifications or alterations of the Indenture, or of any Indenture Supplemental
thereto, and of the rights and obligations of the Company and of the Holders of
the Notes may be made with the consent of the Company upon the written consent
of the Holders of not less than 51% in aggregate principal amount of the 1997
Notes then Outstanding and the Holders of not less than 51% in aggregate
principal amount of the Notes of each other series issued under the Indenture
and then Outstanding, or by an affirmative vote of the Holders of not less than
51% in aggregate principal amount of the 1997 Notes then Outstanding and 51% in
aggregate principal amount of the Notes of each other series issued under the
Indenture and then Outstanding and entitled to vote thereon, at a meeting of
Noteholders called and held as provided in the Indenture or as otherwise
provided in the Indenture; provided, however, that no such modification or
alteration shall be made without the consent of the Holder hereof which will (a)
affect the right of such Holder to receive payment of principal of, or interest
or Yield-Maintenance Amount (if any) on, this Note, or to institute suit for the
enforcement of such payment on or after the respective due dates expressed
herein, or (b) reduce the percentage of the aggregate principal amount of Notes
required to authorize any such modification or alteration.
In case an Event of Default, as defined in the Indenture, shall occur
and be continuing, the principal of all the Notes at any such time outstanding
under the Indenture may be declared or may become due and payable upon the
conditions and in the manner and with the effect provided in the Indenture.
This Note is transferable by the Holder hereof, in person or by duly
authorized attorney, on books of the Company to be kept for that purpose at the
principal corporate trust office of the Trustee, upon surrender and cancellation
of this Note and on presentation of a duly executed written instrument of
transfer, and thereupon a new Note or Notes of the same series, of the same
aggregate principal amount and in authorized denominations, will be issued to
the transferee or transferees in exchange therefor; and this Note, with or
without others of the same series, may in like manner be exchanged for one or
more new Notes of the same series of other authorized denominations but of the
same aggregate principal amount; all upon payment of the charges and subject to
the terms and conditions set forth in the Indenture.
The Company and the Trustee may deem and treat the Person in whose
name this Note is registered as the absolute owner hereof for the purpose of
receiving payment of, or on account of, the principal hereof and interest due
hereon, and for all other purposes, and neither the Company nor the Trustee
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, or the
interest or Yield-Maintenance Amount (if any) on, this Note, or for any claim
based hereon or on the Indenture or any Indenture Supplemental thereto, against
any partner, past, present or future, of the Company (including the General
Partner), or of any predecessor or successor, heir or assignee of any such
partner as such, or any stockholder, director, officer or employee of any such
partner, either directly or through the Company or any such predecessor or
successor, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise, all such
4
liability, whether at common law, in equity, by any constitution, statute or
otherwise, being released by every owner hereof by the acceptance of this Note
and as part of the consideration for the issue hereof, and being likewise
released by the terms of the Indenture.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings set forth in the Indenture.
This Note shall not be entitled to any benefits under the Indenture or
any Indenture Supplemental thereto, or become valid or obligatory for any
purpose, until PNC Bank, National Association, the Trustee under the Indenture,
or a successor Trustee thereto under the Indenture, shall have signed the
certificate imprinted hereon.
THIS NOTE IS INTENDED TO BE PERFORMED IN THE STATE OF NEW YORK AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAW OF SUCH STATE,
WITHOUT GIVING EFFECT (TO THE EXTENT PERMITTED BY APPLICABLE LAW) TO ITS
CONFLICTS OF LAW PRINCIPLES.
IN WITNESS WHEREOF, Buckeye Pipe Line Company, L.P. has caused this
Note to be signed in its name by its General Partner.
Dated: ___________ BUCKEYE PIPE LINE COMPANY, L.P.
By: Buckeye Pipe Line Company,
a Delaware Corporation,
as General Partner
By:_________________________
[Vice] President
(Corporate Seal)
Attest:
________________________________
[Assistant] Secretary of
Buckeye Pipe Line
Company, a Delaware
Corporation
5
[FORM OF TRUSTEE'S CERTIFICATE]
This Note is one of the 1997 Notes, of the series designated therein,
described in the within-mentioned Indenture.
PNC BANK, NATIONAL ASSOCIATION,
Trustee
By:___________________________________
Authorized Signatory
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That Buckeye Pipe Line Company, L.P., in consideration of the premises
and of the mutual covenants herein contained and of the purchase and acceptance
of the Notes by the Holders thereof and of the sum of One Dollar to it duly paid
by the Trustee at or before the execution and delivery of this Indenture, and
for other valuable consideration, the receipt whereof is hereby acknowledged,
and in order to declare the terms and conditions upon and subject to which the
Notes are issued, has executed and delivered this Indenture in amendment and
restatement of the Original Indenture, and such Original Indenture is hereby
amended and restated in its entirety as follows:
IT IS HEREBY COVENANTED, DECLARED AND AGREED, by and between the
parties hereto, that all the Notes are to be issued, authenticated and delivered
subject to the further covenants, conditions, uses and trusts hereinafter set
forth; and the Company, for itself and its successors, does hereby covenant and
agree to and with the Trustee and its successors in said trust for the benefit
of those who shall hold the Notes, or any of them, as follows:
ARTICLE ONE
DEFINITIONS; ACCOUNTING PRINCIPLES
(S) 1.01. Certain Definitions. The terms defined in this (S) 1.01
shall, for all purposes of this Indenture and of all Indentures Supplemental
hereto hereafter entered into in accordance with the provisions hereof, have the
meanings herein specified, unless the context otherwise specifies or requires.
Unless herein otherwise defined, all terms used in this Indenture which are
defined in the Trust Indenture Act of 1939, shall have the meanings assigned to
them in such Act, unless the context otherwise specifies or requires.
"ADDITIONAL NOTES" shall mean any Notes authorized and delivered under
this Indenture or an Indenture Supplemental hereto other than the 1997 Notes.
6
"AFFILIATE" shall mean any Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with, the Company,
except a Subsidiary. A Person shall be deemed to control another Person if such
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise.
"BANKRUPTCY LAW" shall have the meaning specified in paragraph (h) of
(S) 7.01.
"BOARD OF DIRECTORS" shall mean the board of directors of the General
Partner or, in the case of any authority delegated to the Executive Committee of
the General Partner, such Executive Committee of the General Partner.
"BP MICHIGAN" shall Buckeye Pipe Line Company of Michigan, L.P., a
Delaware limited partnership.
"BP PIPELINE SYSTEM" shall mean the pipeline facilities operated by
the Company for the gathering, transmission and distribution of crude oil and
refined petroleum products.
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday or a
day on which commercial banks in New York City or the city in which the
principal corporate trust office of the Trustee is located are required or
authorized to be closed.
"CALLED PRINCIPAL" shall mean, with respect to any 1997 Note, the
principal of such Note that is to be prepaid pursuant to (S) 6.02 or is declared
to be immediately due and payable pursuant to (S) 7.01, as the context requires.
"CAPITAL IMPROVEMENTS" shall mean additions, improvements and repairs
to the Pipeline Assets, the cost of which is capitalized on the books of the
Company or any of its Restricted Affiliates in accordance with GAAP or
applicable rules and regulations of governmental agencies having rate making
jurisdiction over the Pipeline Systems.
"CAPITALIZED LEASE OBLIGATION" shall mean any rental obligation which,
under generally accepted accounting principles, would be required to be
capitalized on the books of the Company or any Subsidiary, taken at the amount
thereof accounted for as indebtedness (net of interest expense) in accordance
with such principles.
"CERTIFIED RESOLUTION" shall mean a copy of a resolution of the Board
of Directors certified by the Secretary or an Assistant Secretary of the General
Partner, under its corporate seal, to have been duly adopted and to be in full
force and effect on the date of such certification.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
7
"COMPANY" shall mean Buckeye Pipe Line Company, L.P., a limited
partnership organized under the laws of the State of Delaware.
"CONSOLIDATED INTEREST EXPENSE" shall mean, with respect to any
period, the sum (without duplication, and in each case eliminating all
offsetting debits and credits between the Company and its Restricted Affiliates
and all other items required to be eliminated in the course of the preparation
of consolidated or combined financial statements of the Company and its
Restricted Affiliates in accordance with GAAP) of all interest and prepayment
charges in respect of the Company and its Restricted Affiliates (including
imputed interest in respect of Capitalized Lease Obligations and net costs of
Swaps); provided, that (i) there shall be excluded any interest paid or payable
with respect to the Defeased Notes and (ii) Consolidated Interest Expense shall
be subject to adjustment as provided in (S) 1.02.
"CONSOLIDATED NET INCOME" shall mean, with respect to any period, the
net income (or loss) of the Company and its Restricted Affiliates for such
period (taken as a cumulative whole), as determined in accordance with GAAP,
after eliminating all offsetting debits and credits between the Company and its
Restricted Affiliates and all other items required to be eliminated in the
course of the preparation of consolidated or combined financial statements of
the Company and its Restricted Affiliates in accordance with GAAP, provided that
(i) there shall be excluded any income or gain (or loss) during such period from
any change in accounting principles, from any extraordinary non-cash items or,
in the case of a successor to the Company or any Restricted Subsidiary by
consolidation or merger or as a transferee of its assets, any earnings of the
successor entity prior to such consolidation, merger or transfer of assets; (ii)
there shall be excluded any income from interest received in respect of
obligations of the United States Treasury held by the Trustee in trust in
connection with the Defeased Notes; (iii) interest expense arising from payment
by the Company of the Yield-Maintenance Premium (as defined in the Original Note
Indenture) or other premium paid to purchase the First Mortgage Notes shall not
be deducted in calculating Consolidated Net Income; and (iv) Consolidated Net
Income shall be subject to adjustment as provided in paragraph (S) 1.02.
"CONSOLIDATED TANGIBLE ASSETS" shall mean the consolidated or combined
total assets of the Company and its Restricted Affiliates less, without
duplication, (i) intangible assets including, without limitation, goodwill,
research and development costs, trademarks, trade names, patents, franchises,
copyrights, licenses, experimental or organizational expense, unamortized debt
discount and expense carried as an asset, all reserves and any write-up in the
book value of assets made after September 30, 1997 (other than write-ups of
assets of a going concern business made within 12 months after the acquisition
of such business), net of accumulated amortization, and (ii) all reserves for
depreciation and other asset valuation reserves (but excluding reserves for
federal, state and other income taxes).
8
"COUNSEL" shall mean an attorney at law, licensed to practice before
the highest court of any State of the United States of America. Counsel may
include a Person who may be of counsel to, or employed by, the Company, the
General Partner, or any Affiliate of either of them, appointed by the General
Partner and acceptable to the Trustee.
"DEFAULT" has the meaning set forth in the definition of "EVENT OF
DEFAULT" in this (S) 1.01.
["DEFEASED NOTES" SHALL MEAN THE COMPANY'S 11.18% SERIES J FIRST
MORTGAGE NOTES DUE 2006, IN THE ORIGINAL AGGREGATE PRINCIPAL AMOUNT OF
$___________, DEFEASED ON THE DATE HEREOF IN ACCORDANCE WITH THE PROVISIONS OF
THE DEFEASANCE TRUST AGREEMENT AND ARTICLE FOURTEEN OF THE ORIGINAL INDENTURE.]
"DISCOUNTED VALUE" shall mean, with respect to the Called Principal of
any 1997 Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective scheduled
due dates to the Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a discount factor (applied on
the same periodic basis as that on which interest on such Note is payable) equal
to the Reinvestment Yield with respect to such Called Principal.
"EBITDA" shall mean for the Company and its Restricted Affiliates with
respect to any period, the sum of Consolidated Net Income plus, to the extent
deducted in the determination of Consolidated Net Income, (i) all provisions for
federal, state and other income tax, (ii) Consolidated Interest Expense, and
(iii) provisions for depreciation and amortization, less extraordinary items,
gains on sales of assets and income from discontinued operations, which in the
aggregate will be deducted only to the extent they are positive, less, in the
case of items (i) through (iii), deductions for amounts attributable to minority
interests in Subsidiaries; provided, that EBITDA shall be subject to adjustment
as provided in paragraph (S) 1.02.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ERISA AFFILIATE" shall mean any corporation which is a member of the
same controlled group of corporations as the Company within the meaning of
section 414(b) of the Code, or any trade or business which is under common
control with the Company within the meaning of section 414(c) of the Code.
"EVENT OF DEFAULT" shall mean any of the events specified in (S) 7.01
hereof, provided that there has been satisfied any requirement in connection
with such event for the giving of notice, or the lapse of time, or the happening
of any further condition, event or act, and "DEFAULT" shall mean any of such
events, whether or not any such requirement has been satisfied.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
9
"GENERAL PARTNER" shall mean Buckeye Pipe Line Company, a Delaware
corporation, the general partner of the Company and of BP Michigan and Laurel.
"INDEBTEDNESS" shall mean, with respect to any Person or consolidated
or combined group of Persons, the following: (i) all items (excluding items of
contingency reserves or of reserves for deferred income taxes) which under GAAP
are shown on the balance sheet as a liability (including, without limitation,
Capitalized Lease Obligations, but excluding trade accounts payable in the
ordinary course of business and accrued expenses shown as current liabilities);
(ii) indebtedness secured by any Lien existing on property owned subject to such
Lien, whether or not the indebtedness secured thereby shall have been assumed;
(iii) guarantees, endorsements (other than endorsement of negotiable instruments
for collection in the ordinary course of business) and other contractual
commitments (whether direct or indirect in connection with obligations, stock or
dividends of any Person); (iv) mandatorily redeemable preferred stock; (v)
Swaps; and (vi) unfunded pension liabilities.
"INDENTURE" shall mean this instrument and all Indentures
Supplemental hereto.
"INSTITUTIONAL NOTEHOLDER" shall have the meaning set forth in
(S) 12.05.
"LAUREL" shall mean Laurel Pipe Line Company, L.P., a Delaware
limited partnership.
"LAUREL PIPELINE SYSTEM" shall mean the pipeline facilities operated
by Laurel for the gathering, transmission and distribution of crude oil and
refined petroleum products.
"LIEN" shall mean any mortgage, pledge, priority, security interest,
encumbrance, contractual deposit arrangement, lien (statutory or otherwise) or
charge of any kind (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any production payment, any
lease in the nature thereof, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction) or
any other type of preferential arrangement for the purpose, or having the
effect, of protecting a creditor against loss or securing the payment or
performance of an obligation.
"MATERIAL ADVERSE EFFECT" shall mean (i) an impairment of the
operation by the Company and its Restricted Affiliates of the Pipeline Systems
which materially adversely affects the manner in which the Pipeline Systems,
taken as a whole, have been operated by the Company and its Restricted
Affiliates (whether due to damage to, or a defect in the right, title or
interest of the Company or any of its Restricted Affiliates in and to, any of
the Pipeline Assets or for any other reason) or (ii) a material decline in the
financial condition or results of operations or business prospects of the
Company and its Restricted Affiliates, taken as a whole, or (iii) an inability
of the Company to make timely payments of principal and interest on the Notes,
in each case as a result (whether or not simultaneous) of the occurrence of one
or more events and/or the materialization or
10
failure to materialize of one or more conditions and/or the taking of or failure
to take one or more actions described in this Indenture by reference to a
Material Adverse Effect.
"MULTIEMPLOYER PLAN" shall mean any Plan which is a "multiemployer
plan" (as such term is defined in section 4001(a)(3) of ERISA).
"1997 NOTE AGREEMENT" shall mean the Note Agreement dated as of
December 16, 1997 between the Company and The Prudential Insurance Company of
America.
"1997 NOTES" shall have the meaning set forth in (S) 2.12.
"NOTE" or "NOTES" shall mean any Note or Notes, as the case may be,
authenticated and delivered under this Indenture.
"NOTEHOLDERS" or "HOLDERS OF THE NOTES" or "HOLDERS" shall mean the
Registered Owners of the Notes. Any reference to a particular percentage or
proportion of the Noteholders, or to a particular percentage or proportion of
the Holders of Notes of a particular series, shall mean the Holders at the
particular time of the specified percentage or proportion in aggregate principal
amount of all Notes then Outstanding under this Indenture, or of all Notes of
the particular series then Outstanding under this Indenture, as the case may be,
exclusive of Notes or of Notes of the particular series, as the case may be, the
record or beneficial ownership of which is held by the Company or any of its
Affiliates.
"OFFICERS' CERTIFICATE" shall mean a certificate signed by the
President or a Vice President of the General Partner and the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of the General
Partner.
"ORIGINAL INDENTURE" shall have the meaning set forth in the recitals
to this Indenture.
"OUTSTANDING" when used with respect to Notes shall mean as of any
particular time all Notes theretofore authenticated and delivered under this
Indenture, except (i) Notes canceled at or prior to the particular time and (ii)
Notes in lieu of and in substitution for which other Notes shall have been
authenticated and delivered under the circumstances and in the manner provided
in Article Two.
"PARTNERSHIP AGREEMENT" shall mean the Amended and Restated Agreement
of Limited Partnership of the Company, dated November 18, 1986, as amended by
that certain Amendment No. 1 to Amended and Restated Agreement of Limited
Partnership dated as of August 12, 1997, and as further amended, restated or
otherwise modified from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
successor entity.
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"PERSON" shall mean an individual, a corporation, a partnership, a
joint venture, a limited liability company, an association, a trust or any other
entity or organization, including a government or political subdivision or an
agency or instrumentality thereof.
"PIPELINES" shall mean pipelines for the gathering, transmission or
distribution of crude oil or refined petroleum products.
"PIPELINE ASSETS" shall mean properties or assets comprising parts of,
or used or useful in connection with, the Pipeline Systems.
"PIPELINE SYSTEMS" shall mean the BP Pipeline System, the Laurel
Pipeline System and any other pipeline facilities at any time operated by the
Company or any of its Restricted Affiliates for the gathering, transmission and
distribution of crude oil and refined petroleum products.
"PLAN" shall mean any "employee pension benefit plan" (as such term is
defined in section 3 of ERISA) which is or has been established or maintained,
or to which contributions are or have been made, by the Company or any ERISA
Affiliate.
"PRIORITY DEBT" shall mean, without duplication, the sum of (i) all
Indebtedness of the Company secured by Liens permitted to exist pursuant to
clauses (o) and (s) of (S) 5.02, (ii) all Indebtedness of Restricted Affiliates
(other than Indebtedness owed to the Company or a wholly owned Restricted
Subsidiary of the Company), and (iii) all Sale-Leaseback Attributable Debt of
the Company and its Restricted Affiliates.
"PRIOR LIENS" shall mean any mortgages, liens or other encumbrances
not created by the Company or any or its Restricted Affiliates, which at any
time are liens upon the lands over which the Company or any of its Restricted
Affiliates holds easements or rights-of-way for Pipeline purposes, or upon
properties with respect to which the Company's or such Restricted Affiliate's
interest is subordinate to any such lien, and which do not secure bonds, notes,
other indebtedness, taxes, assessments or other charges which have been assumed
or guaranteed by the Company or any of its Restricted Affiliates or for which
the Company or any of its Restricted Affiliates has otherwise become liable or
on which the Company or any of its Restricted Affiliates customarily pays
interest charges.
"PRIOR LIEN OBLIGATIONS" shall mean obligations secured by "PRIOR
LIENS".
"PUBLIC PARTNERSHIP" shall mean Buckeye Partners, L.P., a Delaware
limited partnership.
"REGISTERED OWNER" shall mean the Person or Persons in whose name or
names a Note shall be registered on the books of the Company kept for that
purpose in accordance with the terms of this Indenture.
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"REINVESTMENT YIELD" shall mean, with respect to the Called Principal
of any 1997 Note, 0.50% plus the yield to maturity implied by (i) the yields
reported, as of 10:00 A.M. (New York City local time) on the Business Day next
preceding the Settlement Date with respect to such Called Principal, on the
display designated as "page 678" on the Telerate Service (or such other display
as may replace page 678 on the Telerate Service) for actively traded U.S.
Treasury securities having a maturity equal to the Remaining Average Life of
such Called Principal as of such Settlement Date, or if such yields shall not be
reported as of such time or the yields reported as of such time shall not be
ascertainable, (ii) the Treasury Constant Maturity Series yields reported, for
the latest day for which such yields shall have been so reported as of the
Business Day next preceding the Settlement Date with respect to such Called
Principal, in Federal Reserve Statistical Release H.15 (519) (or any comparable
successor publication) for actively traded U.S. Treasury securities having a
constant maturity equal to the Remaining Average Life of such Called Principal
as of such Settlement Date. Such implied yield shall be determined, if
necessary, by (a) converting U.S. Treasury bill quotations to bond-equivalent
yields in accordance with accepted financial practice and (b) interpolating
linearly between yields reported for various maturities.
"REMAINING AVERAGE LIFE" shall mean, with respect to the Called
Principal of any 1997 Note, the number of years (calculated to the nearest one-
twelfth year) obtained by dividing (i) such Called Principal into (ii) the sum
of the products obtained by multiplying (a) each Remaining Scheduled Payment of
such Called Principal (but not of interest thereon) by (b) the number of years
(calculated to the nearest one-twelfth year) which will elapse between the
Settlement Date with respect to such Called Principal and the scheduled due date
of such Remaining Scheduled Payment.
"REMAINING SCHEDULED PAYMENTS" shall mean, with respect to the Called
Principal of any 1997 Note, all payments of such Called Principal and interest
thereon that would be due on or after the Settlement Date with respect to such
Called Principal if no payment of such Called Principal were made prior to its
scheduled due date.
"REQUIRED HOLDER(S)" shall mean, with respect to the Notes of any
series issued hereunder, the Holder or Holders of at least 51% of the aggregate
principal amount of the Notes such series from time to time Outstanding.
"RESPONSIBLE OFFICER" shall mean the chief executive officer, chief
operating officer, chief financial officer or chief accounting officer of the
General Partner or any other officer of the General Partner involved principally
in its financial administration or its controllership function.
"RESPONSIBLE OFFICERS OF THE TRUSTEE" shall mean the chairman of the
board of directors, the vice-chairman of the board of directors. the president,
the chairman of the trust committee, every vice-president, every assistant vice-
president, the secretary, every assistant secretary, the treasurer, every trust
officer, every assistant trust officer, and every other officer and assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers respectively or
to whom any corporate trust matter is referred because of his knowledge of and
familiarity with a particular subject.
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"RESTRICTED AFFILIATES" shall mean the Restricted Subsidiaries,
Laurel and BP Michigan.
"RESTRICTED SUBSIDIARY" shall mean a Subsidiary of the Company that
has not been designated by the Board of Directors at its creation as an
Unrestricted Subsidiary. The Company may thereafter redesignate an Unrestricted
Subsidiary as a Restricted Subsidiary and it will thereafter be a Restricted
Subsidiary; provided, that such Restricted Subsidiary may not thereafter be
redesignated as an Unrestricted Subsidiary, and provided, further, that no
Subsidiary may be designated as an Unrestricted Subsidiary at any time other
than at its creation.
"SALE-LEASEBACK ATTRIBUTABLE DEBT" shall mean, as to any particular
lease relating to a Sale-Leaseback Transaction, the amount of the net sale
proceeds derived from the sale or transfer by the Company or any Restricted
Affiliate of the property involved.
"SALE-LEASEBACK TRANSACTION" shall mean a transaction or series of
transactions pursuant to which the Company or any Restricted Affiliate shall
sell or transfer to any Person any property, whether now owned or hereafter
acquired, and as part of the same transaction or series of transactions, the
Company or any Restricted Affiliate shall rent or lease as lessee, or similarly
acquire the right to possession or use of, such property or one or more
properties which it intends to use for the same purpose or purposes as such
property.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SETTLEMENT DATE" shall mean, with respect to the Called Principal of
any 1997 Note, the date on which such Called Principal is to be prepaid pursuant
to (S) 6.02 or is declared to be immediately due and payable pursuant to (S)
7.01, as the context requires.
"SIGNIFICANT HOLDER" shall mean any Holder of at least 5% of the
aggregate principal amount of Notes then Outstanding.
"SIXTH SUPPLEMENT" shall have the meaning set forth in the recitals
to this Indenture.
"SUBSIDIARY" shall mean any corporation or other entity of which the
Company owns, directly or indirectly, at least 80% of the voting securities or
interests therein.
"SUPPLEMENTAL INDENTURE" or "INDENTURE SUPPLEMENTAL" shall mean any
Indenture hereafter duly authorized and entered into in accordance with the
provisions of this Indenture.
"SWAPS" shall mean with respect to any Person, payment obligations
with respect to interest rate swaps, currency swaps and similar obligations
obligating such Person to make payments, whether periodically or upon the
happening of a contingency. For the purposes of this Indenture, the amount of
the obligation under any Swap shall be the amount determined in respect thereof
as of the end of the then most recently ended fiscal quarter of such Person,
based on the
14
assumption that such Swap had terminated at the end of such fiscal quarter, and
in making such determination, if any agreement relating to such Swap provides
for the netting of amounts payable by and to such Person thereunder or if any
such agreement provides for the simultaneous payment of amounts by and to such
Person, then in each such case, the amount of such obligation shall be the net
amount so determined.
"TOTAL INDEBTEDNESS" shall mean the total Indebtedness of the Company
and its Restricted Affiliates, on a consolidated or combined basis, excluding
Indebtedness of the Company represented by the Defeased Notes.
"TRANSFEREE" shall mean any direct or indirect transferee of all or
any part of any Note purchased by you under this Agreement.
"TRUSTEE" shall mean PNC Bank, National Association, or the Trustee
under this Indenture for the time being, whether original or successor.
"TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939, as
amended.
"UNRESTRICTED SUBSIDIARY" shall mean a Subsidiary of the Company that
has been designated by the Board of Directors as an "Unrestricted Subsidiary" at
the time of its creation; provided that no Indebtedness or other obligation of
such Unrestricted Subsidiary may be assumed or guaranteed by the Company or any
Restricted Subsidiary, nor may any asset of the Company or any Restricted
Subsidiary, directly or indirectly, contingently or otherwise, become encumbered
or otherwise subject to the satisfaction thereof.
"YIELD-MAINTENANCE AMOUNT" shall mean (i) with respect to any 1997
Note, an amount equal to the excess, if any, of the Discounted Value of the
Called Principal of such 1997 Note over the sum of (a) such Called Principal
plus (b) interest accrued thereon as of (including interest due on) the
Settlement Date with respect to such Called Principal, and (ii) with respect to
any Additional Note, the "Yield-Maintenance Amount" as defined in the
Supplemental Indenture under which such Additional Note is authorized, issued
and delivered. The Yield-Maintenance Amount shall in no event be less than
zero.
(S) 1.02. ACCOUNTING PRINCIPLES. All references in this Agreement to
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" or to "GAAP" shall be deemed to refer
to generally accepted accounting principles in effect in the United States at
the time of application thereof, as set forth in the opinions and pronouncements
of the Accounting Principles Board and the American Institute of Certified
Public Accountants, consistently applied. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all determinations with
respect to accounting matters hereunder shall be made, and all unaudited
financial statements and certificates and reports as to financial matters
required to be furnished hereunder shall be prepared, in accordance with GAAP,
applied on a basis consistent with the most recent audited consolidated
financial statements of the Company and its Restricted Affiliates delivered
pursuant to paragraph (b) of (S) 4.01 or, if no such
15
statements have been so delivered, the most recent audited financial statements
of the Public Partnership. Notwithstanding anything in this Indenture to the
contrary, for purposes of the financial covenant set forth in (S) 5.01, EBITDA,
Total Indebtedness, Consolidated Net Income and Consolidated Interest Expense,
for the period of the most recently ended four consecutive fiscal quarters of
the Company prior to the fiscal quarter of the Company in which any Person
becomes a Restricted Affiliate, or is merged into or consolidated with the
Company or a Restricted Affiliate, or all or substantially all of the assets of
which have been acquired by the Company or a Restricted Affiliate, shall be
deemed to include the Indebtedness, net income and interest expense, as
applicable, of such Person (or the consolidated Indebtedness, consolidated net
income and consolidated interest expense of such Person and its subsidiaries, as
the case may be) during such four consecutive fiscal quarters, with each such
item calculated as though such Person (or such Person and its subsidiaries, as
the case may be) had been a Restricted Affiliate at all times during such
period, or had been merged into or consolidated with the Company or a Restricted
Affiliate, or all or substantially all of the assets of which had been acquired
by the Company or a Restricted Affiliate on the day immediately preceding the
commencement of such period, subject, however, to adjustment as agreed to in
writing by the Company, the Holder(s) of not less than 51% in aggregate
principal amount of 1997 Notes then Outstanding and the Required Holder(s) of
each other series of Notes issued hereunder.
ARTICLE TWO
DESCRIPTION AND MANNER OF EXECUTION, AUTHENTICATION
AND REGISTRATION OF NOTES
(S) 2.01. SERIES; DESIGNATIONS. The Notes may, at the election
of the Board of Directors, be in one or more series and shall be designated
generally as the Senior Notes of the Company, with such further appropriate
particular designation added to, or incorporated in, or eliminated from, such
title, for the Notes of any particular series, as the Board of Directors may
determine. Each Note shall bear upon the face thereof the designation so
selected for the series to which it belongs. All Notes of any one series at any
time simultaneously Outstanding shall be identical in respect of date of
maturity, the place or places of payment of principal and of interest, the rate
or rates of interest and dates of interest payments and the terms of required
and optional prepayment or redemption, if prepayable or redeemable, the terms of
convertibility, if convertible, and in respect of sinking fund and analogous
provisions (if any). The Notes of each series may be issued in denominations of
$1,000 and any integral multiple thereof or in such denominations as are
otherwise provided for in the Supplemental Indenture authorizing the issuance
thereof.
(S) 2.02. VARIATIONS AND SPECIAL PROVISIONS. Subject to the provisions
contained in this Indenture with respect to the 1997 Notes, the Notes of any
series:
(a) shall be issued in registered form only, be limited to the
aggregate principal amount stated in the Supplemental Indenture authorizing
the issuance thereof, bear interest
16
at such rate or rates and be payable, as to principal, interest and
premium, if any, at such time or times and at such place or places as may
be determined by the Board of Directors and expressed in such Notes;
(b) shall be payable in any coin or currency of the United States of
America, which at the time of payment is legal tender for public or private
debts;
(c) may be prepayable or redeemable, at the option of the Company, at
such prepayment premium or redemption price or prices, at such time or
times, upon such notice, in such manner and upon such other terms and
conditions not inconsistent with the provisions of this Indenture, as may
be determined by the Board of Directors and expressed or referred to in
such Notes;
(d) may be convertible into or exchangeable for, at the option of the
Holders thereof, equity interests in any entity, at such times and upon
such terms and conditions and subject to such adjustments as may be
determined by the Board of Directors and expressed or referred to in such
Notes;
(e) may contain such provisions, if any, for the establishment of a
purchase, sinking, amortization, improvement, or analogous fund therefor,
in such amounts, at such time or times, in such manner and upon such other
terms and conditions, and for the retirement or redemption of such Notes by
the operation of any such fund or otherwise, at such price or prices, in
such amounts, at such time or times, in such manner and upon such other
terms and conditions as may be determined by the Board of Directors and
expressed or referred to in such Notes;
(f) may contain such provisions with respect to serial maturities,
interest rate, prepayment premium or redemption price or prices,
convertibility, anticipation of maturity on the happening of a specified
event, and such other special terms and conditions, not contrary to the
provisions hereof, as may be determined by the Board of Directors and
expressed or referred to in such Notes; and
(g) shall be in the form or forms provided in the Supplemental
Indenture providing for the issuance of Notes of such series, which form or
forms shall be in substantially the same forms as are set forth in the
recitals hereto with respect to the 1997 Notes, with such omissions
therefrom, variations therein and additions thereto as shall be
appropriate.
(S) 2.03. BOOKS FOR REGISTRATION AND TRANSFER OF NOTES. The Company
shall cause the Trustee to keep, at the principal corporate trust office of the
Trustee, books for the registration and transfer of Notes entitled to
registration and transfer; and, upon presentation for such purpose at such
office, the Company will register or transfer or cause to be registered or
transferred therein, as hereinafter provided and under such reasonable
regulations as it may prescribe, any Notes entitled
17
to be so registered or transferred. Similar books shall also be kept at such
other place or places as the General Partner may determine, for the registration
and transfer of the Notes of any particular series, open in like manner for
inspection by the Trustee, in which the Notes of such series may be registered
and transferred upon the terms and in the manner in this Article Two provided;
and such other place or places may (but need not) be appropriately recited in
the Notes of such series.
(S) 2.04. TRANSFER AND DATE OF NOTES. Any Note may be transferred at
the principal corporate trust office of the Trustee as provided in (S) 2.03,
upon the surrender of such Note for cancellation accompanied by delivery of a
written instrument of transfer in a form approved by the Company, duly executed
by the Holder of such Note, and thereupon the Company shall execute, in the name
of the transferee or transferees and the Trustee shall authenticate and deliver,
a new Note, or new Notes, of like form, of the same series for the same
aggregate principal amount. A Note, with or without others of like form, series
and maturity, may, upon surrender thereof to the Company, be exchanged for one
or more such Notes for the same aggregate principal amount, of the series and
maturity, in authorized denominations. Except as provided in (S) 2.06, every
Note shall be dated as of the date it is authenticated and delivered (except
that if any Note shall be authenticated and delivered on any interest payment
date it shall be dated as of the day next following such interest payment date)
and shall bear interest from the interest payment date next preceding the date
of such Note to which interest has been paid or the date of original delivery of
the Notes of such series if no interest has been paid on Notes of such series.
(S) 2.05. DEEMED OWNERS OF NOTES. The Person in whose name a Note is
registered shall be deemed and regarded as the absolute owner thereof for all
purposes of this Indenture; and all payments of the principal of and interest
(and Yield-Maintenance Amount, if any) on such Note shall be made only to or
upon the order in writing of such Registered Owner thereof. All such payments
shall be valid and effectual to satisfy and discharge the liability upon such
Notes to the extent of the sum or sums so paid.
(S) 2.06. MANNER AND CONDITIONS OF EXCHANGE. Any Notes to be
transferred or exchanged shall be surrendered at such office or agency of the
Company as shall be designated by the Board of Directors for the purpose, and
accompanied, in the case of a transfer, by duly executed instruments of
transfer, and the Company shall execute, and the Trustee shall authenticate and
deliver in exchange therefor, the Note or Notes which the Noteholder making the
exchange shall be entitled to receive.
Each Note issued in exchange or in substitution for the whole, or any
part, of one or more other Notes of the same series, shall carry all of the
rights to interest accrued and unpaid, and to accrue, which were carried by the
whole, or such part, as the case may be, of such one or more other Notes, and
notwithstanding anything contained in this Indenture, such Notes shall be so
dated that neither gain nor loss in interest shall result from such exchange or
substitution.
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All Notes so surrendered for exchange or transfer shall be presented
to the Trustee for cancellation, and the Trustee shall forthwith cancel the
same, and, on the written request of the Company, deliver the same to the
Company.
All Notes executed, authenticated and delivered in exchange for Notes
so surrendered, or upon transfer of Notes, shall be the valid obligations of the
Company, evidencing the same Indebtedness as the Notes surrendered, and shall be
entitled to the benefits of this Indenture to the same extent as the Notes in
exchange for which they were authenticated and delivered.
(S) 2.07. NUMBERS, DESIGNATIONS, LEGENDS, ETC. Any Note may bear
such numbers, letters, or other marks of identification or designation, and may
be endorsed with, or have incorporated in the text thereof, such legends or
recitals with respect to transferability or in respect of the Note or Notes for
which it is exchangeable and may contain such provisions, specifications and
descriptive words, not inconsistent with the provisions of this Indenture, as
may be determined by the Board of Directors, as may be required to comply with
the rules and regulations of any stock exchange upon which the Notes of such
series are, or are to be, listed or to conform with any usage with respect
thereto.
(S) 2.08. EXECUTION OF NOTES. All the Notes shall, from time to time,
be executed on behalf of the Company by the General Partner by the signature of
its President or one of its Vice-Presidents and its Secretary or one of its
Assistant Secretaries.
In case any of the officers who shall have signed any of said Notes
shall cease to be such officers of the General Partner before the Notes so
signed and sealed shall have been actually authenticated by the Trustee or
delivered by the Company, such Notes nevertheless may be authenticated and
delivered with the same force and effect as though the person or persons who
signed such Notes had not ceased to be such officer or officers; and any such
Note may be signed on behalf of the Company by such persons as at the actual
date of the execution of such Note shall be the proper officers of the General
Partner, although at the nominal date of such Note any such person shall not
have been such officer.
(S) 2.09. MUTILATED, DESTROYED, LOST OR STOLEN NOTES. Upon receipt by
the General Partner and the Trustee of evidence satisfactory to both of them
that any Note has been mutilated, destroyed, lost or stolen, and of indemnity
satisfactory to both of them, except that an Institutional Noteholder may
provide an agreement of indemnity, the General Partner, in its discretion, may
cause to be executed, and thereupon the Trustee shall authenticate and deliver,
a new Note of the same series and of like tenor (which may bear such notation as
may be required by the rules of any stock exchange upon which the Notes of such
series are listed or are to be listed), in exchange and substitution for, and
upon surrender and cancellation of, the mutilated Note or in lieu of, and in
substitution for, the Notes so destroyed, lost or stolen. Any Note issued under
the provisions of this (S) 2.09 in lieu of any Notes alleged to be destroyed,
lost or stolen, shall constitute an original additional contractual obligation
on the part of the Company whether or not the Notes so alleged to be destroyed,
lost or stolen be at any time enforceable by anyone, and shall be equally and
19
proportionately entitled to the benefits of this Indenture with all other Notes
issued under this Indenture.
All mutilated Notes surrendered to the Trustee pursuant to the
provisions of this (S) 2.09 shall be canceled by the Trustee and delivered to
the Company.
(S) 2.10. FORM AND AUTHENTICATION OF NOTES. Subject to the
qualifications hereinbefore in this Article Two set forth, the Notes to be
entitled to the benefits of this Indenture shall be substantially of the tenor
and effect hereinbefore recited; and no Notes shall be entitled to the benefit
hereof, or shall be, or become, valid or obligatory for any purpose unless there
shall be endorsed thereon a certificate of authentication, substantially in the
form hereinbefore recited, executed by the Trustee, and such certificate on any
Notes issued by the Company shall be conclusive evidence, and the only competent
evidence, that it has been duly authenticated and delivered hereunder.
(S) 2.11. TERMS OF THE 1997 NOTES. The 1997 Notes entitled to the
benefits of this Indenture consist of the Series 1997A through Series 1997D
Notes, aggregating $240,000,000 principal amount, each series designated as set
forth in the following table:
ANNUAL MAXIMUM
REFERRED TO INTEREST AGGREGATE
DESIGNATION HEREIN AS MATURITY RATE PRINCIPAL AMOUNT/*/
----------- ----------- -------- -------- -------------------
Senior Notes, Series A Notes December 16, 2024 6.98% $125,000,000
6.98% Series
1997A due 2024
Senior Notes, Series B Notes December 16, 2024 6.89% $100,000,000
6.89% Series
1997B due 2024
Senior Notes, Series C Notes December 16, 2024 6.95% $ 10,000,000
6.95% Series
1997C due 2024
Senior Notes, Series D Notes December 16, 2024 6.96% $ 5,000,000
6.96% Series
1997D due 2024
- ------------------
/*/ Except as expressly provided in (S) 2.04, (S) 2.06 and (S) 2.09.
and the Notes of each such series are substantially in the form set forth in the
recitals hereto, are issuable in denominations of $1,000 and any integral
multiple thereof, were executed, authenticated and delivered in accordance with,
and subject to, all of the terms, conditions and covenants of the
20
Original Indenture, are subject to and entitled to the benefits of all of the
terms and conditions of this Indenture, and have the following further terms and
provisions:
(a) Interest on the principal amount of each of the 1997 Notes from
the date of original issue until due and payable, is payable, at the rate
specified in the Note, monthly on the 16th day of each calendar month in
each year and on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any
Yield-Maintenance Amount, payable monthly as aforesaid (or, at the option
of the registered holder hereof, on demand), at a rate per annum from time
to time equal to the greater of (i) 2.0% over the rate specified above with
respect to each series of Notes or (ii) 2.0% over the rate of interest
publicly announced by The Bank of New York from time to time in New York
City as its Prime Rate, as shall be determined by the Trustee.
(b) The 1997 Notes are subject to prepayment only with respect to the
required prepayments specified in (S) 6.01 hereof and the optional
prepayments permitted by (S) 6.02 hereof.
ARTICLE THREE
AUTHENTICATION AND DELIVERY OF NOTES
(S) 3.01. NOTES LIMITED. The aggregate principal amount of Notes
which may be Outstanding under this Indenture at any time (after giving effect
to the authentication and delivery of Additional Notes, the authentication and
delivery of which are being requested and the prepayment or redemption of any
Notes prepaid or redeemed out of the proceeds of such Additional Notes) is
limited to $335,000,000. Except as otherwise herein expressly provided, all
Notes issued hereunder shall in all respects be equally and ratably entitled to
the benefits of this Indenture without preference, priority or distinction, so
that all Notes at any time Outstanding hereunder shall have the same rights
under and by virtue of this Indenture, with like effect as if they had all been
executed, authenticated and delivered simultaneously on the date hereof, whether
the same or any of them shall actually be sold or disposed of at such date, or
whether they, or any of them, shall be sold or disposed of at some future date,
or whether they, or any of them, shall have been authorized to be authenticated
and delivered under (S) 3.02, or may be authorized to be authenticated and
delivered hereafter pursuant to other provisions of this Indenture.
(S) 3.02. AUTHENTICATION OF 1997 NOTES. The 1997 Notes have been duly
and validly authorized and executed by the Company and delivered to the Trustee
and authenticated and delivered by the Trustee pursuant to the terms and
conditions of Sixth Amendment and the Original Indenture, as amended and
supplemented by the Sixth Supplement.
(S) 3.03. REQUIREMENTS FOR AUTHENTICATION OF ADDITIONAL NOTES. The
Company shall file or deposit with the Trustee, upon any application for the
authentication of Additional Notes:
21
(a) A Certified Resolution authorizing the execution and requesting
the authentication and delivery of the Additional Notes applied for in the
principal amount therein specified, designating the series of such Notes,
as created by the terms of an Indenture Supplemental hereto in which are
set out the terms and provisions of such series of Notes, the form thereof,
and such other provisions applicable to such Notes as the Company may
choose; provided that nothing contained in such Supplemental Indenture
shall be inconsistent with any provision of this Indenture, unless the
Required Holder(s) of each series of Notes then Outstanding shall approve,
and naming the officer or officers of the General Partner to whom or upon
whose order such Notes shall be delivered.
(b) An Officers' Certificate, dated as of the date of such
application, stating in substance that:
(i) so far as known to such officers, the Company is not, and by
the making or granting of the application or the issuance and sale of
the Notes for which application is made, will not be, in Default in
the performance of any of the terms and covenants of this Indenture;
and, in the opinion of such officers, all conditions precedent
provided for in this Indenture relating to the authentication and
delivery of the Additional Notes applied for have been complied with;
and
(ii) there will not occur as a result of the issuance of the
Additional Notes applied for any Material Adverse Effect.
(c) A Supplemental Indenture providing for the issuance of the Notes
of such series.
(d) An opinion of Counsel, dated as of the date of such application,
to the effect that:
(i) the issue of the Additional Notes, the authentication and
delivery of which are being applied for, has been duly authorized by
all governmental authorities the consent of which is requisite to the
legal issue of such Notes or that no such consent is required; and,
unless such opinion shall show that no consent of any governmental
authority is requisite to the legal issue of the Additional Notes
applied for, it shall specify any orders, certificates or other
documents by which such consent is evidenced; and
(ii) assuming the accuracy of the statements made in the
Officers' Certificate furnished pursuant to (S) 3.03(b) and 3.03(e),
all conditions precedent provided for in this Indenture relating to
the authentication and delivery of the Additional Notes applied for
have been complied with, and the Company is duly authorized and
entitled to the authentication and delivery of the Additional Notes
applied for in accordance with the provisions of this Indenture and to
issue such
22
Additional Notes under the laws of the State of Delaware and the
applicable laws of any other jurisdiction; upon the issue of such
Notes, such Notes will be valid and binding obligations of the Company
and entitled to the benefits of this Indenture; and the aggregate
principal amount of Notes Outstanding under this Indenture (after
giving effect to the issuance of such Additional Notes and the
prepayment or redemption of any Notes being prepaid or redeemed out of
the proceeds of such Additional Notes) will not exceed the amount at
the time permitted by law or this Indenture.
(e) Either:
(i) an Officers' Certificate (A) stating the purpose for which
the net proceeds of the issuance and sale of the Notes will be
applied, and (B) stating that the aggregate principal amount of the
Notes that will be Outstanding under this Indenture immediately after
the issuance of the Notes applied for (other than Notes issued in
exchange or substitution for Outstanding Notes pursuant to (S) 2.04,
2.06 and 2.09 and Additional Notes issued pursuant to this (S) 3.03 to
provide funds required for the prepayment or redemption of Notes
pursuant to this Indenture) will not exceed the sum of $275,000,000;
or
(ii) upon any application for the authentication of Additional
Notes the net proceeds of the issuance and sale of which are to be
used to prepay or redeem Outstanding Notes, an Officers' Certificate
specifying (A) that the net proceeds of the sale of the Notes applied
for shall be applied in full to the prepayment or redemption of Notes
pursuant to the terms of this Indenture, (B) the principal amount or
the Notes to be prepaid or redeemed, (C) the prepayment or redemption
date and the prepayment premium or redemption price of the Notes to be
prepaid or called for redemption, (D) that the prepayment or
redemption requirements applicable to the Notes to be prepaid or
called for redemption have been complied with, and (E) upon the issue
and sale of the Notes applied for, an Officers' Certificate specifying
the net proceeds of the sale of such Notes, and deposit with the
Trustee the net proceeds of the sale of the Notes applied for and, to
the extent such net proceeds are insufficient for the prepayment or
redemption of the Notes to be prepaid or called for redemption, such
additional funds as shall be required to effect such prepayment or
redemption.
(S) 3.04. PAYMENT DATES. Interest on all Notes shall be payable
only on the 16th day of each calendar month in any calendar year, and any
mandatory prepayments of Notes shall be made only on December 16 in any calendar
year.
23
ARTICLE FOUR
AFFIRMATIVE COVENANTS
The Company hereby covenants, warrants and agrees as follows:
(S) 4.01. Financial Statements; Other Reporting Requirements. The
Company will file with the Trustee and deliver to each Significant Holder in
duplicate:
(a) as soon as practicable and in any event within 60 days after the
end of each quarterly period (other than the last quarterly period) in each
fiscal year, consolidating schedules and combined statements of income,
partners' equity and cash flows of the Company and its Restricted
Affiliates for the period from the beginning of the current fiscal year to
the end of such quarterly period, and a consolidating schedule and combined
balance sheet of the Company and its Restricted Affiliates as at the end of
such quarterly period, setting forth in each case in comparative form
figures for the corresponding period in the preceding fiscal year, all in
reasonable detail and satisfactory in form to the Required Holder(s) and
certified by an authorized financial officer of the Company, subject to
changes resulting from year-end adjustments;
(b) as soon as practicable and in any event within 120 days after the
end of each fiscal year, consolidating schedules and combined statements of
income, partners' equity and cash flows of the Company and its Restricted
Affiliates for such year, and a consolidating schedule and combined balance
sheet of the Company and its Restricted Affiliates as at the end of such
year, setting forth in each case in comparative form corresponding combined
figures from the preceding annual audit, all in reasonable detail and
satisfactory in form to the Required Holder(s) of each series of Notes
issued hereunder and, as to the combined statements, reported on by
independent public accountants of recognized national standing selected by
the Company, whose report shall be without limitation as to the scope of
the audit and satisfactory in substance to the Required Holder(s) of each
series of Notes issued hereunder and, as to the consolidating schedules,
certified by an authorized financial officer of the Company;
(c) promptly upon transmission thereof, copies of all financial
statements, proxy statements, notices and reports as the Public Partnership
shall send to its public unitholders and copies of all registration
statements (without exhibits) and all reports which it files with the
Securities and Exchange Commission (or any governmental body or agency
succeeding to the functions of the Securities and Exchange Commission);
(d) promptly upon receipt thereof, a copy of each other report
submitted to the Company or any of its Restricted Affiliates by independent
accountants in connection with any annual, interim or special audit made by
them of the books of the Company or any of its Restricted Affiliates;
24
(e) as soon as practicable and in any event within ten days after any
Responsible Officer of the Company obtains knowledge (i) of any condition
or event which, in the opinion of management of the Company or any of its
Restricted Affiliates, could reasonably be expected to have a Material
Adverse Effect, other than conditions or events that are not particular to
the Company and its Restricted Affiliates, such as conditions or events
generally affecting the economy or the industries in which the Company and
its Restricted Affiliates are engaged (provided, that such conditions or
events do not affect the Company or any Restricted Affiliate to a
materially greater extent than others in the industries in which the
Company and its Restricted Affiliates are engaged); (ii) that any Person
has given any notice to the Company or any Restricted Affiliate or taken
any other action with respect to a claimed default or event or condition of
the type referred to in paragraph (c) of (S) 7.01; (iii) of the institution
of any litigation involving claims against the Company or any Restricted
Affiliate equal to or greater than $5,000,000 with respect to any single
cause of action or of any adverse determination in any court proceeding in
any litigation involving a potential liability to the Company or any
Restricted Affiliate equal to or greater than $5,000,000 with respect to
any single cause of action which makes the likelihood of an adverse
determination in such litigation against the Company or any Restricted
Affiliate substantially more probable; (iv) of the institution of any
litigation involving the Company or any of its Restricted Affiliates, or of
any adverse determination in any court proceeding in any such litigation,
which could reasonably be expected to have a Material Adverse Effect; or
(v) of any regulatory proceeding in which the Company or any of its
Restricted Affiliates is a party or otherwise subject which could
reasonably be expected to have a Material Adverse Effect, an Officers'
Certificate specifying the nature and period of existence of any such
condition or event, or specifying the notice given or action taken by such
Person and the nature of any such claimed default, event or condition, or
specifying the details of such proceeding, litigation or dispute and what
action the Company or a Restricted Affiliate has taken, is taking or
proposes to take with respect thereto;
(f) promptly after the filing or receiving thereof, copies of all
material reports and notices which the Company or any Restricted Affiliate
files under ERISA with the IRS or the PBGC or the U.S. Department of Labor
or which the Company or any Restricted Affiliate receives from any of the
foregoing entities;
(g) promptly, and in any event within ten days after a Responsible
Officer of the Company becomes aware of any of the following, an Officer's
Certificate setting forth the nature thereof and the action, if any, that
the Company or an ERISA Affiliate proposes to take with respect thereto:
(i) with respect to any Plan, any reportable event, as defined in section
4043 of ERISA and the regulations thereunder, for which notice thereof has
not been waived pursuant to such regulations as in effect on the date
hereof; or (ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings under section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Company or an ERISA Affiliate
of a notice from a Multiemployer Plan that such action has been taken by
the PBGC with re-
25
spect to such Multiemployer Plan; or (iii) any event, transaction or
condition that could result in the incurrence of any liability by the
Company or an ERISA Affiliate pursuant to Title I or IV of ERISA; and
(h) with reasonable promptness, such other information respecting the
condition or operations, financial or otherwise, of the Company or any of
its Restricted Affiliates as any Significant Holder or the Trustee on
behalf of the Holders may reasonably request.
Together with each delivery of financial statements required by paragraphs (a)
and (b) of this (S) 4.01, the Company will file with the Trustee and deliver to
each Significant Holder an Officer's Certificate demonstrating (with
computations in reasonable detail) compliance by the Company and its
Subsidiaries with the provisions of (S) 5.01, paragraph (p) of (S) 5.02 and
(S) 5.03 and stating that there exists no Event of Default or Default, or, if
any Event of Default or Default exists, specifying the nature and period of
existence thereof and what action the Company has taken or proposes to take with
respect thereto. Together with each delivery of financial statements required by
paragraph (b) of this (S) 4.01, the Company will file with the Trustee and
deliver to each Significant Holder a certificate of such accountants stating
that, in making the audit necessary for their report on such financial
statements, they have obtained no knowledge of any Event of Default or Default,
or, if they have obtained knowledge of any Event of Default or Default,
specifying the nature and period of existence thereof. Such accountants,
however, shall not be liable to anyone by reason of their failure to obtain
knowledge of any Event of Default or Default which would not be disclosed in the
course of an audit conducted in accordance with GAAP.
(S) 4.02. REQUIREMENTS UPON QUALIFICATION UNDER TRUST INDENTURE
ACT. In the event that this Indenture shall have been qualified under the Trust
Indenture Act of 1939, the Company will (a) file with the Securities and
Exchange Commission in accordance with the rules and regulations prescribed from
time to time by said Commission and deliver to the Noteholders, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants provided for in this Indenture as may be
required by such rules and regulations, (b) file with the Trustee and deliver to
the Noteholders copies of all such information, documents and reports filed with
the Securities and Exchange Commission, and (iii) deliver to the Noteholders
such summaries of any information, documents and reports required to be filed
with the Trustee pursuant to the provisions of paragraphs (b) and (c) of
(S) 4.01 as may be required by the rules and regulations prescribed from time to
time by the Securities and Exchange Commission.
(S) 4.03. INFORMATION REGARDING NOTEHOLDERS. The Company will
furnish or cause to be furnished to the Trustee at such times as the Trustee may
request in writing, all information in the possession or control of the Company
as to the names and addresses of the Holders of Notes.
(S) 4.04. INFORMATION REQUIRED BY RULE 144A. The Company will, upon
the request of the Holder of any Note, provide such Holder, and any qualified
institutional buyer designated by such Holder, such financial and other
information as such Holder may reasonably determine to be necessary in order to
permit compliance with the information requirements of Rule 144A under the
26
Securities Act in connection with the resale of Notes. For the purpose of this
(S) 4.04, the term "qualified institutional buyer" shall have the meaning
specified in Rule 144A under the Securities Act.
(S) 4.05. INSPECTION OF PROPERTY. The Company will permit, and will
cause each of its Restricted Affiliates to permit, any Person designated by any
Significant Holder in writing, at the Company's expense during the continuance
of a Default or Event of Default and otherwise at such Significant Holder's
expense, to visit and inspect any of the properties of the Company and its
Restricted Affiliates, to examine the corporate books and financial records of
the General Partner, the Company and its Restricted Affiliates and make copies
thereof or extracts therefrom and to discuss the affairs, finances and accounts
of any of such Persons with the principal officers of the General Partner, the
Company or its Restricted Affiliates and their independent public accountants,
all at such reasonable times and as often as such Significant Holder may
reasonably request.
(S) 4.06. COVENANT TO SECURE NOTES EQUALLY. The Company will, if it
or any Restricted Affiliate shall create or assume any Lien upon any of its
property or assets, whether now owned or hereafter acquired, other than Liens
permitted by the provisions of (S) 5.02 (unless prior written consent to the
creation or assumption thereof shall have been obtained pursuant to (S) 5.02),
make or cause to be made effective provision whereby the Notes will be secured
by such Lien equally and ratably with any and all other Indebtedness thereby
secured so long as any such other Indebtedness shall be so secured.
(S) 4.07. MAINTENANCE OF PROPERTIES. The Company will maintain and
keep, or cause to be maintained and kept, the respective properties of the
Company and its Restricted Affiliates in good repair, working order and
condition (other than ordinary wear and tear), so that the business carried on
in connection therewith may be properly conducted at all times, provided that
this paragraph shall not prevent the Company or any Restricted Affiliate from
discontinuing the operation and the maintenance of any of its properties if such
discontinuance is desirable in the conduct of its business and such
discontinuance could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(S) 4.08. MAINTENANCE OF INSURANCE. The Company will maintain and
will cause each of its Restricted Affiliates to maintain, with financially sound
and reputable insurers, insurance with respect to their respective properties
and businesses against such casualties and contingencies, of such types, on such
terms and in such amounts (including deductibles, co-insurance and self-
insurance, if adequate reserves are maintained with respect thereto) as is
customary in the case of entities of established reputations engaged in the same
or a similar business and similarly situated.
(S) 4.09. COMPLIANCE WITH LAWS; LICENSES AND PERMITS. The Company will
, and will cause each of its Restricted Affiliates to, comply with all laws,
ordinances or governmental rules or regulations to which each of them is subject
(including, without limitation, those relating to protection of the
environment), and to obtain and maintain in effect all licenses, certificates,
permits, franchises and other governmental authorizations necessary to the
ownership of their respective
27
properties or to the conduct of their respective businesses, in each case to the
extent necessary to ensure that noncompliance with such laws, ordinances or
governmental rules or regulations or failures to obtain or maintain in effect
such licenses, certificates, permits, franchises and other governmental
authorizations could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(S) 4.10. ERISA COMPLIANCE. The Company will, and will cause each
ERISA Affiliate to, at all times: (a)with respect to each Plan, make timely
payments of contributions required to meet the minimum funding standard set
forth in ERISA or the Code with respect thereto and, with respect to any
Multiemployer Plan, make timely payment of contributions required to be paid
thereto as provided by Section 515 of ERISA, and (b) comply with all other
provisions of ERISA, except for such failures to make contributions and failures
to comply as could not have a Material Adverse Effect.
(S) 4.11. PAYMENT OF TAXES AND OTHER CLAIMS. The Company will, and
will cause each of its Restricted Affiliates to, file all tax returns required
to be filed in any jurisdiction and to pay and discharge (or cause to be paid
and discharged) all Taxes shown to be due and payable on such returns and all
other Taxes imposed on them or any of their properties, assets, income or
franchises, to the extent such Taxes have become due and payable and before they
have become delinquent and all claims for which sums have become due and payable
that have or might become a Lien on properties or assets of the Company or any
Restricted Affiliate, provided that neither the Company nor any Restricted
Affiliate need pay any such Taxes or claims if (a) the amount, applica bility or
validity thereof is contested by the Company or such Restricted Affiliate on a
timely basis in good faith and in appropriate proceedings, and the Company or
such Restricted Affiliate has established adequate reserves therefor in
accordance with GAAP on its books or (b) the nonpayment of all such Taxes and
claims in the aggregate could not reasonably be expected to have a Material
Adverse Effect.
(S) 4.12. PARTNERSHIP OR CORPORATE EXISTENCE. Subject to (S) 5.06,
the Company will, and will cause each of its Restricted Affiliates to, preserve
and keep in full force and effect its partnership, corporate or other applicable
organizational existence and all its rights and franchises, except in the case
of such rights and franchises where the failure to do so could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(S) 4.13. RELEASE OF ORIGINAL INDENTURE LIEN. On or before June 30,
1998, the Company shall have (i) caused all terminations, releases and other
instruments to be recorded, registered and filed in such manner and in such
governmental offices as may in the opinion of Counsel be required by law in
order to fully release, terminate and discharge all properties and assets of the
Company, wherever located, from the Lien of the Original Indenture (excluding
any Lien of the Trustee encumbering the Defeasance Trust (as defined in the
Defeasance Trust Agreement) and all funds and securities therein for the benefit
of the holders of the Defeased Notes), and (ii) filed with the Trustee and
delivered to each Significant Holder an Officer's Certificate to such effect,
28
setting forth in detail all recording and other pertinent information with
respect to such release, termination and discharge.
ARTICLE FIVE
NEGATIVE COVENANTS
(S) 5.01. TOTAL INDEBTEDNESS TO EBITDA RATIO. The Company may incur
and permit to remain outstanding Indebtedness at any time and from time to time,
but will not permit, at any time, the ratio of (a) Total Indebtedness to (b)
EBITDA for the most recently ended four consecutive fiscal quarters to be
greater than 5.00 to 1.00.
(S) 5.02. LIMITATION ON LIENS. The Company will not and will not
permit any Restricted Affiliate to create, assume or suffer to exist any Lien
upon any of its properties or assets, whether now owned or hereafter acquired
(whether or not provision is made for the equal and ratable securing of the
Notes in accordance with the provisions of (S) 4.06), except the following:
(a) Prior Liens;
(b) statutory Liens incidental to the conduct of business or the
ownership of properties of the Company and its Restricted Affiliates
(including Liens in connection with worker's compensation, unemployment
insurance and other like laws (other than ERISA Liens), warehousemen's and
mechanics' and materialmen's liens and statutory landlord's liens) which in
each case are incurred in the ordinary course of business and not in
connection with the borrowing of money, the obtaining of advances or credit
or the payment of the deferred purchase price of property and which do not
in any event materially impair the value or use of the property encumbered
thereby in the operation of the businesses of the Company and its
Restricted Affiliates; provided in each case, that the obligation secured
is not overdue or, if overdue, (i) is being contested by the Company or a
Restricted Affiliate on a timely basis in good faith and in appropriate
proceedings, and the Company or a Restricted Affiliate has established
adequate reserves therefor in accordance with GAAP on the books of the
Company or such Restricted Affiliate or (ii) such Liens in the aggregate do
not have a Material Adverse Effect;
(c) the right reserved to, or vested in, any municipality or public
authority or in any other Person by the terms of any right, power,
franchise, privilege, grant, license, permit, easement or lease or by any
provision of law, to terminate such right, power, franchise, privilege,
grant, license, permit, easement or lease or to purchase or recapture, or
to designate a purchaser of, any of the properties or assets of the Company
and its Restricted Affiliates;
(d) the lien of taxes and assessments which are not at the time
delinquent;
29
(e) the lien of taxes and assessments which are delinquent but the
validity of which is being contested at the time by the Company or any of
its Restricted Affiliates in good faith, provided that the Company or such
Restricted Affiliate shall have established such reserves in such amounts
as may be required under GAAP;
(f) any lien or privilege vested in any grantor, lessor or licensor or
permittor for rent or other charges due or for any other obligations or
acts to be performed, the payment of which rent or other charges or
performance of which other obligations or acts is required under leases,
easements, rights-of-way, leases, licenses, franchises, privileges, grants
or permits, so long as payment of such rent or the performance of such
other obligations or acts is not delinquent or the requirement for such
payment or performance is being contested in good faith by appropriate
proceedings,
(g) defects and irregularities in the titles to any property which do
not have a Material Adverse Effect;
(h) easements, exceptions or reservations in any property of the
Company or any of its Restricted Affiliates granted or reserved for the
purpose of pipelines, roads, the removal of oil, gas, coal or other
minerals, and other like purposes or for the joint or common use of real
property, facilities and equipment, which do not have a Material Adverse
Effect;
(i) rights reserved to or vested in any grantor, lessor, licensor,
municipality or public authority to control or regulate any property of the
Company or any of its Restricted Affiliates or to use any such property,
provided, that the Company or such Restricted Affiliate shall not be in
default in respect of any material obligation (except that the Company or
such Restricted Affiliate may be contesting any such obligation in good
faith) to such grantor, lessor, licensor, municipality or public authority;
and provided, further, that such control, regulation or use will not have a
Material Adverse Effect;
(j) any obligations or duties to any municipality or public authority
with respect to any lease, easement, right-of-way, license, franchise,
privilege, permit or grant;
(k) the Liens of any judgments in an aggregate amount not in excess of
$500,000, or the Lien of any judgment the execution of which has been
stayed, or which has been appealed and secured, if necessary, by the filing
of an appeal bond;
(1) Liens or burdens imposed by any law or governmental regulation,
including, without limitation, those imposed by environmental and zoning
laws, ordinances, and regulations; provided, in each case, the Company or
any of its Restricted Affiliates is not in default in any material
obligation (except that the Company or such Restricted Affiliate may be
contesting any such obligation in good faith) to such Person in respect of
such property; provided, further, that the existence of such Liens and
burdens do not have a Material Adverse Effect;
30
(m) any pledge or deposit to secure payment of workers' compensation
or insurance premiums, or in connection with tenders, bids, contracts or
leases; or any deposits to secure public or statutory obligations; any
pledge or deposit in connection with contracts with or made at the request
of the United States of America or any state or agency or political
subdivision thereof or for any purposes similar to any of those referred to
in this paragraph (m); provided, in each case, the Company or such
Restricted Affiliate is not in default in any material obligation (except
that the Company or such Restricted Affiliate may be contesting any such
obligation in good faith) in respect thereof;
(n) any mortgage, pledge, lien, charge, security interest or similar
encumbrance necessary to secure a stay of any legal or equitable process in
a proceeding to enforce a liability or obligation contested in good faith
by the Company or any of its Restricted Affiliates or required in
connection with the institution by the Company or any of its Restricted
Affiliates of any legal or equitable proceeding to enforce a right or to
obtain a remedy claimed in good faith by the Company or any of its
Restricted Affiliates or in connection with any order or decree in any such
proceeding or required in connection with the contest of any tax or other
governmental charge or the making of a deposit with or the giving of any
form of security to any governmental agency or any body created or approved
by law or governmental regulation in order to entitle the Company or any of
its Restricted Affiliates to maintain self-insurance; provided that the
existence of such security interest does not have a Material Adverse
Effect, and provided, in each case, the Company or such Restricted
Affiliate is not in default in any material obligation (except that the
Company or such Restricted Affiliate may be contesting any such obligation
in good faith) in respect thereof;
(o) Liens securing Indebtedness of the Company or any of its
Restricted Affiliates incurred or assumed in connection with the
construction or acquisition of Capital Improvements, provided that such
Indebtedness would be permitted under (S) 5.03 hereof, and provided,
further, that any such Lien shall not extend to any property other than
property the construction or acquisition of which is financed by such
Indebtedness;
(p) Liens securing all or any part of the purchase price, or securing
Indebtedness of the Company or any of its Restricted Affiliates incurred or
assumed to pay all or any part of the purchase price of property acquired
by the Company or its Restricted Subsidiaries, or Liens existing on such
property immediately prior to its acquisition, including, without
limitation, the Liens described in paragraph (o) of this (S) 5.02,
provided, that (i) that any such Lien shall extend solely to the property
so acquired, (ii) the principal amount of Indebtedness secured by any such
Lien shall not exceed 100% of the fair market value of such property (as
determined in good faith by the Board of Directors) at the time of
acquisition, (iii) any such Lien not existing on such property immediately
prior to its acquisition shall be created at the time of acquisition of
such property or within 180 days thereafter and (iv) the aggregate amount
of all outstanding Indebtedness secured by such Liens shall not at any time
exceed 30% of Consolidated Tangible Assets;
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(q) Liens arising in connection with Sale-Leaseback Transactions
permitted under (S) 5.07;
(r) any Lien of the Trustee encumbering the Defeasance Trust (as
defined in the Defeasance Trust Agreement) and all funds and securities
therein for the benefit of the holders of the Defeased Notes; and
(s) other Liens on the property of the Company or any of its
Restricted Affiliates, provided that the Indebtedness secured thereby would
be permitted under (S) 5.03.
(S) 5.03. LIMITATION ON PRIORITY DEBT. The Company will not at any
time permit Priority Debt to exceed 10% of Consolidated Tangible Assets as of
the last day of the immediately preceding fiscal quarter.
(S) 5.04. LIMITATION ON SALE OF ASSETS. The Company will not, and will
not permit any of its Restricted Affiliates to, directly or indirectly, sell,
transfer or otherwise dispose of any assets of the Company or any of the
Restricted Affiliates (including, without limitation, stock or other securities
issued by, or other equity interests in, a subsidiary), provided that the
Company and any of its Restricted Affiliates may sell, transfer or otherwise
dispose of assets that are not material to the ability of the Company and its
Restricted Affiliates to generate EBITDA.
(S) 5.05. MAINTENANCE OF AFFILIATE STATUS. Laurel and BP Michigan
shall not at any time cease to be Affiliates of the Company; provided, that (i)
either may merge or consolidate with or into other Persons as and to the extent
permitted under (S) 5.06 and (ii) BP Michigan may be dissolved by its partners.
(S) 5.06. LIMITATION ON CONSOLIDATION, MERGER OR ASSET TRANSFER. The
Company will not, and will not permit any of its Restricted Affiliates to, merge
or consolidate with or into any Person or convey, transfer or otherwise dispose
of all or substantially all of its assets to any Person, except that:
(a) any Restricted Affiliate may merge with the Company (provided that
the Company shall be the continuing or surviving Person) or with any one or
more other Restricted Affiliates, or may convey, transfer or otherwise
dispose of all or substantially all of its assets to the Company or to
another Restricted Affiliate; provided, that no Default or Event of Default
shall exist, either prior to or immediately after giving effect to such
merger, consolidation or asset conveyance, transfer or other disposition;
(b) the Company may merge or consolidate with or into any other
partnership or corporation or convey, transfer or otherwise dispose of all
or substantially all of its assets to any other partnership or corporation;
provided, that: (i) the successor formed by such consolidation or the
survivor of such merger or the partnership or corporation that acquires by
conveyance, transfer or other disposition all or substantially all of the
assets of the
32
Company, as the case may be, shall be organized and existing under the laws
of a state of the United States and shall have a majority of its assets and
business located in the United States, (ii) if the Company is not such
successor or survivor, the successor, survivor or acquirer shall have
expressly assumed all obligations of the Company under or with respect to
the Notes, this Indenture and any other agreement entered into in
connection with the transactions contemplated hereby, such Person shall
have caused to be delivered to each Noteholder an opinion of nationally
recognized independent counsel, or other independent counsel reasonably
acceptable to the Required Holder(s), to the effect that all agreements and
instruments effecting such assumption are enforceable in accordance with
their terms and comply with the terms hereof and (iii) no Default or Event
of Default shall exist, either prior to or immediately after giving effect
to such merger, consolidation or asset conveyance, transfer or other
disposition; and
(c) any Restricted Affiliate may merge or consolidate with or into any
other Person or convey, transfer or otherwise dispose of all or
substantially all of its assets to any other Person; provided that (i) the
successor formed by such consolidation or the survivor of such merger or
the Person that acquires all or substantially all of such assets shall be a
Restricted Affiliate of the Company organized and existing under the laws
of a state of the United States and shall have a majority of its assets and
business located in the United States, and (ii) no Default or Event of
Default shall exist, either prior to or immediately after giving effect to
such merger, consolidation or asset conveyance, transfer or other
disposition.
(S) 5.07. LIMITATION ON SALE-LEASEBACK TRANSACTIONS. The Company will
not, and will not permit any Restricted Affiliate to, enter into any Sale-
Leaseback Transaction, unless:
(a) such Sale-Leaseback Transaction occurs within one year after the
later of (i) completion of the acquisition of the applicable property by
the Company or such Restricted Affiliate or (ii) commencement of full
operation with respect to such property; or
(b) such Sale-Leaseback Transaction involves a lease for a term of not
more than three years; or
(c) the net sale proceeds derived from the sale or transfer by the
Company or such Restricted Affiliate of the property involved are used
solely (i) to prepay or retire funded Indebtedness of the Company ranking
pari passu with the Indebtedness evidenced by the Notes or (ii) for Capital
Improvements with respect to the Pipeline Systems made in the ordinary
course of the business of the Company or such Restricted Affiliate; or
(d) the Sale-Leaseback Attributable Debt attributable to such Sale-
Leaseback Transaction would be permitted under (S) 5.03.
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(S) 5.08. AUTHENTICATION AND DELIVERY OF NOTES; COMPLIANCE WITH
INDENTURE. The Company will not execute, or permit to be authenticated and
delivered, any Notes hereunder in any manner other than in accordance with the
provisions of this Indenture and the agreements with respect thereto herein
contained, and will not suffer or permit any Default to occur under this
Indenture, but will, and will cause each of its Restricted Affiliates to,
faithfully observe and perform all the conditions, covenants and requirements of
this Indenture and all Indentures Supplemental hereto, if any.
(S) 5.09. CHANGE OF BUSINESS. The Company will not, and will not
permit any Restricted Affiliate to, change in any material respect the nature of
its respective business or operations from those in which the Company or such
Restricted Affiliate was engaged in as of December 31, 1996 and activities
relating directly thereto, and will not engage, and will not permit any
Restricted Affiliate to engage, directly or indirectly, in any material business
activity, or purchase or otherwise acquire any material property, in any case
not directly related to the conduct of the above-described business or
operations.
ARTICLE SIX
PREPAYMENT OR REDEMPTION OF NOTES
The 1997 Notes shall be subject to prepayment or redemption only with
respect to the required prepayments specified in (S) 6.01 and the optional
prepayments permitted by (S) 6.02.
(S) 6.01. REQUIRED PREPAYMENTS WITH RESPECT TO 1997 NOTES. Until
the Notes shall be paid in full, the Company shall apply:
(a) to the prepayment of the Series A Notes, without premium, the sum
of $25,000,000 on December 16 in each of the years 2020 to 2023, inclusive,
and such principal amounts of the Series A Notes, together with interest
thereon to the prepayment dates, shall become due on such prepayment dates;
(b) to the prepayment of the Series B Notes, without premium, the sum
of $20,000,000 on December 16 in each of the years 2020 to 2023, inclusive,
and such principal amounts of the Series B Notes, together with interest
thereon to the prepayment dates, shall become due on such prepayment dates;
(c) to the prepayment of the Series C Notes, without premium, the sum
of $2,000,000 on December 16 in each of the years 2020 to 2023, inclusive,
and such principal amounts of the Series C Notes, together with interest
thereon to the prepayment dates, shall become due on such prepayment dates;
and
34
(d) to the prepayment of the Series D Notes, without premium, the sum
of $1,000,000 on December 16 in each of the years 2020 to 2023, inclusive,
and such principal amounts of the Series D Notes, together with interest
thereon to the prepayment dates, shall become due on such prepayment dates.
The remaining outstanding principal amount of the 1997 Notes of each series,
together with interest accrued thereon, shall become due on the maturity date of
the 1997 Notes of such series.
(S) 6.02. OPTIONAL PREPAYMENTS WITH RESPECT TO 1997 NOTES. The
1997 Notes shall be subject to prepayment, in whole at any time or from time to
time in part (in multiples of $5,000,000), at the option of the Company, at 100%
of the principal amount so prepaid plus interest thereon to the prepayment date
and the Yield-Maintenance Amount, if any, with respect to each Note. Any
partial prepayment of the 1997 Notes pursuant to this (S) 6.02 shall be applied
in satisfaction of required payments of principal in inverse order of their
scheduled due dates.
(S) 6.03. NOTICE OF OPTIONAL PREPAYMENT WITH RESPECT TO 1997 NOTES.
The Company shall file with the Trustee and give the Holder of each of the 1997
Notes irrevocable written notice of any prepayment pursuant to (S) 6.02 not less
than 10 Business Days prior to the prepayment date, specifying such prepayment
date and the principal amount of the 1997 Notes, and of the 1997 Notes held by
such Holder, to be prepaid on such date and stating that such prepayment is to
be made pursuant to paragraph (S) 6.02. Notice of prepayment having been given
as aforesaid, the principal amount of the 1997 Notes specified in such notice,
together with interest thereon to the prepayment date and together with the
Yield-Maintenance Amount, if any, with respect thereto, shall become due and
payable on such prepayment date. The Company shall, on or before the day on
which it gives written notice of any prepayment pursuant to (S) 6.02, give
telephonic notice of the principal amount of the 1997 Notes to be prepaid and
the prepayment date to each Holder of 1997 Notes which shall have designated a
recipient of such notices in the Purchaser Schedule attached to the 1997 Note
Agreement or by notice in writing to the Company.
(S) 6.04. PARTIAL PREPAYMENTS PRO RATA. Upon any partial
prepayment of the 1997 Notes pursuant to (S) 6.01 or (S) 6.02, the principal
amount so prepaid shall be allocated to all 1997 Notes at the time Outstanding
(including, for the purpose of this (S) 6.04 only, all 1997 Notes prepaid or
otherwise retired or purchased or otherwise acquired by the Company or any of
its Subsidiaries or Affiliates other than by prepayment pursuant to (S) 6.01 or
(S) 6.02) in proportion to the respective outstanding principal amounts thereof.
(S) 6.05. RETIREMENT OF 1997 NOTES. The Company shall not, and
shall not permit any of its Subsidiaries or Affiliates to, prepay or otherwise
retire in whole or in part prior to their stated final maturity (other than by
prepayment pursuant to (S) 6.01 or (S) 6.02 or upon acceleration of such final
maturity pursuant to (S) 7.01), or purchase or otherwise acquire, directly or
indirectly, 1997 Notes held by any Holder unless the Company or such Subsidiary
or Affiliate shall have offered to prepay or otherwise retire or purchase or
otherwise acquire, as the case may be, the same proportion of the aggregate
principal amount of 1997 Notes held by each other Holder of 1997 Notes at the
time
35
Outstanding upon the same terms and conditions. Any Notes so prepaid or
otherwise retired or purchased or otherwise acquired by the Company or any of
its Subsidiaries or Affiliates shall not be deemed to be Outstanding for any
purpose under this Agreement, except as provided in (S) 6.04.
(S) 6.06. PREPAYMENT OR REDEMPTION OF ADDITIONAL NOTES. Additional
Notes of any series shall be subject to prepayment or redemption only as and to
the extent permitted under the terms of the Supplemental Indenture pursuant to
which such Additional Notes were authorized, issued and delivered.
ARTICLE SEVEN
EVENTS OF DEFAULT
(S) 7.01. ACCELERATION. If any of the following events shall occur and
be continuing for any reason whatsoever (and whether such occurrence shall be
voluntary or involuntary or come about or be effected by operation of law or
otherwise):
(a) the Company defaults in the payment of any principal of or Yield-
Maintenance Amount payable with respect to any Note when the same shall
become due, either by the terms thereof or otherwise as herein provided; or
(b) the Company defaults in the payment of any interest on any Note
for more than five days after the date due; or
(c) the Company or any Restricted Affiliate defaults (whether as
primary obligor or as guarantor or other surety) in any payment of
principal of or interest on any other obligation for money borrowed (or any
Capitalized Lease Obligation, any obligation under a conditional sale or
other title retention agreement, any obligation issued or assumed as full
or partial payment for property whether or not secured by a purchase money
mortgage or any obligation under notes payable or drafts accepted
representing extensions of credit) beyond any period of grace provided with
respect thereto, or the Company or any Restricted Affiliate fails to
perform or observe any other agreement, term or condition contained in any
agreement under which any such obligation is created (or if any other event
thereunder or under any such agreement shall occur and be continuing) and
the effect of such failure or other event is to cause, or to permit the
holder or holders of such obligation (or a trustee on behalf of such holder
or holders) to cause, such obligation to become due (or to be repurchased
by the Company or any Restricted Affiliate) prior to any stated maturity,
provided that the aggregate amount of all obligations as to which such a
payment default shall occur and be continuing or such a failure or other
event causing or permitting acceleration (or resale to the Company or any
Subsidiary) shall occur and be continuing exceeds $25,000,000; or
36
(d) any representation or warranty made by the Company herein or by
the Company or any of its officers in the 1997 Note Agreement or any other
writing furnished in connection with or pursuant to this Indenture shall be
false in any material respect on the date as of which made; or
(e) the Company fails to perform or observe any term, covenant or
agreement contained in Article Five hereof, or fails to cause any
Restricted Affiliate, or any Restricted Affiliate fails, to observe or
comply with any such term, covenant or agreement applicable to such
Restricted Affiliate; or
(f) the Company fails to perform or observe any other agreement,
covenant, term or condition contained herein and such failure shall not be
remedied within 30 days after any Responsible Officer obtains actual
knowledge thereof, or fails to cause any Restricted Affiliate, or any
Restricted Affiliate fails, to observe or comply with any such other
agreement, covenant, term or condition applicable to such Restricted
Affiliate within 30 days after any Responsible Officer obtains actual
knowledge thereof; or
(g) the Company or any Restricted Affiliate makes an assignment for
the benefit of creditors or is generally not paying its debts as such debts
become due; or
(h) any decree or order for relief in respect of the Company or any
Restricted Affiliate is entered under any bankruptcy, reorganization,
compromise, arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law, whether now or hereafter in effect (the
"BANKRUPTCY LAW"), of any jurisdiction; or
(i) the Company or any Restricted Affiliate petitions or applies to
any tribunal for, or consents to, the appointment of, or taking possession
by, a trustee, receiver, custodian, liquidator or similar official of the
Company or any Restricted Affiliate, or of any substantial part of the
assets of the Company or any Restricted Affiliate, or commences a voluntary
case under the Bankruptcy Law of the United States or any proceedings
relating to the Company or any Restricted Affiliate under the Bankruptcy
Law of any other jurisdiction; or
(j) any such petition or application is filed, or any such proceedings
are commenced, against the Company or any Restricted Affiliate and the
Company or such Restricted Affiliate by any act indicates its approval
thereof, consent thereto or acquiescence therein, or an order, judgment or
decree is entered appointing any such trustee, receiver, custodian,
liquidator or similar official, or approving the petition in any such
proceedings, and such order, judgment or decree remains unstayed and in
effect for more than 30 days; or
37
(k) any order, judgment or decree is entered in any proceedings
against the Company or any Restricted Affiliate decreeing the dissolution
of the Company or such Restricted Affiliate and such order, judgment or
decree remains unstayed and in effect for more than 60 days; or
(l) any order, judgment or decree is entered in any proceedings
against the Company or any Restricted Affiliate decreeing a split-up of the
Company or such Restricted Affiliate which requires the divestiture of
assets representing a substantial part, or the divestiture of the stock or
other equity interests of a Restricted Affiliate whose assets represent a
substantial part, of the consolidated or combined assets of the Company and
its Restricted Affiliates (determined in accordance with GAAP) or which
requires the divestiture of assets, or stock or other equity interests of a
Restricted Affiliate, which are material to the ability of the Company and
its Restricted Affiliates to generate EBITDA, and such order, judgment or
decree remains unstayed and in effect for more than 60 days; or
(m) any judgment or order, or series of judgments or orders, in an
amount in excess of $25,000,000 is rendered against the Company or any
Restricted Affiliate and either (i) enforcement proceedings have been
commenced by any creditor upon such judgment or order or (ii) within 60
days after entry thereof, such judgment is not discharged or execution
thereof stayed pending appeal, or within 60 days after the expiration of
any such stay, such judgment is not discharged; or
(n) (i) any Plan shall fail to satisfy the minimum funding standards
of ERISA or the Code for any plan year or part thereof or a waiver of such
standards or extension of any amortization period is sought or granted
under section 412 of the Code, (ii) a notice of intent to terminate any
Plan shall have been or is reasonably expected to be filed with the PBGC or
the PBGC shall have instituted proceedings under ERISA section 4042 to
terminate or appoint a trustee to administer any Plan or the PBGC shall
have notified the Company or any ERISA Affiliate that a Plan may become a
subject of any such proceedings, (iii) the aggregate "amount of unfunded
benefit liabilities" (within the meaning of section 4001(a)(18) of ERISA)
under all Plans, determined in accordance with Title IV of ERISA, shall
exceed $250,000, (iv) the Company or any ERISA Affiliate shall have
incurred or is reasonably expected to incur any liability pursuant to Title
I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans, (v) the Company or any ERISA Affiliate
withdraws from any Multiemployer Plan, or (vi) the Company or any ERISA
Affiliate establishes or amends any employee welfare benefit plan that
provides post-employment welfare benefits in a manner that would increase
the liability of the Company or any other ERISA Affiliate thereunder; and
any such event or events described in clauses (i) through (vi) above,
either individually or together with any other such event or events, could
reasonably be expected to have a Material Adverse Effect (as used in this
clause (n), the terms "EMPLOYEE BENEFIT PLAN" and "EMPLOYEE WELFARE BENEFIT
PLAN" shall have the respective meanings assigned to such terms in section
3 of ERISA); or
38
(o) the General Partner ceases to be the sole general partner of the
Company;
then (i) if such event is an Event of Default specified in paragraph (a) or (b)
of this (S) 7.01, the Holder of any Note (other than the Company or any of its
Subsidiaries or Affiliates) may at its option, by notice in writing to the
Company and the Trustee, cause the Trustee to declare such Note to be, and such
Note shall thereupon be and become, immediately due and payable at par together
with interest accrued thereon, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Company, (ii) if such
event is an Event of Default specified in paragraph (h), (i) or (j) of this (S)
7.01 with respect to the Company, all of the Notes at the time Outstanding shall
automatically become immediately due and payable together with interest accrued
thereon and together with the Yield-Maintenance Amount, if any, with respect to
each Note, without presentment, demand, protest or notice of any kind, all of
which are hereby waived by the Company, and (iii) if such event is not an Event
of Default specified in paragraph (h), (i) or (j) of this (S) 7.01 with respect
to the Company, the Holder(s) of not less than 51% in aggregate principal amount
of all of the Notes then Outstanding may at its or their option, by notice in
writing to the Company and the Trustee, cause the Trustee to declare all of the
Notes to be, and all of the Notes shall thereupon be and become, immediately due
and payable together with interest accrued thereon and together with the Yield-
Maintenance Amount, if any, with respect to each Note, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Company.
The Company acknowledges, and the parties hereto agree, that each
Holder of a Note has the right to maintain its investment in the Notes free from
repayment by the Company (except, with respect to the 1997 Notes, as
specifically provided for in (S) 6.01 and (S) 6.02 and, with respect to any
Additional Notes, as specifically provided for in the Supplemental Indenture
pursuant to which such Additional Notes are authorized, issued and delivered)
and that the provision for payment of the Yield-Maintenance Amount by the
Company in the event that the Notes are prepaid or are accelerated as a result
of an Event of Default, is intended to provide compensation for the deprivation
of such right under such circumstances.
(S) 7.02. RESCISSION OF ACCELERATION. At any time after any or all of
the Notes have been declared immediately due and payable pursuant to (S) 7.01,
the Holder(s) of not less than 51% in aggregate principal amount of all of the
Notes then Outstanding may, by notice in writing to the Company and the Trustee,
cause the Trustee to rescind and annul such declaration and its consequences if
(a) the Company shall have paid all overdue interest on the Notes, the principal
of and Yield-Maintenance Amount, if any, payable with respect to any Notes which
have become due otherwise than by reason of such declaration, and interest on
such overdue interest and overdue principal and Yield-Maintenance Amount at the
rate specified in the Notes, (b) the Company shall not have paid any amounts
which have become due solely by reason of such declaration, (c) all Events of
Default and Defaults, other than non-payment of amounts which have become due
solely by reason of such declaration, shall have been cured or waived pursuant
to (S) 12.06, and (iv) no judgment or decree shall have been entered for the
payment of any amounts due pursuant to the Notes or this Indenture. No such
rescission or annulment shall extend to or affect any subsequent Event of
Default or Default or impair any right arising therefrom.
39
(S) 7.03. NOTICE OF ACCELERATION OR RESCISSION. Whenever any
Note shall be declared immediately due and payable pursuant to (S) 7.01 or any
such declaration shall be rescinded and annulled pursuant to (S) 7.02, the
Company shall forthwith file with the Trustee and give written notice thereof to
the Holder of each Note at the time Outstanding.
(S) 7.04. OTHER REMEDIES. If any Event of Default or Default
shall occur and be continuing, then, and in every such case, the Trustee may in
its discretion, and shall, at the request in writing of any Holder of a Note,
proceed to protect and enforce its rights and the rights of such Noteholder
under this Indenture and such Note by exercising such remedies as are available
to such holder in respect thereof under applicable law, either by suit in equity
or by action at law, or both, whether for specific performance of any covenant
or other agreement contained in this Indenture or in aid of the exercise of any
power granted in this Indenture. No remedy conferred in this Indenture upon the
Trustee or any Holder of a Note is intended to be exclusive of any other remedy,
and each and every such remedy shall be cumulative and shall be in addition to
every other remedy conferred herein or now or hereafter existing at law or in
equity or by statute or otherwise.
(S) 7.05. CONTROL OF PROCEEDINGS. Subject to the provisions of
(S) 10.01, the Holder(s) of not less than 51% in aggregate principal amount of
all of the Notes then Outstanding shall have the right, by an instrument in
writing executed and delivered to the Trustee, to direct the time, method and
place of conducting any proceeding for any remedy open to the Trustee and of
exercising any power or trust conferred upon the Trustee under this Indenture;
provided, however, that, subject to the provisions of (S) 10.02, the Trustee
shall have the right to decline to follow any such directions if the Trustee
shall be advised by Counsel that the action or proceeding so directed may not
lawfully be taken, or if the Trustee in good faith shall determine that the
action or proceeding so directed would be unjustifiable or prejudicial to non-
assenting Noteholders.
(S) 7.06. CONDITIONS TO SUIT BY INDIVIDUAL NOTEHOLDERS. No Holder of
any Note shall have the right to institute any suit, action or proceeding in
equity or at law for the enforcement of any remedy under or upon this Indenture,
unless (i) such Holder previously shall have given to the Trustee written notice
of some existing Default and of the continuance thereof, as hereinbefore
provided, (ii) the Holders of at least 25% of the aggregate principal amount of
the Notes at the time Outstanding shall have made written request upon the
Trustee and shall have afforded to the Trustee a reasonable opportunity either
to proceed to exercise the powers hereinbefore granted, or to institute such
action, suit or proceeding in their own names, (iii) such Holder or Holders
shall have offered to the Trustee security and indemnity satisfactory to the
Trustee against the costs, expenses and liabilities to be incurred therein or
thereby, and (iv) the Trustee shall have refused or neglected to comply with
such request within a reasonable time; and, subject to the provisions of (S)
10.02, such notification, request and offer to indemnity are hereby declared, in
every such case, at the option of the Trustee, to be conditions precedent to the
execution of the powers and trusts of this Indenture by any Noteholder or for
any other remedy hereunder taken by any Noteholder; it being understood and
intended that no one or more Holders of Notes shall have any right in any
manner whatever hereunder or under the Notes by his or their action to enforce
any right hereunder, except in the
40
manner herein provided, and that all proceedings hereunder, at law or in equity,
shall be instituted, had and maintained in the manner herein provided and for
the ratable benefit of all Holders of such Notes. Nothing herein contained
shall, however, affect or impair the right of any Noteholder, which is absolute
and unconditional, to enforce the payment of the principal of, and interest on,
such Notes at and after the maturity of such principal or interest, or the
obligation of the Company, which is also absolute and unconditional, to pay the
principal of, and interest on, each of the Notes to the respective Holders
thereof, in either case at the time and place expressed in the Notes.
Anything to the contrary notwithstanding contained in this (S) 7.06,
the parties to this Indenture and the Noteholders agree that the court may in
its discretion require, 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 them, or either of them, as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
provided, however, that the provisions of this paragraph shall not apply to any
suit instituted, directly or through an agent or agents, by the Trustee, to any
suit instituted by any Noteholder or group of Noteholders holding in the
aggregate at least 25% of the aggregate principal amount of the Notes
Outstanding, or to any suit instituted by any Noteholder for the enforcement of
the payment of the principal of or interest or Yield-Maintenance Amount, if any,
on its Notes at and after maturity of such principal or interest as expressed in
such Notes.
(S) 7.07. ACTION BY TRUSTEE WITHOUT POSSESSION OF NOTES. All
rights of action under this Indenture or under any of the Notes enforceable by
the Trustee may be enforced by the Trustee without the possession of any such
Notes, or the production thereof on the trial or other proceedings relative
thereto, and any such suit or proceedings instituted by the Trustee shall be
brought in its own name as Trustee for the ratable benefit of the Holders of the
Notes, subject to the provisions of this Indenture.
(S) 7.08. FILING OF DOCUMENTS BY TRUSTEE; ATTORNEY-IN-FACT. The
Trustee shall be entitled and empowered in its own name or as trustee of an
express trust, or as attorney-in-fact for the Holders of the Notes, or in any
one or more of such capacities, to file such proof of debt, amendment of proof
of debt, claim, petition or other document as may be necessary or advisable in
order to have the claims of the Trustee and of the Holders of the Notes allowed
in any equity receivership, insolvency, bankruptcy, liquidation, readjustment,
reorganization or other similar proceedings relative to the Company or any other
obligor upon the Notes or its creditors or affecting its property. The Trustee
is hereby irrevocably appointed (and the successive respective Holders of the
Notes by taking and holding the same shall be conclusively deemed to have so
appointed the Trustee) the true and lawful attorney-in-fact of the respective
Holders of the Notes, with authority to make and file in the respective names of
the Holders of the Notes, or on behalf of the Holders of the Notes as a class,
subject to deduction from any such claims of the amounts of any claims filed by
any of the Holders of the Notes, any proof of debt, amendment of proof of debt,
claims, petition or other documents in any such proceedings and to receive
payment of any sums becoming
41
distributable on account thereof, and to execute any other papers and documents
and to do and perform any and all acts and things for and on behalf of such
Holders of the Notes, as may be necessary or advisable in the opinion of the
Trustee in order to have the respective claims of the Trustee and of the Holders
of the Notes against the Company or its property allowed in any such proceeding,
and to receive payment of or on account of such claims; provided, however, that
nothing contained in this Indenture shall be deemed to give to the Trustee any
right to accept or consent to any plan of reorganization or otherwise by action
of any character in any such proceeding to waive or change in any way any right
of any Noteholder.
(S) 7.09. NO WAIVER. No delay or omission of the Trustee or of the
Noteholders to exercise any right or power accruing upon any Event of Default
shall impair any such right or power or shall be construed to be a waiver of any
such Event of Default or acquiescence therein; and every right and power given
by this Article Seven to the Trustee may be exercised from time to time and as
often as may be deemed expedient by the Trustee.
(S) 7.10. NOTES DEEMED NOT OUTSTANDING. No Notes owned or held by, for
the account of or for the benefit of, the Company, the General Partner or any
Affiliate of either of them shall be deemed entitled to share in any payment or
distribution provided for in this Article Seven.
(S) 7.11. EXERCISE OF RIGHTS. Nothing in this Indenture contained
shall be construed as requiring the Trustee to pursue any particular remedy for
the purpose of procuring the satisfaction of the indebtedness issued hereunder,
but the Trustee may exercise all or any of the rights herein provided or which
may be given by statute, law or equity or otherwise, in its discretion.
(S) 7.12. REMEDIES SUBJECT TO APPLICABLE LAWS. All rights, remedies
and powers provided by this Article Seven may be exercised only to the extent
that the exercise thereof does not violate any applicable provision of law in
the premises, and all the provisions of this Article Seven are intended to be
subject to all applicable mandatory provisions of law that may be controlling in
the premises and to be limited to the extent necessary so that they will not
render this Indenture invalid, unenforceable or not entitled to be recorded or
filed under the provisions of any applicable law.
ARTICLE EIGHT
EVIDENCE OF RIGHTS OF NOTEHOLDERS
Any demand, request, consent or other instrument which this Indenture
may require or permit to be signed and executed by the Noteholders may be signed
in any number of concurrent instruments of similar tenor and may be signed or
executed by such Noteholders in person or by attorney appointed in writing.
Proof of the execution of any such demand, request, consent or other instrument,
or of a writing appointing any such attorney, or of the holding by any Person of
the Notes, shall, subject to the provisions of (S) 10.02, be sufficient for any
purpose of this Indenture if
42
the fact and date of the execution by any Person of such demand, request,
consent or other instrument or writing and, in the case of an agent, fiduciary
or representative, the authority of such person may be proved by the certificate
of any notary public, or other officer authorized to take acknowledgments of
deeds to be recorded in any state, that the person signing the same acknowledged
to him the execution thereof, or by an affidavit of a witness of such execution.
The Trustee may nevertheless in its discretion require other or
further proof in cases where it deems other or further proof appropriate or
desirable. The ownership of Notes shall be proved by the registry books.
The Trustee shall not be bound to recognize any Person as a Noteholder
unless and until its title to the Note held by it is proved in the manner in
this Article Eight provided.
Subject to the provisions of Article Twelve, any demand, request or
consent of the Holder of any Note shall bind all future holders of the same Note
or any Note or Notes issued in exchange therefor in respect of anything done or
suffered by the Company or the Trustee in pursuance thereof.
ARTICLE NINE
IMMUNITY OF PARTNERS, STOCKHOLDERS AND
OFFICERS AND DIRECTORS OF THE GENERAL PARTNER
No recourse shall be had for the payment of the principal of, or the
interest or Yield-Maintenance Amount (if any) on, any Note, or for any claim
based thereon or on this Indenture or any Supplemental Indenture hereto, against
the General Partner or any limited partner of the Company or against any
stockholder or director or officer, past, present and future, of the General
Partner, or the incorporators, stockholders or officers and directors of any
predecessor or successor corporation to the General Partner, as such, either
directly or through the General Partner or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such
liability, whether at common law, in equity, by any constitution, statute or
otherwise, of the foregoing Persons being released as a condition of, and
consideration for, the execution of this Indenture and of the issuance of the
Notes.
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ARTICLE TEN
THE TRUSTEE
(S) 10.01. RIGHTS OF TRUSTEE. The Trustee accepts the trusts
created by this Indenture upon the terms and conditions hereof, including the
following, to all of which the parties hereto and the Holders from time to time
of the Notes agree:
(a) The Trustee shall be entitled to reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust), and such compensation, as well as the reasonable
compensation of its Counsel, and all other reasonable expenses incurred by
the Trustee hereunder, and all taxes which may have been assessed against
the Trustee as such or against any funds on deposit with the Trustee
hereunder which the Trustee may be required or permitted by law to deduct
from such deposit and to pay, the Company agrees to pay promptly on demand
from time to time as such services shall be rendered and as such expenses
shall be incurred. In default of such payment by the Company, the Trustee
shall have a Lien therefor on any moneys held by the Trustee hereunder
prior to any rights in such moneys of the Holders of the Notes. The
Company also agrees to indemnify the Trustee for and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Trustee, arising out of or in connection with the
acceptance or administration of this trust, as well as the costs and
expenses of defending against any claim of liability arising under or in
connection herewith.
(b) The Trustee may execute any of the trusts or powers hereof and
perform any duty hereunder either directly or by or through its agents or
attorneys.
(c) The Trustee shall not be responsible in any manner whatsoever for
the correctness of the recitals herein or in the Notes (except the
Trustee's certificate of authentication thereon) all of which are made by
the Company solely; and the Trustee shall not be responsible or accountable
in any manner whatsoever for or with respect to the validity or execution
or sufficiency of this Indenture, or of any Indenture Supplemental hereto,
or of the Notes, and the Trustee makes no representation with respect
thereto. The Trustee shall not be accountable for the use or application
by the Company of any Notes authenticated and delivered hereunder or of the
proceeds of such Notes, or for the use or application of any moneys paid
over by the Trustee in accordance with any provision of this Indenture.
(d) The Trustee shall not be under any obligation to exercise any of
the trusts or powers hereof at the request, order or direction of any of
the Noteholders, pursuant to the provisions of this Indenture, unless such
Noteholders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities to be
incurred therein or thereby; nothing herein contained shall, however,
relieve the Trustee
44
of the obligation, upon the occurrence of an Event of Default (which has
not been cured), to exercise such of the rights and powers vested in it by
this Indenture, and to use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(e) The Trustee may consult with Counsel, and, to the extent permitted
by (S) 10.02, the opinion of such Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered by
them hereunder in good faith and in accordance with the opinion of such
Counsel.
(f) The Trustee, to the extent permitted by (S) 10.02, may rely upon
the certificate of the Secretary or one of the Assistant Secretaries of the
General Partner, under its corporate seal, as to the adoption of any
resolution by the Board of Directors or stockholders of the General
Partner.
(g) Any action taken by the Trustee pursuant to any provision hereof
at the request or with the consent of any Person who at the time is the
Holder of any Note shall be conclusive and binding in respect of such Note
upon all future Holders thereof, whether or not such Note shall have noted
thereon the fact that such request or consent had been made or given.
(h) The Trustee, to the extent permitted by (S) 10.02, may
conclusively rely and shall be protected in acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, Note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties
and is under no duty to verify the contents thereof by independent
investigation.
(i) All moneys received by the Trustee under or pursuant to any
provision of this Indenture (including any moneys received by the Trustee
as paying agent) shall be held by the Trustee in trust for the purposes for
which they were paid or are held, and, except as otherwise provided herein,
may be deposited by the Trustee, under such general conditions as may be
prescribed by law, in the Trustee's general banking department and the
Trustee shall not be liable for any interest thereon, except that so long
as the Company is not in Default hereunder, the Trustee will allow and
credit to the Company interest, if any, upon such moneys at such rate as
may then be customarily allowed by it for deposits of similar character.
(j) Subject to the provisions of (S) 10.02, the Trustee may, whenever
it shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering any action hereunder, deem such
matter to be conclusively proved and established by an Officers'
Certificate delivered to it (unless other evidence in respect thereof is
herein specifically prescribed), and such certificate shall be full warrant
to the Trustee for any action taken or suffered by it under the provisions
of this Indenture in reliance upon such certificate.
45
(S) 10.02. EXTENT OF TRUSTEE LIABILITY. None of the provisions of
this Indenture shall be construed as relieving the Trustee from liability for
its own grossly negligent action, grossly negligent failure to act, or wilful
misconduct, except that anything in this Indenture contained to the contrary
notwithstanding:
(a) unless and until an Event of Default specified in (S) 7.01 hereof
shall have occurred and be continuing,
(i) the Trustee shall not be liable except for the performance of
such duties as are specifically set out in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee, whose duties and obligations shall be determined
solely by the express provisions of this Indenture; and
(ii) the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, in
the absence of bad faith on the part of the Trustee, upon certificates
or opinions furnished to it pursuant to the express provisions of and
conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions, which, by the provisions of this
Indenture, are specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be personally liable for any error of
judgment made in good faith by a Responsible Officer or Officers of the
Trustee, unless it shall be proved that the Trustee was grossly negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be personally liable to any Holder of Notes
or to any other Person with respect to any action taken or omitted to be
taken by it in good faith, in accordance with the direction of the Required
Holder(s) of the Notes of all series relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred upon the Trustee by this Indenture.
If an Event of Default specified in (S) 7.01 hereof shall have
happened, then, so long as the same shall be continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and shall
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
Notwithstanding any provisions of this Indenture authorizing the
Trustee conclusively to rely upon any resolutions, certificates, statements,
opinions, reports, orders or other instruments, the Trustee may, but to the
extent permitted by this (S) 10.02, need not, require any further evidence or
make any further investigation as to the facts or matters stated therein which
it may, in good faith, deem reasonable in the circumstances, and the Trustee
shall, if requested in writing so to do by the
46
Required Holder(s) of the Notes of all series, require such further evidence or
make such further investigation, provided, however, that, if the payment within
a reasonable time to the Trustee of the cost, expenses and liabilities likely to
be incurred by it in making such investigation is not reasonably assured to it
under the terms of this Indenture, the Trustee may require reasonable indemnity
against such expense or liability as a condition to so proceeding.
If the Trustee shall determine or shall be requested, as aforesaid, to
make such further investigation, it shall be entitled to examine the books,
records and premises of the Company; and unless satisfied, with or without such
investigation, of the truth and accuracy of the matters stated in such
resolutions, certificates, statements, opinions, reports, orders or other
instruments, the Trustee shall be under no obligation to grant any application
or take or permit any action hereunder. The reasonable expense of every such
examination shall be paid by the Company, or, if paid by the Trustee, shall be
reimbursed by the Company, upon demand.
(S) 10.03. NOTICE OF DEFAULTS. The Trustee shall provide written
notice by mail to each Registered Owner of Notes of the happening of all
Defaults and Events of Default known to the Trustee, within 10 days after the
occurrence thereof; provided, that, except in the case of a Default resulting
from the failure to make any payment of principal or of interest or Yield-
Maintenance Amount, if any, on the Notes, the Trustee shall be protected in
withholding such notice if and provided, however, that the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Noteholders.
Nothing herein contained shall require the Trustee to give any notice
of any Default or Event of Default which has been cured.
(S) 10.04. CONFLICTING INTEREST OF TRUSTEE. The Trustee and any
successor trustee shall comply at all times with Section 310 of the Trust
Indenture Act; provided, that this (S) 10.04 shall not be effective unless and
until this Indenture is qualified under the Trust Indenture Act.
(S) 10.05. QUALIFICATIONS OF TRUSTEE; RESIGNATION. If the Trustee
shall at any time cease to be a bank or trust company in good standing organized
and doing business under the laws of the United States or of any State and
having its principal office in The City of New York or Pittsburgh or in such
other city as the Company and the Required Holder(s) of all series of Notes
shall select and having a combined capital and surplus of not less than
$350,000,000 which is authorized under the laws of the jurisdiction of
incorporation to exercise corporate trust powers and is subject to supervision
or examination by Federal or State authority, then the Trustee shall resign
within thirty (30) days thereafter, such resignation to become effective upon
the appointment of a successor trustee and such successor's acceptance of such
appointment. If the Trustee publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, the combined capital and surplus of the Trustee shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published.
47
If the Trustee shall fail or refuse to resign within said period, or if, after
the provisions of (S) 10.04 shall have become effective, the Trustee has or
shall acquire any conflicting interest of the character specified in Section 310
of the Trust Indenture Act and shall fail or refuse either to eliminate such
conflicting interest or to resign within the period provided in respect of such
resignation, then in either such event (i) the Trustee shall, within ten (10)
days after the expiration of said period, transmit notice of such failure or
refusal to the Noteholders in the manner and to the extent provided in Section
313(e) of the Trust Indenture Act; and (ii) any Noteholder, who has been the
bona fide Holder of a Note for at least six months, may, subject to the
provisions of (S) 7.11 hereof and upon obtaining consent from Holders of at
least 25% of the aggregate principal amount of the Notes, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor, if such
Trustee fails, after written request therefor by such Noteholder, to comply with
the provisions of said (S) 10.04; provided, however, that no such petition may
be made by reason of any failure to comply with the provisions of (S) 10.04
until the provisions thereof shall have become effective.
(S) 10.06. RESIGNATION AND REMOVAL; SUCCESSOR TRUSTEE. The Trustee or
any successor may resign and be discharged from the trust hereby created by
giving notice thereof to the Company specifying the date when such resignation
shall take effect, and by giving notice thereof by mail to the Registered Owners
of all Notes. Except as otherwise required under the Trust Indenture Act with
respect to a resignation which takes place at any time after this Indenture has
been qualified under the Trust Indenture Act, such resignation shall take effect
on the date specified in such notice unless previously a successor shall have
been appointed as hereinafter provided, in which event such resignation shall
take effect upon the appointment of such successor.
The Trustee or any successor may be removed at any time by an
instrument or instruments in writing delivered to the Trustee and to the
Company, and a successor may be appointed by an instrument or instruments in
writing delivered to such successor and to the Company, in either case signed by
the Required Holder(s) of all series of Notes or by their duly authorized
attorneys-in-fact; but the Company, by an instrument executed by order of the
Board of Directors, shall appoint a successor to fill the vacancy until a
successor shall be appointed by the Noteholders or a court of competent
jurisdiction as herein authorized. Every successor to the Trustee so appointed
by the Noteholders, by a court of competent jurisdiction or by the Company,
shall be a bank or trust company in good standing organized and doing business
under the laws of the United States or of any State and having its principal
office in The City of New York or Pittsburgh or any other city as the Company
and the Required Holder(s) of all series of Notes shall select, and having a
combined capital and surplus of not less than $350,000,000, which is authorized
under the laws of the jurisdiction of incorporation to exercise corporate trust
powers and is subject to supervision or examination by a Federal or State
authority. If such successor publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, the combined capital and surplus of such successor shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published.
48
If in a proper case no appointment of a successor shall be made
pursuant to the foregoing provisions of this Article Ten within six months after
a vacancy shall have occurred, the Holder of any Note or the retiring Trustee
may apply to any court of competent jurisdiction to appoint a successor. Said
court may thereupon, after such notice, if any, as such court may deem proper
and prescribe, appoint a successor.
(S) 10.07. ACCEPTANCE BY SUCCESSOR TRUSTEE. Any successor to the
Trustee appointed under any of the methods herein provided shall execute,
acknowledge and deliver to its predecessor trustee, and to the Company, an
instrument in writing accepting such appointment hereunder and thereupon such
successor, without any further act, deed or conveyance, shall become fully
vested with the rights, powers and trusts of its predecessor in the trust
hereunder with like effect as if originally named as Trustee herein, as the case
may be; but such predecessor shall, nevertheless, at the written request of the
successor, execute and deliver an instrument transferring to the successor all
the rights, powers and trusts of such predecessor hereunder and shall duly
assign, transfer and deliver all property and moneys held by it to its
successor. Should any instrument in writing from the Company be required by any
successor for more fully and effectually vesting in and confirming to it or him
all rights, powers and duties as trustee hereunder, the Company, upon the
request of such successor, shall make, execute and deliver the same. The
Company shall promptly give notice of the appointment of such successor by mail
to the Registered Owners of all Notes.
(S) 10.08. MERGER OR CONSOLIDATION. Any corporation into which the
Trustee or any successor to it in the trust created by this Indenture may be
merged, or with which it or any successor to it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Trustee or
any successor to it shall be a party, shall be the successor of the Trustee
under this Indenture without the execution or filing of any instruments or any
further act on the part of any of the parties hereto.
(S) 10.09. TRUSTEE AS CREDITOR. (a) If the Trustee in its
individual capacity shall be, or shall become, a creditor, directly or
indirectly, secured or unsecured, of the Company (other than in a relationship
of the nature specified in paragraph (f) of this (S) 10.09) within four months
prior to a default, as the term "DEFAULT" is defined in paragraph (e) of this
(S) 10.09 or subsequent to such a default, then, unless and until such default
shall be cured, the Trustee shall set apart and hold in a special account for
the benefit of the Trustee individually, the Holders of Notes and the holders of
any other indenture securities, as the term "OTHER INDENTURE SECURITIES" is
defined in said paragraph (e):
(i) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such four months' period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
clause (ii) of this paragraph (a), or from the exercise of any right of
set-off which the Trustee could have exercised, if any voluntary or
involuntary case had been commenced in respect of the Company under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
49
applicable Federal or State bankruptcy, insolvency or other similar law
upon the date of such default; and
(ii) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof or otherwise, after the beginning of such four months'
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
(b) Nothing contained in this (S) 10.09 shall affect the right of the
Trustee:
(i) to retain for its own account (A) payments made on account of any
such claim by any Person (other than the Company) who is liable thereon,
(B) the proceeds of the bona fide sale of any such claim by the Trustee to
a third Person, and (C) distributions made in cash, securities or other
property in respect of claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted, or applicable State law;
(ii) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such four months' period;
(iii) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such four
months' period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
paragraph (e) of this (S) 10.09, would occur within four months; or
(iv) to receive payment on any claim referred to in clause (ii) or
clause (iii) of this paragraph (b), against the release of any property
held as security for such claim as provided in said clause (ii) or said
clause (iii), as the case may be, to the extent of the fair value of such
property.
For the purposes of clauses (ii), (iii) and (iv) of this paragraph
(b), property substituted after the beginning of such four months' period for
property held as security at the time of such substitution shall, to the extent
of the fair value of the property released, have the same status as the property
released, and, to the extent that any claim referred to in any of such
paragraphs is created in renewal of, or in substitution for, or for the purpose
of repaying or refunding, any pre-existing claim of the Trustee as such
creditor, such claim shall have the same status as such pre-existing claim.
50
(c) If the Trustee shall be required to account, as in this (S) 10.09
provided, the funds and property held in a special account pursuant to the
provisions of this (S) 10.09 and the proceeds thereof shall be apportioned among
the Trustee, the Holders of Notes and the holders of other indenture securities
in such manner that the Trustee, the Holders of Notes and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in receivership or
liquidation proceedings or any voluntary or involuntary case under the federal
bankruptcy laws, as now or hereafter constituted, or applicable state law, the
same percentage of their respective claims, figured before crediting to the
claim of the Trustee anything on account of the receipt by it from the Company
of the funds and property in such special account, and before crediting to the
respective claims of the Trustee, the Holders of Notes and the holders of other
indenture securities, dividends on claims filed against the Company in
receivership or liquidation proceedings or any voluntary or involuntary case
under the federal bankruptcy laws, as now or hereafter constituted, or
applicable state law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph (c) with respect to any claim, the term
"DIVIDENDS" shall include any distribution with respect to such claim in
receivership or liquidation proceedings or any voluntary or involuntary case
under the federal bankruptcy laws, as now or hereafter constituted, or
applicable state law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such receivership or
liquidation proceeding or such voluntary or involuntary case under the federal
bankruptcy laws, as now or hereafter constituted, or applicable state law shall
be pending shall have jurisdiction (i) to apportion among the Trustee, the
Holders of Notes and holders of other indenture securities, in accordance with
the provisions of this paragraph (c), the funds and property held in such
special account and the proceeds thereof, or (ii) in lieu of such an
apportionment thereof, in whole or in part, to give to the provisions of this
paragraph (c) due consideration in determining the fairness of the distributions
to be made to the Trustee, the Holders of Notes and the holders of other
indenture securities with respect to their respective claims, in which event it
shall not be necessary to liquidate or to appraise the value of any securities
or other property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as between the
secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph (c) as a mathematical formula.
(d) In case the Trustee shall have resigned or been removed after the
beginning of such four months' period, the Trustee shall be subject to the
provisions of this (S) 10.09 as though such resignation or removal had not
occurred. If the Trustee shall have resigned or been removed prior to the
beginning of such four months' period, it shall be subject to the provisions of
this (S) 10.09 if and only if the receipt of property or reduction of claim
which would have given rise to the obligation to account, if the Trustee had
continued as such trustee hereunder, occurred after the beginning of such four
months' period and within four months after such resignation or removal.
51
(e) As used in this (S) 10.09, the term "DEFAULT" means any failure to
make payment in full of principal of or interest on the Notes or an other
indenture securities, when and as such principal or interest becomes due and
payable; and the term "OTHER INDENTURE SECURITIES" means securities upon which
the Company is an obligor (as the term "OBLIGOR" is defined in the Trust
Indenture Act of 1939) outstanding under any other indenture which is qualified
under the Trust Indenture Act of 1939 and under which the Trustee is also
trustee and under which a default exists at the time of the apportionment of the
funds and property held in said special account.
(f) None of the foregoing provisions of this (S) 10.09 shall be
applicable in respect of a creditor relationship arising from:
(i) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(ii) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(iii) an indebtedness created as a result of services rendered or
premises rented. or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in this paragraph (f);
(iv) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; or
(v) the acquisition, ownership, acceptance, or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper, as the term "SELF-LIQUIDATING
PAPER" is defined in this paragraph (f).
The term "SECURITY" or "SECURITIES" as used in this paragraph (f)
shall mean any note, stock, treasury stock, bond, debenture, evidence of
indebtedness, certificate of interest or participation in any profit sharing
agreement, collateral-trust certificate, preorganization certificate or
subscription, transferable share, investment contract, voting trust certificate,
certificate of deposit for a security, fractional undivided interest in oil, gas
or other mineral rights, or, in general, any interest or instrument commonly
known as a "SECURITY," or any certificate of interest or participation in,
temporary or interim certificate for, receipt for, guarantee of, or warrant or
right to subscribe to or purchase, any of the foregoing.
52
The term "CASH TRANSACTION" as used in paragraph (iii) of this
paragraph (f) means any transaction in which full payment for goods or
securities sold is made within seven days after the delivery of the goods or
securities in currency or in checks or other orders drawn upon banks or bankers
and payable upon demand.
The term "SELF-LIQUIDATING PAPER" as used in paragraph (v) of this
paragraph (f) means any draft, bill of exchange, acceptance or obligation which
is made, drawn, negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacture, shipment, storage or sale of
goods, wares or merchandise and which is secured by documents evidencing title
to, possession of or lien upon the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided that the security is received by
the Trustee simultaneously with the creation of the creditor relationship with
the Company arising from the making, drawing, negotiating or incurring of the
draft bill of exchange, acceptance or obligation.
In the event that any Person other than the Company shall at any time
become an obligor upon any of the Notes, so long as such Person shall continue
to be such obligor the provisions of this (S) 10.09, in addition to being
applicable to the Trustee and the Company, shall be applicable to the Trustee
and such obligor.
(S) 10.10. REPORTING REQUIREMENTS. The Trustee and any successor
trustee shall comply at all times with Section 313 of the Trust Indenture Act;
provided, that this (S) 10.10 shall not be effective unless and until this
Indenture is qualified under the Trust Indenture Act.
(S) 10.11. PRESERVATION OF NOTEHOLDER INFORMATION. (a) The Trustee
shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of Notes (i) contained
in the most recent list furnished to it as provided in (S) 4.03 and (ii)
otherwise received by it.
The Trustee may (A) destroy any list furnished to it as provided in
(S) 4.03 upon receipt of a new list so furnished, (B) destroy any other
information received by it regarding the names and addresses of the Noteholders
upon delivering to itself as Trustee, not earlier than 45 days after an interest
payment date of the Notes, a list containing the names and addresses of the
Holders of the Notes obtained from such information since the delivery of the
next previous list, if any, and (C) destroy any list delivered to itself as
Trustee which was compiled from information received by it upon the receipt of a
new list so delivered.
(b) Within five Business Days after receipt by the Trustee of a
written application by any three or more Noteholders stating that the applicants
desire to communicate with other Noteholders with respect to their rights under
this Indenture or under the Notes, and accompanied by a copy of the form of
proxy or other communication which such applicants propose to transmit, and by
reasonable proof that each such applicant has owned a Note or Notes for a period
of at least six months preceding such application, the Trustee shall, as its
election. either (i) afford to such
53
applicants access to the information preserved at the time by the Trustee in
accordance with the provisions of paragraph (a) of this (S) 10.11, or (ii)
inform such applicants as to the approximate number of Noteholders whose names
and addresses appear in the information preserved at the time by the Trustee in
accordance with the provisions of paragraph (a) of this (S) 10.11, and as to the
approximate cost of mailing to the Noteholders the form of proxy or other
communication, if any, specified in such application. If the Trustee shall elect
not to afford to such applicants access to such information, the Trustee shall,
upon the written request of each applicant, mail to all Noteholders whose names
and addresses appear in the information preserved at the time by the Trustee in
accordance with the provisions of paragraph (a) of this (S) 10.11 copies of the
form of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and the payment, or provision for the payment, of the reasonable expenses of
such mailing, unless within five days after such tender, the Trustee shall mail
to such applicants, and file with the Securities and Exchange Commission,
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to
the best interests of the Noteholders or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. In such
event the applicant Noteholder shall be entitled to make application to the
Securities and Exchange Commission for an order directing the Trustee to mail
such material as aforesaid. If, after notice to the Trustee and hearing on the
request so made by the applicant Noteholder, the Securities and Exchange
Commission determines that the Trustee should be required to mail such material
as aforesaid, the Trustee agrees to comply with such determination with
reasonable promptness after such determination and the renewal of the aforesaid
tender.
The Trustee shall not be liable or accountable to the Company or to
any Noteholder by reason of the disclosure of any such information as to the
names and addresses of the Noteholders in accordance with the provisions of this
(S) 10.11, regardless of the source from which such information was derived, nor
by reason of the mailing of any material pursuant to request made under this (S)
10.11.
Notwithstanding any provision contained herein to the contrary, the
provisions of this (S) 10.11(b) shall not be effective unless and until this
Indenture is qualified under the Trust Indenture Act of 1939.
(S) 10.12. DEALINGS WITH COMPANY. The Trustee may acquire and hold
Notes and otherwise deal with the Company in the same manner and to the same
extent and with like effect as though it were not the Trustee hereunder;
subject, however, to the provisions of (S) 10.04, (S) 10.09 and (S) 10.10, if
such provisions are then in effect.
(S) 10.13. COMPLIANCE WITH SEC RULES AND REGULATIONS. The Trustee
may in good faith comply with any rule, regulation or order of the Securities
and Exchange Commission made pursuant to the terms and provisions of the Trust
Indenture Act of 1939 and shall be fully protected in so doing notwithstanding
that such rule, regulation or order may thereafter be amended or rescinded or
determined by judicial or other authority to be invalid for any reason, but
nothing
54
herein contained shall require the Trustee to take any action or omit to
take any action in accordance with such rule, regulation or order, except as in
this Indenture otherwise required.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
(S) 11.01. PERMITTED PURPOSES. In addition to any Supplemental
Indenture otherwise authorized by this Indenture, the Company, when authorized
by resolution of the Board of Directors and the Trustee, from time to time and
at any time, subject to the conditions and restrictions in this Indenture
contained, may enter into an Indenture or Indentures Supplemental hereto and
which thereafter shall form a part hereof for any one or more or all of the
following purposes:
(a) to close this Indenture against, or to restrict, in addition to
the limitations and restrictions herein contained, the authentication and
delivery of Additional Notes hereunder by imposing additional conditions
and restrictions to be thereafter observed, whether applicable in respect
of all Notes authenticated and delivered and to be authenticated and
delivered hereunder or in respect of one or more series thereof, or
otherwise;
(b) to add, to the covenants and agreements of the Company in this
Indenture contained, other covenants and agreements thereafter to be
observed and to surrender any right or power herein reserved to or
conferred upon the Company although the freedom of action of the Company
may be materially restricted thereby;
(c) to make such provisions in regard to matters or questions arising
under this Indenture as may be necessary or desirable and not inconsistent
with this Indenture;
(d) to modify any of the provisions of this Indenture or to relieve
the Company from any of the obligations, conditions or restrictions herein
contained, provided that, except as permitted by Article Twelve, no such
modification shall be or become operative or effective which shall in any
manner impair any of the rights of the Noteholders or of the Trustee while
any Notes of any series established prior to the execution of such
Supplemental Indenture shall remain Outstanding, and provided, further,
that such Supplemental Indenture shall be specifically referred to in the
text of all Notes of any series established after the execution of such
Supplemental Indenture; and provided, also, that the Trustee may in its
discretion decline to enter into any such Supplemental Indenture which in
its opinion may not afford adequate protection to the Trustee when the same
shall become operative;
(e) to set forth the terms of any Additional Notes to be issued
hereunder;
55
(f) to modify, amend or supplement this Indenture or any Supplemental
Indenture hereto in such a manner as to permit the qualification thereof
under the Trust Indenture Act of 1939 or any similar Federal statute
hereafter in effect, except that nothing herein contained shall authorize
the inclusion in any Supplemental Indenture hereto of the provision
referred to in Section 316(a)(2) of said Trust Indenture Act of 1939 or any
corresponding provision provided for in any similar Federal statute
hereafter in effect; or
(g) for any other purpose not inconsistent with the terms of this
Indenture, or for the purpose of curing any ambiguity or curing, correcting
or supplementing any defect or inconsistent provision contained in this
Indenture or any Supplemental Indenture;
and the Company hereby covenants that it will fully perform all the requirements
of any such Supplemental Indentures which may be in effect from time to time;
but no restriction or obligation imposed hereby or by any Supplemental Indenture
upon the Company in respect to any of the Notes or series of Notes then
Outstanding under this Indenture may, except as otherwise provided in this
Indenture, be waived or modified by such Supplemental Indentures, or otherwise.
Nothing in this Article Eleven contained shall affect or limit the right or
obligation of the Company to execute and deliver to the Trustee any instrument
of further assurance or other instrument which elsewhere in this Indenture it is
provided shall be delivered to the Trustee.
(S) 11.02. AUTHORIZATION OF TRUSTEE. The Trustee is hereby
authorized to join with the Company in the execution of any such Supplemental
Indenture authorized or permitted by the terms of this Indenture, and to make
the further agreements and stipulations which may be therein contained and
subject to the provisions of (S) 10.02, the Trustee may receive an opinion of
Counsel as conclusive evidence that any Supplemental Indenture executed pursuant
to the provisions of this Article Eleven complies with the requirements of this
Article Eleven.
(S) 11.03. COMPLIANCE WITH TRUST INDENTURE ACT. At any time after
this Indenture shall have been qualified under the Trust Indenture Act of 1939,
no Supplemental Indenture shall be entered into pursuant to any authorization
contained in this Indenture which shall not comply with the provisions of the
Trust Indenture Act of 1939 as then in effect unless no Notes are then
Outstanding under the Indenture and all Notes to be issued under the Indenture
as supplemented by such Supplemental Indenture shall either be themselves exempt
from the provisions of such Act or are to be issued in a transaction exempt
therefrom.
(S) 11.04. DELIVERY TO NOTEHOLDERS. Promptly upon the execution of
any Indenture Supplemental to this Indenture, the Trustee shall deliver by mail
to each Noteholder a copy of such Supplemental Indenture.
56
ARTICLE TWELVE
MEETINGS OF NOTEHOLDERS
(S) 12.01. MODIFICATIONS OF INDENTURE. Modifications and alterations
of this Indenture, of any Supplemental Indenture hereto, and of the rights and
obligations of the Company and of the Holders of the Notes may be made as and to
the extent hereinafter provided in this Article Twelve.
(S) 12.02. CALLING OF MEETINGS; VOTING. The Trustee may at any time
call a meeting of the Noteholders, and it shall call such a meeting on the
written request of the Company. In the event of the Trustee's failing for ten
Business Days to call a meeting after being thereunto requested as above set
forth, the Company pursuant to resolution of the Board of Directors may call
such meeting. Such meeting may also be called at any time by the Holders of not
less than 10% of the aggregate principal amount of the Notes at the time
Outstanding. Every such meeting called at the instance of the Trustee shall be
held at the principal corporate trust office of the Trustee, but if called by or
at the request of the Company or by the Noteholders it shall be held at such
place in the Borough of Manhattan, the City of New York, as may be specified in
the notice calling such meeting or requesting such meeting to be called. If
such meeting is called by the Trustee, written notice thereof, stating the place
and time thereof and in general terms the business to be submitted, shall be
mailed by the Trustee not less than 30 days before such meeting,
(a) by mail to each Registered Owner of Notes, and
(b) by mail to the Company addressed to the General Partner at 3900
Hamilton Boulevard, Allentown, Pennsylvania 18103, Attention: President,
provided, however, that the mailing of any such notice shall in no case be a
condition precedent to the validity of any action taken at such meeting. Any
meeting of Noteholders shall be valid without notice if the Holders of all Notes
then Outstanding are present in person or by proxy and if the Company and the
Trustee are present by duly authorized representatives, or if notice is waived
before or after the meeting by the Company, the Holders of all Notes Outstanding
and by the Trustee.
All Holders of Notes at the time of such meeting shall be entitled to
vote thereat; except that
(i) the Trustee may, and, upon request of the Company or of the
Required Holder(s) of all series of Notes, shall fix a day not exceeding
ninety (90) days preceding the date for which the meeting is called as a
record date for the determination of Holders of Notes entitled to notice of
and to vote at such meeting and any adjournment thereof, and only such
Holders who shall have been Holders on the date so fixed, and who are
entitled to vote such Notes at the meeting, shall be entitled to receive
notice of such meeting, and Notes may
57
be voted at such meeting and any adjournment thereof only by the Holders,
and their proxies, who shall have been Registered Owners of such Notes on
such record date, notwithstanding any transfer of any such Notes on the
books of the Company after such date; and
(ii) no one shall be entitled to vote in respect of any Note owned or
held by, for the account of or for the benefit or interest of, the Company
or any of its Affiliates.
(S) 12.03. ATTENDANCE AT MEETINGS. Attendance by Noteholders at any
meeting may be in person or by proxy.
Each person seeking to attend or vote at any meeting of Noteholders
must, if required by any Responsible Officer of the Trustee or authorized
representative of the Company, produce such proof of personal identity as shall
be satisfactory to the Inspectors of Votes (as hereinafter defined). Every
proxy shall be signed by the Noteholder himself or by his duly authorized
attorney, as the case may be, and shall be witnessed, and its genuineness if
questioned shall be established to the satisfaction of the Inspectors of Votes.
All proxies and certificates presented at any meeting shall be delivered to the
Inspectors of Votes and filed with the Trustee.
Officers and nominees of the Company and of the Trustee may attend at
any such meeting and take part therein, but shall not be entitled to vote
thereat except to the extent that they may be Noteholders or may hold proxies of
Noteholders.
(S) 12.04. CHAIRMAN AND SECRETARY; INSPECTOR OF VOTES. Persons named
by the Trustee, if represented at the meeting, shall act as temporary Chairman
and Secretary, respectively, of the meeting, but if the Trustee shall not be
represented or shall fail to nominate such persons or if any person so nominated
shall not be present, then the Noteholders and proxies present shall by a
majority vote, irrespective of the amount of their holdings, elect other persons
from those present to fill such vacancy or vacancies. A permanent Chairman and
a permanent Secretary of such meeting shall be elected from those present by the
Noteholders and proxies entitled to vote by more than 50% of the aggregate
principal amount of the Notes represented at the meeting. The Trustee, if
represented at the meeting, shall appoint two Inspectors of Votes (the
"INSPECTORS OF VOTES") who shall count all votes cast at such meeting, except
votes on the election of a Chairman and Secretary as aforesaid, and who shall
make and file with the Secretary of the meeting their verified written report in
duplicate of all such votes to cast at said meeting. If the Trustee shall not
be represented at the meeting or shall fail to nominate such Inspectors of Votes
or if either Inspector of Votes fails to attend the meeting, the vacancy shall
be filled by appointment by the temporary Chairman of the meeting. The Company
shall deliver to the Inspectors of Votes, after their designation and prior to
any vote of Noteholders which may be taken at such meeting upon any resolution
providing for a modification or alteration of this Indenture or any Indenture
Supplemental hereto or of the rights or obligations of the Company or of the
Holders of the Notes, an Officers' Certificate stating the aggregate principal
amount of Notes owned or held by, for the account of or for the benefit or
interest of, the Company or any Affiliate of the Company (whether held in the
treasury of the
58
Company or any such Affiliate or pledged to secure any indebtedness) and
identifying such Notes by serial number or otherwise.
(S) 12.05. QUORUM; ADJOURNMENT. The Holders (or Persons entitled to
vote the same) of not less than 51% of the aggregate principal amount of the
Notes at the time Outstanding entitled to be voted at any such meeting must be
present at such meeting in person or by proxy in order to constitute a quorum
for the transaction of business, less than a quorum, however, having power to
adjourn. If such meeting is adjourned by less than a quorum for more than seven
days, notice thereof shall forthwith be mailed by the Trustee, if such meeting
shall have been called by the Trustee, to the persons specified in (S) 12.02(a)
and (S) 12.02(b). The failure to mail such notice as aforesaid shall in no case
affect the validity of any action taken at any meeting held pursuant to such
adjournment.
(S) 12.06. MODIFICATIONS OF INDENTURE. Any modifications or
alterations of this Indenture, of any Indenture Supplemental hereto, and of the
rights and obligations of the Company and of the Holders of the Notes may be
made at a meeting of Noteholders duly convened and held in accordance with the
provisions of this Article Eleven, but only by a resolution duly adopted by the
affirmative vote, in person or by proxy, of the Holders (or persons entitled to
vote the same) of at least 51% of the aggregate principal amount of the 1997
Notes at the time Outstanding and the Required Holder(s) of each other series of
Notes at the time Outstanding and in each case entitled to be voted upon any
such modification or alteration when such meeting is held and approved by
resolution of the Board of Directors as hereinafter specified; but no such
modification or alteration shall be made, without the consent of the Holder of
any Note Outstanding hereunder, which will (a) impair or affect the right of
such Holder to receive payment of the principal of (and Yield-Maintenance
Amount, if any) and interest on such Note or to institute suit for the
enforcement of any such payment, or (b) reduce the percentage of the principal
amount of Notes required for the authorization of any such modification or
alteration; nor shall any modification or alteration be made which will affect
the time, amount or allocation of any prepayments or redemption payments with
respect to any of the 1997 Notes or any other series of Notes Outstanding
hereunder without the affirmative vote, in person or by proxy, of all Holders of
1997 Notes at the time Outstanding or all Holders of such other series of Notes
(or persons entitled to vote the same) at the time Outstanding, as applicable;
nor shall any action permitted under this (S) 12.06 and taken at any meeting of
the Noteholders affect the rights under this Indenture or under any Indenture
Supplemental hereto of the Holders of the 1997 Notes or of one or more, but less
than all, of the other series of Notes Outstanding hereunder, unless such action
shall have received the affirmative vote, in person or by proxy, of the
Holder(s) of not less than 51% in aggregate principal amount of 1997 Notes then
outstanding (or persons entitled to vote the same), if so effected, and the
Required Holder(s) (or persons entitled to vote the same) of the Notes at the
time Outstanding of each other series so affected, in each case entitled to be
voted upon any such action when such meeting is held. For all purposes of this
Article Twelve, the Trustee shall be entitled to rely upon an opinion of Counsel
with respect to the extent, if any, as to which any action taken at such meeting
affects the rights under this Indenture or under any Indenture Supplemental
hereto of any Holders of Notes then Outstanding.
59
(S) 12.07. RECORD OF MEETING; ADOPTION AND APPROVAL. A record in
duplicate of the proceedings of each meeting of Noteholders shall be prepared by
the Secretary of the meeting and shall have attached thereto the original
reports of the Inspectors of Votes, and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and a
copy of the notice of the adjournment thereof, if required under (S) 12.05, and
showing that said notices were delivered as provided in (S) 12.02 and, in a
proper case, as provided in (S) 12.05. Such record shall be signed and verified
by the affidavits of the permanent Chairman, the permanent Secretary of the
meeting, and a duly authorized representative of the Trustee if such a
representative was present at the meeting, and one duplicate thereof shall be
delivered to the Company and the other to the Trustee for preservation by the
Trustee. Any record so signed and verified shall be proof of the matters
therein stated until the contrary is proved, and such meeting shall be deemed
conclusively to have been duly convened and held, and any resolution or
proceeding stated in such record to have been adopted or taken shall be deemed
conclusively to have been duly adopted or taken by such meeting. A true copy of
any resolution adopted by such meeting shall be mailed by the Trustee to the
Noteholders (but failure to mail copies of such resolution as aforesaid shall
not affect the validity thereof). Proof of such publication and mailing by the
affidavit or affidavits of some person or persons having knowledge of the facts
shall be filed with the Trustee. No such Noteholders' resolution shall be
binding unless approved by the Board of Directors as evidenced by a Certified
Resolution filed with the Trustee, and any resolution of Noteholders so adopted
and approved by the Board of Directors shall be deemed conclusively to be
binding upon the Company, the Trustee and the Holders of all Notes, except as
otherwise specifically provided in this Article Twelve; provided, that no such
resolution of the Noteholders, or of the Board of Directors, shall in any manner
be so construed as to change or modify any of the rights or obligations of the
Trustee without its written assent thereto. Nothing in this Article Twelve
contained shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Noteholders or of any right expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee or to the
Noteholders under any of the provisions of this Indenture or of the Notes.
(S) 12.08. WRITTEN CONSENT. Anything in this Article Twelve
contained to the contrary notwithstanding, the Trustee shall be entitled to rely
upon, in taking or refraining from taking any action as to which the approval of
the Noteholders is required, upon receipt of the written consent or consents of
the Holders of the requisite percentages of the aggregate principal amount of
the 1997 Notes then Outstanding or Notes of another series then Outstanding, as
applicable, and in each case entitled to consent, in lieu of a vote of the
Noteholders at a meeting duly called and held for that purpose.
(S) 12.09. ENDORSEMENT OF NEW NOTES. Notes authenticated and
delivered after the date of any Noteholders' meeting or consent may bear a
notation, in form approved by the Trustee, as to the action taken and, in such
case, upon demand of the Holder of any Note Outstanding at the date of any such
meeting and presentation of such Holder's Note for the purpose at the principal
corporate trust office of the Trustee, the Company shall cause suitable notation
to be made on such Note by endorsement or otherwise as to any action taken at
any meeting of Noteholders theretofore
60
held or in any consent theretofore given. If the Company or the Trustee shall so
determine, new Notes so modified that they will, in the opinion of the Trustee
and the Board of Directors, conform to such Noteholders' resolutions, shall be
prepared, authenticated and delivered, and such new Notes shall be exchanged for
Notes of the same series and maturity then Outstanding hereunder, upon demand
of, and without cost to, the Holders thereof, upon surrender of such Notes. The
Company or the Trustee may require Notes to be presented for notation or
exchange as aforesaid if either shall see fit to do so. Instruments supplemental
to this Indenture embodying any modification or alteration of his Indenture or
of any Indenture Supplemental hereto, or of the rights and obligations of the
Company or of the Holders of the Notes at any Noteholders' meeting approved by
resolution of the Board of Directors as aforesaid, may be executed by the
Trustee and the Company; and upon demand of the Trustee, or if so specified in
any resolution adopted by any such Noteholders' meeting, shall be executed by
the Company and the Trustee.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
(S) 13.01. BENEFITS RESTRICTED. Nothing in this Indenture, expressed
or implied, is intended or shall be construed to confer upon, or give to, any
Person, other than the parties hereto, and the Holders of the Notes, any right,
remedy or claim under or by reason of this Indenture or any covenant, condition
or stipulation hereof; and the covenants, stipulations and agreements in this
Indenture contained are and shall be for the sole and exclusive benefit of the
parties hereto, their successors and assigns, and the Holders of the Notes.
(S) 13.02. CANCELED NOTES. Whenever in this Indenture or in any
Indenture Supplemental hereto provision is made for the destruction or
cancellation by the Trustee and the delivery to the Company of any Notes, the
Trustee may, in lieu of such delivery, destroy such Notes and deliver a
certificate of such destruction to the Company.
(S) 13.03. SEVERABILITY; CONFLICTING PROVISIONS. In case any one or
more of the provisions contained in this Indenture or in the Notes should be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby.
In the event that this Indenture shall have been qualified under the
Trust Indenture Act of 1939, then, if any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included in this Indenture by any of Sections 310-317,
inclusive, of the Trust Indenture Act of 1939, such required provision shall
control.
61
(S) 13.04. EXPENSES. Except as otherwise provided in the 1997 Note
Agreement with respect to the initial preparation, negotiation, execution and
delivery of this Indenture, the 1997 Note Agreement and the 1997 Notes, the
Company agrees, whether or not the transactions hereby contemplated shall be
consummated, to pay, and save the Noteholders harmless against liability for the
payment of, all out-of-pocket expenses arising in connection with this
transaction, all taxes, together in each case with interest and penalties, if
any, and any income tax payable by the Noteholders in respect of any
reimbursement of such expenses, which may be payable in respect of the execution
and delivery of this Indenture or any Supplemental Indenture, or the execution,
delivery or acquisition of any Note issued under or pursuant to this Indenture,
all stenographic, printing and reproduction costs and expenses (including,
without limitation, all charges for delivery of any documents and agreements or
any drafts thereof), including, without limitation, the reasonable fees and
expenses of the Noteholders' special counsel in connection with the foregoing
agreements and instruments and any subsequent modification of any thereof or
consent under any thereof and the costs and expenses, including reasonable
attorneys' fees, incurred by the Noteholders in enforcing any of their rights
hereunder or thereunder, including without limitation costs and expenses
incurred in any bankruptcy case. The obligations of the Company under this (S)
13.04 shall survive the transfer by the Noteholders and payment of any Note.
(S) 13.05. PAYMENTS. The Trustee agrees that, so long as any
Institutional Investor holds any Notes (herein called an "INSTITUTIONAL
NOTEHOLDER"), it will make payments of principal and interest and Yield-
Maintenance Amount, if any, on the Notes held by such Noteholder not later than
12:00 o'clock noon, local time of the Institutional Noteholder, in the case of
any payment to a place within the United States, or New York time, in the case
of any other payment, on the date such payment is due, in immediately available
funds, at the Institutional Noteholder's option, by wire transfer to the
Institutional Noteholder's account as specified in writing by the Institutional
Noteholder or by check mailed or delivered to the Institutional Noteholder at
such account or address as the Institutional Noteholder may designate in
writing, in each case notwithstanding any contrary provisions contained herein
or in the Notes or in the 1997 Note Agreement or any other Note purchase
agreement with respect to the place of payment. All payments of principal and
interest and Yield-Maintenance Amount, if any, shall be made without presentment
or surrender of such Notes or in such manner as the Holder may designate in
writing notwithstanding any contrary provision herein or in any Note or the 1997
Note Agreement or any other Note purchase agreement. Each Noteholder shall,
before disposing of any Note, make a notation thereon (or on a schedule attached
thereto) of all principal payments previously made thereon and of the date to
which interest thereon has been paid.
(S) 13.06. PAYMENTS DUE ON NON-BUSINESS DAYS. Anything in this
Indenture, the Notes, the 1997 Note Agreement or any other Note purchase
agreement to the contrary notwithstanding, any payment of principal of or
interest on, or Yield-Maintenance Amount payable with respect to, any Note that
is due on a date other than a Business day shall be made on the next succeeding
Business Day. If the date for any payment is extended to the next succeeding
Business Day by reason of the preceding sentence, the period of such extension
shall not be included in the computation of the interest payable on such
Business Day.
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(S) 13.07. CERTIFICATES; OPINIONS. Except as otherwise expressly
provided in this Indenture, or in any Indenture Supplemental hereto, any
request, opinion, consent, demand, notice, order, appointment, or other
direction required or permitted to be made or given by the Company, shall be
deemed to have been sufficiently made or given if executed on behalf of the
Company by the President or any of the Vice Presidents and the Secretary or any
of the Assistant Secretaries or the Treasurer or any of the Assistant Treasurers
of the General Partner.
Any opinion of Counsel required to be furnished pursuant to any of the
provisions of this Indenture may, in lieu of stating the facts required by the
provisions hereof, state that the required conditions will be fulfilled on the
execution and delivery of designated instruments, which instruments shall be
delivered in form approved by such Counsel prior to or concurrently with the
taking or suffering by the Trustee of the action as a condition precedent to
which such opinion is required to be furnished under the terms of this
Indenture.
Upon any application by the Company to the Trustee to take any action
under any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate of the General Partner and an opinion of
Counsel, each stating that all conditions precedent provided for in this
Indenture (including compliance with any covenants which constitute a condition
precedent) with respect to such application have been complied with, whether or
not the furnishing of such documents shall be specifically required by the
provisions of this Indenture relating to such particular application.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include (i) a
statement that the person making such certificate or opinion has read such
covenant or condition; (ii) 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; (iii) a statement that, in the opinion of
such person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (iv) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Any certificate or opinion of an officer of the General Partner may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or upon representations by Counsel, unless such officer knows that the
certificates or opinion or representations with respect to the matters upon
which his or her opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should have known that the same were erroneous.
Any certificate or opinion of Counsel may be based, insofar as it
relates to factual matters, or information in possession of the Company or the
General Partner, upon the certificate or opinion of or representations by an
officer or officers of the General Partner unless such Counsel knows or had
reason to know that the certificate or opinion or representations with respect
to the matters upon which his opinion may be based as aforesaid are erroneous.
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(S) 13.08. NOTICES. Any notice to or demand upon the Trustee may be
served or presented, and such demand may be made, at the principal corporate
trust office of the Trustee. Any notice to or demand upon the Company shall be
deemed to have been sufficiently given or served by the Trustee, for all
purposes, by being deposited, postage prepaid, in a post-office letter box
addressed to the General Partner at 3900 Hamilton Boulevard, Allentown,
Pennsylvania 18103, Attention: President, or to the Company at such other
address as may be filed in writing by the Company with the Trustee.
(S) 13.09. SUCCESSORS AND ASSIGNS. Whenever in this Indenture any of
the parties hereto is named or referred to, the successors and assigns of such
party shall be deemed to be included, and all the covenants, promises and
agreements in this Indenture contained by or on behalf of the Company, or by or
on behalf of the Trustee shall bind and inure to the benefit of the respective
successors and assigns, whether so expressed or not.
(S) 13.10. COUNTERPARTS. This Indenture is being executed in several
counterparts, each of which is an original and all of which are identical. Each
counterpart of this Indenture is to be deemed an original hereof and all
counterparts collectively are to be deemed but one instrument.
(S) 13.11. GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED WITH AND
ENFORCEABLE IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT (TO THE EXTENT PERMITTED BY APPLICABLE LAW) TO ITS PRINCIPLES OF
CONFLICTS OF LAW.
(S) 13.12. HEADINGS. The descriptive headings of the several
Articles and Sections of this Indenture were formulated, used and inserted in
this Indenture for convenience only and shall not be deemed to affect the
meaning or construction of any of the provisions hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the Company has caused this Indenture to be
executed on its behalf by its General Partner, by the President or one of the
Vice Presidents of the General Partner, and the corporate seal of the General
Partner to be hereto affixed and said seal and this Indenture to be attested by
the General Partner's Secretary or one of its Assistant Secretaries, and the
Trustee, in evidence of its acceptance of the trust hereby created, has caused
this Indenture to be executed on its behalf by one of its Vice Presidents, and
its corporate seal to be hereto affixed and said seal and this Indenture to be
attested by one of its Assistant Secretaries; all as of the sixteenth day of
December, one thousand nine hundred and ninety-seven.
BUCKEYE PIPE LINE COMPANY, L.P.
Witness
By: BUCKEYE PIPE LINE COMPANY,
- ---------------------------- a Delaware corporation, as general
partner
- ----------------------------
Witness
By: /s/ Steven C. Ramsey
- ---------------------------- ------------------------------------
Steven C. Ramsey
____________________________ Senior Vice President - Finance
(Corporate Seal)
Attest:
/s/ Stephen C. Muther
----------------------------------------
Stephen C. Muther
Secretary
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Witness PNC BANK, NATIONAL ASSOCIATION,
as Trustee
- ----------------------------
- ---------------------------- By: /s/ R.E. Ernst
-------------------------------------
R.E. Ernst
Witness Vice President
- ----------------------------
(Corporate Seal)
- ---------------------------- Attest:
/s/ F.J. Deramo
----------------------------------------
Name: F.J. Deramo
Title:
66