As filed with the Securities and Exchange Commission on
March 18, 2009
Registration Statement
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SPECTRA ENERGY PARTNERS,
LP
(Exact name of registrant as
specified in its charter)
|
|
|
|
|
Delaware
|
|
4922
|
|
41-2232463
|
(State or Other Jurisdiction
of
Incorporation or Organization)
|
|
(Primary Standard Industrial
Classification Code Number)
|
|
(I.R.S. Employer
Identification No.)
|
5400 Westheimer
Court
Houston, Texas 77056
(713) 627-5400
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
Gregory J. Rizzo
President and Chief Executive
Officer
5400 Westheimer
Court
Houston, Texas 77056
(713) 627-5400
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copy to:
David P. Oelman
Vinson & Elkins
L.L.P.
1001 Fannin Street,
Suite 2500
Houston, Texas
77002
(713) 758-2222
Approximate date of commencement of proposed sale to the
public:
From time to time after the effective
date of this registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box.
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box.
o
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box.
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2 of the Exchange Act. (Check one):
|
|
|
|
|
|
|
Large accelerated
filer
o
|
|
Accelerated
filer
þ
|
|
Non-accelerated
filer
o
(Do not check if a smaller reporting company)
|
|
Smaller reporting
Company
o
|
CALCULATION
OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
Proposed Maximum
|
|
|
|
Title of Each Class of
|
|
|
Aggregate
|
|
|
Amount of
|
Securities to be Registered
|
|
|
Offering Price
|
|
|
Registration Fee
|
Common Units
|
|
|
|
|
|
|
Debt Securities(1)
|
|
|
|
|
|
|
Total
|
|
|
$1,500,000,000(2)(3)(4)
|
|
|
$83,700(5)
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
If any debt securities are issued
at an original issue discount, then the offering price of such
debt securities shall be in such amount as shall result in an
aggregate initial offering price not to exceed $1,500,000,000,
less the dollar amount of any registered securities previously
issued.
|
|
(2)
|
|
Estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(o).
In no event will the aggregate initial offering price of all
securities offered from time to time pursuant to the prospectus
included as a part of this Registration Statement exceed
$1,500,000,000. To the extent applicable, the aggregate amount
of common units registered is further limited to that which is
permissible under Rule 415(a)(4) under the Securities Act.
Any securities registered hereunder may be sold separately or as
units with other securities registered hereunder.
|
|
(3)
|
|
There are being registered
hereunder a presently indeterminate number of common units and
an indeterminate principal amount of debt securities. This
registration statement also covers an indeterminate amount of
securities as may be issued in exchange for, or upon conversion
or exercise of, as the case may be, the securities registered
hereunder.
|
|
(4)
|
|
The proposed maximum aggregate
offering price for each class of securities to be registered is
not specified pursuant to General Instruction, II.D. of
Form S-3.
|
|
(5)
|
|
Calculated in accordance with
Rule 457(o).
|
The registrants hereby amend this registration statement on
such date or dates as may be necessary to delay its effective
date until the registrants shall file a further amendment which
specifically states that this registration statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933, or until the registration
statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
PROSPECTUS
Spectra Energy Partners,
LP
Common Units
Debt Securities
We may offer, from time to time, in one or more series:
|
|
|
|
|
common units representing limited partnership interests in
Spectra Energy Partners, LP; and
|
|
|
|
debt securities of Spectra Energy Partners, LP, which may be
either senior debt securities or subordinated debt securities.
|
The securities we may offer:
|
|
|
|
|
will have a maximum aggregate offering price of $1,500,000,000;
|
|
|
|
will be offered at prices and on terms to be set forth in one or
more accompanying prospectus supplements; and
|
|
|
|
may be offered separately or together, or in separate series.
|
Our common units are traded on the New York Stock Exchange under
the symbol SEP. We will provide information in the
prospectus supplement for the trading market, if any, for any
debt securities we may offer.
This prospectus provides you with a general description of the
securities we may offer. Each time we offer to sell securities
we will provide a prospectus supplement that will contain
specific information about those securities and the terms of
that offering. The prospectus supplement also may add, update or
change information contained in this prospectus. This prospectus
may be used to offer and sell securities only if accompanied by
a prospectus supplement. You should read this prospectus and any
prospectus supplement carefully before you invest. You should
also read the documents we refer to in the Where You Can
Find More Information section of this prospectus for
information on us and our financial statements.
Limited partnerships are inherently different than
corporations. You should carefully consider each of the factors
described under Risk Factors beginning on
page 3 of this prospectus before you make an investment in
our securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is March 18, 2009
TABLE OF
CONTENTS
You should rely only on the information contained or
incorporated by reference in this prospectus. We have not
authorized any other person to provide you with different
information. You should not assume that the information
incorporated by reference or provided in this prospectus is
accurate as of any date other than the date on the front of this
prospectus.
i
GUIDE TO
READING THIS PROSPECTUS
This prospectus is part of a registration statement on
Form S-3
that we filed with the Securities and Exchange Commission, or
SEC, utilizing a shelf registration process or
continuous offering process. Under this shelf registration
process, we may, from time to time, sell up to $1,500,000,000 of
the securities described in this prospectus in one or more
offerings. Each time we offer securities, we will provide you
with this prospectus and a prospectus supplement that will
describe, among other things, the specific amounts and prices of
the securities being offered and the terms of the offering,
including, in the case of debt securities, the specific terms of
the securities.
That prospectus supplement may include additional risk factors
or other special considerations applicable to those securities
and may also add, update, or change information in this
prospectus. If there is any inconsistency between the
information in this prospectus and any prospectus supplement,
you should rely on the information in that prospectus supplement.
Throughout this prospectus, when we use the terms
we, us, or Spectra Energy
Partners, we are referring either to Spectra Energy
Partners, LP or to Spectra Energy Partners, LP and its operating
subsidiaries collectively, as the context requires. References
in this prospectus to our general partner refer to
Spectra Energy Partners (DE) GP, LP or Spectra Energy Partners
GP, LLC, the general partner of Spectra Energy Partners (DE) GP,
LP, as appropriate. References to Spectra Energy
refer to Spectra Energy Corp, the parent company of our general
partner.
WHERE YOU
CAN FIND MORE INFORMATION
We incorporate by reference information into this
prospectus, which means that we disclose important information
to you by referring you to another document filed separately
with the SEC. The information incorporated by reference is
deemed to be part of this prospectus, except for any information
superseded by information contained expressly in this
prospectus, and the information we file later with the SEC will
automatically supersede this information. You should not assume
that the information in this prospectus is current as of any
date other than the date on the front page of this prospectus.
We incorporate by reference the documents listed below and any
future filings we make with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934
(excluding any information furnished pursuant to 2.02 or 7.01 on
any current report on
Form 8-K)
until all offerings under this registration statement are
completed:
|
|
|
|
|
Our annual report on
Form 10-K
for the year ended December 31, 2008, as filed with the SEC
on March 11, 2009;
|
|
|
|
Our current report on
Form 8-K,
as filed with the SEC on February 6, 2009; and
|
|
|
|
The description of our common units contained in our
registration statement on
Form 8-A
filed on June 22, 2007, and any subsequent amendment or
report filed for the purpose of updating such description.
|
You may request a copy of any document incorporated by reference
in this prospectus and any exhibit specifically incorporated by
reference in those documents, at no cost, by writing or
telephoning us at the following address or phone number:
Spectra Energy Partners, LP
Secretary
5400 Westheimer Court
Houston, Texas 77056
(713) 627-5400
Additionally, you may read and copy any documents filed by us at
the SECs public reference room at 100 F Street,
N.E., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330
for further information
1
on the public reference room. Our filings with the SEC are also
available to the public from commercial document retrieval
services and at the SECs web site at
http://www.sec.gov
.
We also make available free of charge on our internet website at
http://www.spectraenergypartners.com
our annual reports on
Form 10-K
and our quarterly reports on
Form 10-Q,
and any amendments to those reports, as soon as reasonably
practicable after we electronically file such material with the
SEC. Information contained on our website is not incorporated by
reference into this prospectus and you should not consider
information contained on our website as part of this prospectus.
INFORMATION
REGARDING FORWARD-LOOKING STATEMENTS
Some of the information in this prospectus and our reports,
filings and other public announcements may from time to time
contain statements that do not directly or exclusively relate to
historical facts. Such statements are forward-looking
statements. You can typically identify forward-looking
statements by the use of forward-looking words, such as
may, could, project,
believe, anticipate, expect,
estimate, potential, plan,
forecast and other similar words.
All statements that are not statements of historical facts,
including statements regarding our future financial position,
business strategy, budgets, projected costs and plans and
objectives of management for future operations, are
forward-looking statements.
These forward-looking statements reflect our intentions, plans,
expectations, assumptions and beliefs about future events and
are subject to risks, uncertainties and other factors, many of
which are outside our control. Important factors that could
cause actual results to differ materially from the expectations
expressed or implied in the forward-looking statements include
known and unknown risks. Known risks and uncertainties include,
but are not limited to, the risks set forth under Risk
Factors in our annual reports on
Form 10-K
and quarterly reports on
Form 10-Q.
In light of these risks, uncertainties and assumptions, the
events described in the forward-looking statements might not
occur or might occur to a different extent or at a different
time than we have described. We undertake no obligation to
publicly update or revise any forward-looking statements,
whether as a result of new information, future events or
otherwise.
2
SPECTRA
ENERGY PARTNERS, LP
Overview
Spectra Energy Partners, LP, through our subsidiaries and equity
affiliates, is engaged in the transportation of natural gas
through interstate pipeline systems with over 2,200 miles
of pipelines that serve the southeastern United States, and the
storage of natural gas in underground facilities with aggregate
working gas storage capacity of approximately 42 billion
cubic feet (Bcf) that are located in southeast Texas, south
central Louisiana and southwest Virginia. We are a Delaware
master limited partnership formed on March 19, 2007.
We transport and store natural gas for a broad mix of customers,
including local gas distribution companies (LDC), municipal
utilities, interstate and intrastate pipelines, direct
industrial users, electric power generators, marketers and
producers. In addition to serving directly connected
southeastern markets, our pipeline and storage systems have
access to customers in the mid-Atlantic, northeastern and
midwestern regions of the United States through numerous
interconnections with major pipelines. Our rates are regulated
under the Federal Energy Regulatory Commission (FERC)
rate-making policies, and, in the case of Market Hubs
storage facility in Texas, by the Texas Railroad Commission
(TRC).
Our operations and activities are managed by our general
partner, Spectra Energy Partners (DE) GP, LP, which in turn is
managed by its general partner, Spectra Energy Partners GP, LLC,
(the General Partner). The General Partner is wholly owned by a
subsidiary of Spectra Energy Corp (Spectra Energy). Spectra
Energy is a separate, publicly traded entity which trades on the
New York Stock Exchange under the symbol SE.
Our principal executive offices are located at
5400 Westheimer Court, Houston, Texas 77056 and the
telephone number is
713-627-5400.
3
RISK
FACTORS
An investment in our securities involves risks. You should
carefully consider all of the information contained in or
incorporated by reference in this prospectus and additional
information which may be incorporated by reference in this
prospectus or any prospectus supplement in the future as
provided under Where You Can Find More Information,
including our annual reports on
Form 10-K
and quarterly reports on
Form 10-Q,
including the risk factors described under Risk
Factors in such reports. This prospectus also contains
forward looking statements that involve risks and uncertainties.
Please read Information Regarding Forward-Looking
Statements. Our actual results could differ materially
from those anticipated in the forward looking statements as a
result of certain factors, including the risks described
elsewhere in this prospectus or any prospectus supplement and in
the documents incorporated by reference into this prospectus or
any prospectus supplement. If any of these risks occur, our
business, financial condition or results of operation could be
adversely affected.
USE OF
PROCEEDS
Unless otherwise indicated to the contrary in an accompanying
prospectus supplement, we will use the net proceeds from the
sale of the securities covered by this prospectus for general
partnership purposes, which may include debt repayment, future
acquisitions, capital expenditures and additions to working
capital.
DESCRIPTION
OF DEBT SECURITIES
We will issue debt securities under an indenture between Spectra
Energy Partners, LP and a trustee that we will name in the
related prospectus supplement. If we offer senior debt
securities, we will issue them under a senior indenture. If we
issue subordinated debt securities, we will issue them under a
subordinated indenture. The term Trustee as used in
this prospectus refers to the trustee under any of the above
indentures. References in this prospectus to an
Indenture refer to the particular indenture under
which Spectra Energy Partners, LP issues a series of debt
securities. The debt securities will be governed by the
provisions of the related Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939.
This description is a summary of the material provisions of the
debt securities and the Indentures. We urge you to read the
forms of Indentures filed as exhibits to the registration
statement of which this prospectus is a part because those
Indentures, and not this description, govern your rights as a
holder of debt securities.
General
Any series of debt securities:
|
|
|
|
|
will be issued only in fully registered form; and
|
|
|
|
will be our general obligations.
|
The Indenture does not limit the total amount of debt securities
that may be issued. Debt securities under the Indenture may be
issued from time to time in separate series, up to the aggregate
amount authorized for each such series.
We will prepare a prospectus supplement and either an indenture
supplement or a resolution of the board of directors of the
general partner of the issuer and accompanying officers
certificate relating to any series of debt securities that we
offer, which will include specific terms relating to some or all
of the following:
|
|
|
|
|
whether the debt securities are senior or subordinated debt
securities;
|
|
|
|
the form and title of the debt securities;
|
|
|
|
the total principal amount of the debt securities;
|
|
|
|
the date or dates on which the debt securities may be issued;
|
4
|
|
|
|
|
the portion of the principal amount which will be payable if the
maturity of the debt securities is accelerated;
|
|
|
|
any right we may have to defer payments of interest by extending
the dates payments are due and whether interest on those
deferred amounts will be payable;
|
|
|
|
the dates on which the principal and premium, if any, of the
debt securities will be payable;
|
|
|
|
the interest rate which the debt securities will bear and the
interest payment dates for the debt securities;
|
|
|
|
any option or conversion provisions;
|
|
|
|
any optional redemption provisions;
|
|
|
|
any sinking fund or other provisions that would obligate us to
redeem or otherwise repurchase the debt securities;
|
|
|
|
whether the debt securities may be issued in amounts other than
$1,000 each or multiples thereof;
|
|
|
|
any changes to or additional Events of Default or
covenants; and
|
|
|
|
any other terms of the debt securities.
|
This description of debt securities will be deemed modified,
amended or supplemented by any description of any series of debt
securities set forth in a prospectus supplement related to that
series.
The prospectus supplement will also describe any material United
States federal income tax consequences or other special
considerations regarding the applicable series of debt
securities, including those relating to:
|
|
|
|
|
debt securities with respect to which payments of principal,
premium or interest are determined with reference to an index or
formula, including changes in prices of particular securities,
currencies or commodities;
|
|
|
|
debt securities with respect to which principal, premium or
interest is payable in a foreign or composite currency;
|
|
|
|
debt securities that are issued at a discount below their stated
principal amount, bearing no interest or interest at a rate that
at the time of issuance is below market rates; and
|
|
|
|
variable rate debt securities that are exchangeable for fixed
rate debt securities.
|
Interest payments on debt securities in certificated form may be
made by check mailed to the registered holders or, if so stated
in the applicable prospectus supplement, at the option of a
holder, by wire transfer to an account designated by the holder.
Unless otherwise provided in the applicable prospectus
supplement, debt securities may be transferred or exchanged at
the office of the Trustee at which its corporate trust business
is principally administered in the United States, subject to the
limitations provided in the Indenture, without the payment of
any service charge, other than any applicable tax or other
governmental charge.
Any funds paid to the Trustee or any paying agent for the
payment of amounts due on any debt securities that remain
unclaimed for two years will be returned to us, and the holders
of the debt securities must look only to us for payment after
that time.
5
Events of
Default, Remedies and Notice
Events
of Default
Unless otherwise specified in a supplement to the Indenture,
each of the following events will be an Event of
Default under the Indenture with respect to a series of
debt securities:
|
|
|
|
|
default in any payment of interest on any debt securities of
that series when due that continues for 30 days;
|
|
|
|
default in the payment of principal of or premium, if any, on
any debt securities of that series when due at its stated
maturity, upon redemption, upon required repurchase or otherwise;
|
|
|
|
default in the payment of any sinking fund payment on any debt
securities of that series when due;
|
|
|
|
failure by us to comply for 60 days after notice with the
other agreements contained in the Indenture, any supplement to
the Indenture with respect to that series or any board
resolution authorizing the issuance of that series; or
|
|
|
|
certain events of bankruptcy, insolvency or reorganization of
the issuer.
|
Exercise
of Remedies
If an Event of Default, other than an Event of Default described
in the fifth bullet point above, occurs and is continuing, the
Trustee or the holders of at least 25% in principal amount of
the outstanding debt securities of that series may declare the
entire principal of, premium, if any, and accrued and unpaid
interest, if any, on all the debt securities of that series to
be due and payable immediately.
A default under the fourth bullet point above will not
constitute an Event of Default until the Trustee or the holders
of 25% in principal amount of the outstanding debt securities of
that series notifies us of the default and such default is not
cured within 60 days after receipt of notice.
If an Event of Default described in the fifth bullet point above
occurs, the principal of, premium, if any, and accrued and
unpaid interest on all outstanding debt securities of all series
will become immediately due and payable without any declaration
of acceleration or other act on the part of the Trustee or any
holders.
The holders of a majority in principal amount of the outstanding
debt securities of a series may rescind any declaration of
acceleration by the Trustee or the holders with respect to the
debt securities of that series, but only if:
|
|
|
|
|
rescinding the declaration of acceleration would not conflict
with any judgment or decree of a court of competent
jurisdiction; and
|
|
|
|
all existing Events of Default with respect to that series have
been cured or waived, other than the nonpayment of principal,
premium or interest on the debt securities of that series that
has become due solely by the declaration of acceleration.
|
If an Event of Default occurs and is continuing, the Trustee
will be under no obligation, except as otherwise provided in the
Indenture, to exercise any of the rights or powers under the
Indenture at the request or direction of any of the holders
unless such holders have offered to the Trustee reasonable
indemnity or security against any costs, liability or expense.
No holder may pursue any remedy with respect to the Indenture or
the debt securities of any series, except to enforce the right
to receive payment of principal, premium or interest on its own
debt securities when due, unless:
|
|
|
|
|
such holder has previously given the Trustee notice that an
Event of Default with respect to that series is continuing;
|
|
|
|
holders of at least 25% in principal amount of the outstanding
debt securities of that series have requested that the Trustee
pursue the remedy;
|
6
|
|
|
|
|
such holders have offered the Trustee reasonable indemnity or
security against any cost, liability or expense;
|
|
|
|
the Trustee has not complied with such request within
60 days after the receipt of the request and the offer of
indemnity or security; and
|
|
|
|
the holders of a majority in principal amount of the outstanding
debt securities of that series have not given the Trustee a
direction that is inconsistent with such request within such
60-day
period.
|
The holders of a majority in principal amount of the outstanding
debt securities of a series have the right, subject to certain
restrictions, to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or of
exercising any right or power conferred on the Trustee with
respect to that series of debt securities. The Trustee, however,
may refuse to follow any direction that:
|
|
|
|
|
conflicts with law;
|
|
|
|
is inconsistent with any provision of the Indenture;
|
|
|
|
the Trustee determines is unduly prejudicial to the rights of
any other holder; or
|
|
|
|
would involve the Trustee in personal liability.
|
Notice
of Event of Default
Within 30 days after the occurrence of an Event of Default,
we are required to give written notice to the Trustee and
indicate the status of the default and what action we are taking
or proposes to take to cure the default. In addition, we are
required to deliver to the Trustee, within 120 days after
the end of each fiscal year, a compliance certificate indicating
that we have complied with all covenants contained in the
Indenture or whether any default or Event of Default has
occurred during the previous year.
Within 90 days after the occurrence of any default known to
it, the Trustee must mail to each holder a notice of the
default. Except in the case of a default in the payment of
principal, premium or interest with respect to any debt
securities, the Trustee may withhold such notice, but only if
and so long as the board of directors, the executive committee
or a committee of directors or responsible officers of the
Trustee in good faith determines that withholding such notice is
in the interests of the holders.
Amendments
and Waivers
We may supplement or amend the Indenture without the consent of
any holder of debt securities to, among other things:
|
|
|
|
|
cure any ambiguity, omission, defect or inconsistency;
|
|
|
|
provide for the assumption by a successor of our obligations
under the Indenture;
|
|
|
|
secure the debt securities;
|
|
|
|
add covenants for the benefit of the holders or surrender any
right or power conferred upon us;
|
|
|
|
in the case of any subordinated debt security, to make any
change in the subordination provisions that limits or terminates
the benefits applicable to any holder of our Senior Indebtedness;
|
|
|
|
make any change that does not adversely affect the rights of any
holder;
|
|
|
|
add or appoint a successor or separate Trustee;
|
|
|
|
comply with any requirement of the SEC in connection with the
qualification of the Indenture under the Trust Indenture
Act; or
|
|
|
|
establish the form or terms of the debt securities of any new
series.
|
In addition, we may amend the Indenture if the holders of a
majority in principal amount of all debt securities of each
series that would be affected then outstanding under the
Indenture consent to it. We may
7
not, however, without the consent of each holder of outstanding
debt securities of each series that would be affected, amend the
Indenture to:
|
|
|
|
|
reduce the percentage in principal amount of debt securities of
any series whose holders must consent to an amendment;
|
|
|
|
reduce the rate of or extend the time for payment of interest on
any debt securities;
|
|
|
|
reduce the principal of or extend the stated maturity of any
debt securities;
|
|
|
|
reduce the premium payable upon the redemption of any debt
securities or change the time at which any debt securities may
or shall be redeemed;
|
|
|
|
make any debt securities payable in a currency other than that
stated in the debt security;
|
|
|
|
in the case of any subordinated debt security, make any change
in the subordination provisions that adversely affects the
rights of any holder under those provisions;
|
|
|
|
impair the right of any holder to receive payment of premium,
principal or interest with respect to such holders debt
securities on or after the applicable due date;
|
|
|
|
impair the right of any holder to institute suit for the
enforcement of any payment with respect to such holders
debt securities;
|
|
|
|
release any security that has been granted in respect of the
debt securities;
|
|
|
|
make any change in the amendment provisions which require each
holders consent; or
|
|
|
|
make any change in the waiver provisions.
|
The consent of the holders is not necessary under the Indenture
to approve the particular form of any proposed amendment. It is
sufficient if such consent approves the substance of the
proposed amendment. After an amendment under the Indenture
requiring the consent of the holders becomes effective, we are
required to mail to all holders a notice briefly describing the
amendment. The failure to give, or any defect in, such notice,
however, will not impair or affect the validity of the amendment.
The holders of a majority in aggregate principal amount of the
outstanding debt securities of each affected series, on behalf
of all such holders, and subject to certain rights of the
Trustee, may waive:
|
|
|
|
|
compliance with certain restrictive provisions of the
Indenture; and
|
|
|
|
any past default under the Indenture;
|
except that such majority of holders may not waive a default:
|
|
|
|
|
in the payment of principal, premium or interest; or
|
|
|
|
in respect of a provision that under the Indenture cannot be
amended without the consent of all holders of the series of debt
securities that is affected.
|
Satisfaction
and Discharge
The Indenture will be discharged and will cease to be of further
effect as to all outstanding debt securities of any series
issued thereunder, when:
(a) either:
(1) all outstanding debt securities of that series that
have been authenticated (except lost, stolen or destroyed debt
securities that have been replaced or paid and debt securities
for whose payment money has theretofore been deposited in trust
and thereafter repaid to the issuer) have been delivered to the
Trustee for cancellation; or
(2) all outstanding debt securities of that series that
have not been delivered to the Trustee for cancellation have
become due and payable or will become due and payable at their
stated maturity
8
within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee and in any
case we have irrevocably deposited with the Trustee as trust
funds cash, certain U.S. government obligations or a
combination thereof, in such amounts as will be sufficient, to
pay the entire indebtedness of such debt securities not
delivered to the Trustee for cancellation, for principal,
premium, if any, and accrued interest to the stated maturity or
redemption date;
(b) we have paid or caused to be paid all other sums
payable by us under the Indenture with respect to the debt
securities of that series; and
(c) we have delivered to the Trustee an accountants
certificate as to the sufficiency of the trust funds, without
reinvestment, to pay the entire indebtedness of such debt
securities at maturity.
Defeasance
At any time, we may terminate, with respect to debt securities
of a particular series, all our obligations under such series of
debt securities and the Indenture, which we call a legal
defeasance. If we decide to make a legal defeasance,
however, we may not terminate our obligations specified in the
Indenture, including those:
|
|
|
|
|
relating to the defeasance trust;
|
|
|
|
to register the transfer or exchange of the debt securities;
|
|
|
|
to replace mutilated, destroyed, lost or stolen debt
securities; or
|
|
|
|
to maintain a registrar and paying agent in respect of the debt
securities.
|
At any time we may also effect a covenant
defeasance, which means we have elected to terminate our
obligations under covenants applicable to a series of debt
securities and described in the prospectus supplement applicable
to such series, other than as described in such prospectus
supplement, and any Event of Default resulting from a failure to
observe such covenants.
The legal defeasance option may be exercised notwithstanding a
prior exercise of the covenant defeasance option. If the legal
defeasance option is exercised, payment of the affected series
of debt securities may not be accelerated because of an Event of
Default with respect to that series. If the covenant defeasance
option is exercised, payment of the affected series of debt
securities may not be accelerated because of an Event of Default
specified in the fourth or sixth bullet points under
Events of Default, Remedies and
Notice Events of Default above or an Event of
Default that is added specifically for such series and described
in a prospectus supplement.
In order to exercise either defeasance option, we must:
|
|
|
|
|
irrevocably deposit in trust with the Trustee money or certain
U.S. government obligations for the payment of principal,
premium, if any, and interest on the series of debt securities
to redemption or stated maturity, as the case may be;
|
|
|
|
comply with certain other conditions, including that no
bankruptcy or default with respect to the issuer has occurred
and is continuing 91 days after the deposit in
trust; and
|
|
|
|
deliver to the Trustee an opinion of counsel to the effect that
holders of the defeased series of debt securities will not
recognize income, gain or loss for Federal income tax purposes
as a result of such defeasance and will be subject to Federal
income tax on the same amounts and in the same manner and at the
same times as would have been the case if such defeasance had
not occurred. In the case of legal defeasance only, such opinion
of counsel must be based on a ruling of the Internal Revenue
Service or a change in applicable Federal income tax law.
|
No
Personal Liability
Our partners, directors, officers, employees, incorporators and
members will not be liable for:
|
|
|
|
|
any of our obligations under the debt securities or the
Indenture; or
|
|
|
|
any claim based on, in respect of, or by reason of, such
obligations or their creation.
|
9
By accepting a debt security, each holder will be deemed to have
waived and released all such liability. This waiver and release
are part of the consideration for the issuance of the debt
securities. This waiver may not be effective, however, to waive
liabilities under the Federal securities laws and it is the view
of the SEC that such a waiver is against public policy.
No
Protection in the Event of a Change of Control
Unless otherwise set forth in the prospectus supplement, the
debt securities will not contain any provisions that protect the
holders of the debt securities in the event of our change of
control or in the event of a highly leveraged transaction,
whether or not such transaction results in our change of control.
Provisions
Relating only to the Senior Debt Securities
The senior debt securities will rank equally in right of payment
with all of our other unsubordinated debt. The senior debt
securities will be effectively subordinated, however, to all of
our secured debt to the extent of the value of the collateral
for that debt. We will disclose the amount of our secured debt
in the prospectus supplement.
Provisions
Relating only to the Subordinated Debt Securities
Subordinated
Debt Securities Subordinated to Senior
Indebtedness
The subordinated debt securities will rank junior in right of
payment to all of our Senior Indebtedness. Senior
Indebtedness will be defined in a supplemental indenture
or authorizing resolutions respecting any issuance of a series
of subordinated debt securities, and the definition will be set
forth in the prospectus supplement.
Payment
Blockages
The subordinated indenture will provide that no payment of
principal, interest and any premium on the subordinated debt
securities may be made in the event:
|
|
|
|
|
we or our property is involved in any voluntary or involuntary
liquidation or bankruptcy;
|
|
|
|
we fail to pay the principal, interest, any premium or any other
amounts on any Senior Indebtedness of the issuer within any
applicable grace period or the maturity of such Senior
Indebtedness is accelerated following any other default, subject
to certain limited exceptions set forth in the subordinated
indenture; or
|
|
|
|
any other default on any of our Senior Indebtedness occurs that
permits immediate acceleration of its maturity, in which case a
payment blockage on the subordinated debt securities will be
imposed for a maximum of 179 days at any one time.
|
No
Limitation on Amount of Senior Debt
The subordinated indenture will not limit the amount of Senior
Indebtedness that we may incur, unless otherwise indicated in
the prospectus supplement.
Book
Entry, Delivery and Form
The debt securities of a particular series may be issued in
whole or in part in the form of one or more global certificates
that will be deposited with the Trustee as custodian for The
Depository Trust Company, New York, New York
(DTC). This means that we will not issue
certificates to each holder except in the limited circumstances
described below. Instead, one or more global debt securities
will be issued to DTC, who will keep a computerized record of
its participants (for example, your broker) whose clients have
purchased the debt securities. The participant will then keep a
record of its clients who purchased the debt securities. Unless
it is exchanged in whole or in part for a certificated debt
security, a global debt security may not be
10
transferred, except that DTC, its nominees and their successors
may transfer a global debt security as a whole to one another.
Beneficial interests in global debt securities will be shown on,
and transfers of global debt securities will be made only
through, records maintained by DTC and its participants.
DTC has provided us the following information: DTC is a
limited-purpose trust company organized under the New York
Banking Law, a banking organization within the
meaning of the New York Banking Law, a member of the United
States Federal Reserve System, a clearing
corporation within the meaning of the New York Uniform
Commercial Code and a clearing agency registered
under the provisions of Section 17A of the Securities
Exchange Act of 1934. DTC holds securities that its participants
(Direct Participants) deposit with DTC. DTC also
records the settlement among Direct Participants of securities
transactions, such as transfers and pledges, in deposited
securities through computerized records for Direct
Participants accounts. This eliminates the need to
exchange certificates. Direct Participants include securities
brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations.
DTCs book-entry system is also used by other organizations
such as securities brokers and dealers, banks and trust
companies that work through a Direct Participant. The rules that
apply to DTC and its participants are on file with the SEC.
DTC is a wholly owned subsidiary of The Depository
Trust & Clearing Corporation (DTCC). DTCC
is the holding company for DTC, National Securities Clearing
Corporation and Fixed Income Clearing Corporation, all of which
are registered clearing agencies. DTCC is owned by the users of
its regulated subsidiaries.
We will wire all payments on the global debt securities to
DTCs nominee. We and the Trustee will treat DTCs
nominee as the owner of the global debt securities for all
purposes. Accordingly, we, the Trustee and any paying agent will
have no direct responsibility or liability to pay amounts due on
the global debt securities to owners of beneficial interests in
the global debt securities.
It is DTCs current practice, upon receipt of any payment
on the global debt securities, to credit Direct
Participants accounts on the payment date according to
their respective holdings of beneficial interests in the global
debt securities as shown on DTCs records. In addition, it
is DTCs current practice to assign any consenting or
voting rights to Direct Participants whose accounts are credited
with debt securities on a record date, by using an omnibus
proxy. Payments by participants to owners of beneficial
interests in the global debt securities, and voting by
participants, will be governed by the customary practices
between the participants and owners of beneficial interests, as
is the case with debt securities held for the account of
customers registered in street name. However,
payments will be the responsibility of the participants and not
of DTC, the Trustee or us.
Debt securities represented by a global debt security will be
exchangeable for certificated debt securities with the same
terms in authorized denominations only if:
|
|
|
|
|
DTC notifies us that it is unwilling or unable to continue as
depositary or if DTC ceases to be a clearing agency registered
under applicable law and in either event a successor depositary
is not appointed by us within 90 days; or
|
|
|
|
an Event of Default occurs and DTC notifies the Trustee of its
decision to exchange the global debt security for certificated
debt securities.
|
Governing
Law
Each Indenture and all of the debt securities will be governed
by the laws of the State of New York.
The
Trustee
We will enter into each Indenture with a Trustee that is
qualified to act under the Trust Indenture Act of 1939, as
amended, and with any other trustee chosen by us and appointed
in a supplemental indenture for a particular series of debt
securities. Unless we otherwise specify in the applicable
prospectus supplement, the
11
initial Trustee for each series of debt securities will be Wells
Fargo Bank, N.A. We may maintain a banking relationship in the
ordinary course of business with our Trustee and one or more of
its affiliates.
Resignation
or Removal of Trustee
If the Trustee has or acquires a conflicting interest within the
meaning of the Trust Indenture Act after a default has
occurred and is continuing, the Trustee must either eliminate
its conflicting interest within 90 days, apply to the SEC
for permission to continue as trustee or resign, to the extent
and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and the applicable indenture. Any
resignation will require the appointment of a successor trustee
under the applicable indenture in accordance with the terms and
conditions of such indenture.
The Trustee may resign or be removed by us with respect to one
or more series of debt securities and a successor Trustee may be
appointed to act with respect to any such series. The holders of
a majority in aggregate principal amount of the debt securities
of any series may remove the Trustee with respect to the debt
securities of such series.
Limitations
on Trustee if it is Our Creditor
Each indenture will contain certain limitations on the right of
the Trustee, in the event that it becomes a creditor of us, to
obtain payment of claims in certain cases, or to realize on
certain property received in respect of any such claim as
security or otherwise.
Annual
Trustee Report to Holders of Debt Securities
The Trustee is required to submit an annual report to the
holders of the debt securities regarding, among other things,
the Trustees eligibility to serve as such, the priority of
the Trustees claims regarding certain advances made by it,
and any action taken by the Trustee materially affecting the
debt securities.
Certificates
and Opinions to be Furnished to Trustee
Each indenture will provide that, in addition to other
certificates or opinions that may be specifically required by
other provisions of the indenture, every application by us for
action by the Trustee shall be accompanied by a certificate of
certain of our officers and an opinion of counsel (who may be
our counsel) stating that, in the opinion of the signers, all
conditions precedent to such action have been complied with by
us.
MATERIAL
TAX CONSEQUENCES
This section is a summary of the material tax consequences that
may be relevant to prospective unitholders who are individual
citizens or residents of the United States and, unless otherwise
noted in the following discussion, is the opinion of
Vinson & Elkins L.L.P., counsel to our general partner
and us, insofar as it relates to legal conclusions with respect
to matters of United States federal income tax law. This section
is based upon current provisions of the Internal Revenue Code of
1986, as amended (the Internal Revenue Code),
existing and proposed Treasury regulations promulgated under the
Internal Revenue Code (the Treasury Regulations) and
current administrative rulings and court decisions, all of which
are subject to change. Later changes in these authorities may
cause the tax consequences to vary substantially from the
consequences described below. Unless the context otherwise
requires, references in this section to us or
we are to Spectra Energy Partners and the operating
partnership.
This section does not address all federal income tax matters
that affect us or the unitholders. Furthermore, this section
focuses on unitholders who are individual citizens or residents
of the United States and has only limited application to
corporations, estates, trusts, non-resident aliens or other
unitholders subject to specialized tax treatment, such as
tax-exempt institutions, foreign persons, individual retirement
accounts (IRAs), real estate investment trusts (REITs) or mutual
funds. Accordingly, each prospective unitholder is urged to
consult, and depend on, his own tax advisor in analyzing the
federal, state, local and foreign tax consequences particular to
him of the ownership or disposition of common units.
12
All statements as to matters of law and legal conclusions, but
not as to factual matters, contained in this section, unless
otherwise noted, are the opinion of Vinson & Elkins
L.L.P. and are based on the accuracy of the representations made
by us.
No ruling has been or will be requested from the IRS regarding
any matter that affects us or prospective unitholders. Instead,
we will rely on opinions and advice of Vinson & Elkins
L.L.P. Unlike a ruling, an opinion of counsel represents only
that counsels best legal judgment and does not bind the
IRS or the courts. Accordingly, the opinions and statements made
herein may not be sustained by a court if contested by the IRS.
Any contest of this sort with the IRS may materially and
adversely impact the market for the common units and the prices
at which common units trade. In addition, the costs of any
contest with the IRS, principally legal, accounting and related
fees, will result in a reduction in cash available for
distribution to our unitholders and our general partner and thus
will be borne directly or indirectly by the unitholders and the
general partner. Furthermore, the tax treatment of us, or of an
investment in us, may be significantly modified by future
legislative or administrative changes or court decisions. Any
modifications may or may not be retroactively applied.
For the reasons described below, Vinson & Elkins
L.L.P. has not rendered an opinion with respect to the following
specific federal income tax issues:
(1) the treatment of a unitholder whose common units are
loaned to a short seller to cover a short sale of common units
(please read Tax Consequences of Unit
Ownership Treatment of Short Sales);
(2) whether our monthly convention for allocating taxable
income and losses is permitted by existing Treasury Regulations
(please read Disposition of Common
Units Allocations Between Transferors and
Transferees); and
(3) whether our method for depreciating Section 743
adjustments is sustainable in certain cases (please read
Tax Consequences of Unit Ownership
Section 754 Election).
Partnership
Status
A partnership is not a taxable entity and incurs no federal
income tax liability. Instead, each partner of a partnership is
required to take into account his share of items of income,
gain, loss and deduction of the partnership in computing his
federal income tax liability, regardless of whether cash
distributions are made to him by the partnership. Distributions
by a partnership to a partner are generally not taxable to the
partner unless the amount of cash distributed to him is in
excess of his adjusted basis in his partnership interest.
Section 7704 of the Internal Revenue Code provides that
publicly-traded partnerships will, as a general rule, be taxed
as corporations. However, an exception, referred to as the
Qualifying Income Exception, exists with respect to
publicly-traded partnerships of which 90% or more of the gross
income for every taxable year consists of qualifying
income. Qualifying income includes income and gains
derived from the transportation, storage and processing of crude
oil, natural gas and products thereof and fertilizer. Other
types of qualifying income include interest (other than from a
financial business), dividends, gains from the sale of real
property and gains from the sale or other disposition of capital
assets held for the production of income that otherwise
constitutes qualifying income. We estimate that less than 1% of
our current gross income is not qualifying income; however, this
estimate could change from time to time. Based upon and subject
to this estimate, the factual representations made by us and the
general partner and a review of the applicable legal
authorities, Vinson & Elkins L.L.P. is of the opinion
that at least 90% of our current gross income constitutes
qualifying income. The portion of our income that is qualifying
income may change from time to time.
No ruling has been or will be sought from the IRS and the IRS
has made no determination as to our status or the status of the
operating partnership for federal income tax purposes or whether
our operations generate qualifying income under
Section 7704 of the Internal Revenue Code. Instead, we will
rely on the opinion of Vinson & Elkins L.L.P. on such
matters. It is the opinion of Vinson & Elkins L.L.P.
that, based upon the Internal Revenue Code, its regulations,
published revenue rulings and court decisions and the
13
representations set forth below, we will be classified as a
partnership and our operating partnership will be disregarded as
an entity separate from us for federal income tax purposes.
In rendering its opinion, Vinson & Elkins L.L.P. has
relied on factual representations made by us and the general
partner. The representations made by us and our general partner
upon which counsel has relied are:
(a) Neither we nor the operating partnership has elected or
will elect to be treated as a corporation;
(b) For each taxable year, more than 90% of our gross
income has been and will be income that Vinson &
Elkins L.L.P. has opined or will opine is qualifying
income within the meaning of Section 7704(d) of the
Internal Revenue Code; and
(c) Each hedging transaction that we treat as resulting in
qualifying income has been and will be appropriately identified
as a hedging transaction pursuant to applicable Treasury
Regulations, and has been and will be associated with oil, gas,
or products thereof that are held or to be held by us in
activities that Vinson & Elkins L.L.P. has opined or
will opine result in qualifying income.
If we fail to meet the Qualifying Income Exception, other than a
failure that is determined by the IRS to be inadvertent and that
is cured within a reasonable time after discovery, in which case
the IRS may also require us to make adjustments with respect to
our unitholders or pay other amounts, we will be treated as if
we had transferred all of our assets, subject to liabilities, to
a newly formed corporation, on the first day of the year in
which we fail to meet the Qualifying Income Exception, in return
for stock in that corporation, and then distributed that stock
to the unitholders in liquidation of their interests in us. This
deemed contribution and liquidation should be tax-free to
unitholders and us so long as we, at that time, do not have
liabilities in excess of the tax basis of our assets.
Thereafter, we would be treated as a corporation for federal
income tax purposes.
If we were treated as a corporation in any taxable year, either
as a result of a failure to meet the Qualifying Income Exception
or otherwise, our items of income, gain, loss and deduction
would be reflected only on our tax return rather than being
passed through to the unitholders, and our net income would be
taxed to us at corporate rates. In addition, any distribution
made to a unitholder would be treated as either taxable dividend
income, to the extent of our current or accumulated earnings and
profits, or, in the absence of earnings and profits, a
nontaxable return of capital, to the extent of the
unitholders tax basis in his common units, or taxable
capital gain, after the unitholders tax basis in his
common units is reduced to zero. Accordingly, taxation as a
corporation would result in a material reduction in a
unitholders cash flow and after-tax return and thus would
likely result in a substantial reduction of the value of the
units.
The remainder of this section is based on Vinson &
Elkins L.L.P.s opinion that we will be classified as a
partnership for federal income tax purposes.
Unitholders who have become limited partners of Spectra Energy
Partners will be treated as partners of Spectra Energy Partners
for federal income tax purposes. Also:
(a) assignees who have executed and delivered transfer
applications, and are awaiting admission as limited
partners, and
(b) unitholders whose common units are held in street name
or by a nominee and who have the right to direct the nominee in
the exercise of all substantive rights attendant to the
ownership of their common units,
will be treated as partners of Spectra Energy Partners for
federal income tax purposes.
As there is no direct or indirect controlling authority
addressing the federal tax treatment of assignees of common
units who are entitled to execute and deliver transfer
applications and thereby become entitled to direct the exercise
of attendant rights, but who fail to execute and deliver
transfer applications, the opinion of Vinson & Elkins
L.L.P. does not extend to these persons. Furthermore, a
purchaser or other transferee of common units who does not
execute and deliver a transfer application may not receive some
federal income tax information or reports furnished to record
holders of common units unless the common units are held in a
14
nominee or street name account and the nominee or broker has
executed and delivered a transfer application for those common
units.
A beneficial owner of common units whose units have been
transferred to a short seller to complete a short sale would
appear to lose his status as a partner with respect to those
units for federal income tax purposes. Please read
Tax Consequences of Unit Ownership
Treatment of Short Sales.
Income, gain, deductions or losses would not appear to be
reportable by a unitholder who is not a partner for federal
income tax purposes, and any cash distributions received by a
unitholder who is not a partner for federal income tax purposes
would therefore appear to be fully taxable as ordinary income.
These holders are urged to consult their own tax advisors with
respect to their status as partners in Spectra Energy Partners
for federal income tax purposes.
Tax
Consequences of Unit Ownership
Flow-Through of Taxable Income.
We will not
pay any federal income tax. Instead, each unitholder will be
required to report on his income tax return his share of our
income, gains, losses and deductions without regard to whether
corresponding cash distributions are received by him.
Consequently, we may allocate income to a unitholder even if he
has not received a cash distribution. Each unitholder will be
required to include in income his allocable share of our income,
gains, losses and deductions for our taxable year ending with or
within his taxable year. Our taxable year ends on
December 31.
Treatment of Distributions.
Cash distributions
made by us to a unitholder generally will not be taxable to him
for federal income tax purposes to the extent of his tax basis
in his common units immediately before the distribution. Cash
distributions made by us to a unitholder in an amount in excess
of his tax basis in his common units generally will be
considered to be gain from the sale or exchange of the common
units, taxable in accordance with the rules described under
Disposition of Common Units below. To
the extent that cash distributions made by us cause a
unitholders at risk amount to be less than
zero at the end of any taxable year, he must recapture any
losses deducted in previous years. TO the extent our
distributions cause a unitholders at-risk
amount to be less than zero at the end of any taxable year, he
must recapture any losses deducted in previous years. Please
read Limitations on Deductibility of
Losses.
Any reduction in a unitholders share of our liabilities
for which no partner, including the general partner, bears the
economic risk of loss, known as nonrecourse
liabilities, will be treated as a distribution of cash to
that unitholder. A decrease in a unitholders percentage
interest in us because of our issuance of additional common
units will decrease his share of our nonrecourse liabilities,
and thus will result in a corresponding deemed distribution of
cash, which may constitute a non-pro rata distribution. A
non-pro rata distribution of money or property may result in
ordinary income to a unitholder, regardless of his tax basis in
his common units, if the distribution reduces the
unitholders share of our unrealized
receivables, including depreciation recapture,
and/or
substantially appreciated inventory items, both as
defined in Section 751 of the Internal Revenue Code, and
collectively, Section 751 Assets. To that
extent, he will be treated as having received his proportionate
share of the Section 751 Assets and having exchanged those
assets with us in return for the non-pro rata portion of the
actual distribution made to him. This latter deemed exchange
will generally result in the unitholders realization of
ordinary income. That income will equal the excess of
(1) the non-pro rata portion of that distribution over
(2) the unitholders tax basis for the share of
Section 751 Assets deemed relinquished in the exchange.
Basis of Common Units.
A unitholders
initial tax basis for his common units will be the amount he
paid for the common units plus his share of our nonrecourse
liabilities. That basis will be increased by his share of our
income and by any increases in his share of our nonrecourse
liabilities. That basis will be decreased, but not below zero,
by distributions to him from us, by his share of our losses, by
any decreases in his share of our nonrecourse liabilities and by
his share of our expenditures that are not deductible in
computing taxable income and are not required to be capitalized.
A unitholder will have no share of our debt that is recourse to
the general partner, but will have a share, generally based on
his share of profits, of our nonrecourse liabilities. Please
read Disposition of Common Units
Recognition of Gain or Loss.
15
Limitations on Deductibility of Losses.
The
deduction by a unitholder of his share of our losses will be
limited to the tax basis in his units and, in the case of an
individual unitholder or a corporate unitholder, if more than
50% of the value of the corporate unitholders stock is
owned directly or indirectly by or for five or fewer individuals
or certain tax-exempt organizations, to the amount for which the
unitholder is considered to be at risk with respect
to our activities, if that is less than his tax basis. A
unitholder must recapture losses deducted in previous years to
the extent that distributions cause his at-risk amount to be
less than zero at the end of any taxable year. Losses disallowed
to a unitholder or recaptured as a result of these limitations
will carry forward and will be allowable as a deduction to the
extent that his at-risk amount is subsequently increased,
provided such losses do not exceed such common unitholders
tax basis in his common units. Upon the taxable disposition of a
unit, any gain recognized by a unitholder can be offset by
losses that were previously suspended by the at risk limitation
but may not be offset by losses suspended by the basis
limitation. Any excess loss above that gain previously suspended
by the at risk or basis limitations is no longer utilizable.
In general, a unitholder will be at risk to the extent of his
tax basis in his units, excluding any portion of that basis
attributable to his share of our nonrecourse liabilities,
reduced by (i) any portion of that basis representing
amounts otherwise protected against loss because of a guarantee,
stop loss agreement or other similar arrangement and
(ii) any amount of money he borrows to acquire or hold his
units, if the lender of those borrowed funds owns an interest in
us, is related to the unitholder or can look only to the units
for repayment, or any portion of that basis representing amounts
otherwise protected against loss because of a guarantee, stop
loss agreement or other similar arrangement. A unitholders
at-risk amount will increase or decrease as the tax basis of the
unitholders units increases or decreases, other than tax
basis increases or decreases attributable to increases or
decreases in his share of our nonrecourse liabilities.
In addition to the basis and at-risk limitations on the
deductibility of losses, the passive loss limitations generally
provide that individuals, estates, trusts and some closely-held
corporations and personal service corporations are permitted to
deduct losses from passive activities, which are generally
defined as trade or business activities in which the taxpayer
does not materially participate, only to the extent of the
taxpayers income from those passive activities. The
passive loss limitations are applied separately with respect to
each publicly-traded partnership. Consequently, any passive
losses we generate will only be available to offset our passive
income generated in the future and will not be available to
offset income from other passive activities or investments,
including our investments or a unitholders investments in
other publicly-traded partnerships, or salary or active business
income. Passive losses that are not deductible because they
exceed a unitholders share of income we generate may
generally be deducted in full when he disposes of his entire
investment in us in a fully taxable transaction with an
unrelated party. Further, a unitholders share of our net
income may be offset by any suspended passive losses from that
unitholders investment in us, but may not be offset by
that unitholders current or carryover losses from other
passive activities, including those attributable to other
publicly traded partnerships.
The passive loss limitations are applied after other applicable
limitations on deductions, including the at-risk rules and the
basis limitation.
Limitations on Interest Deductions.
The
deductibility of a non-corporate taxpayers
investment interest expense is generally limited to
the amount of that taxpayers net investment
income. Investment interest expense includes:
|
|
|
|
|
interest on indebtedness properly allocable to property held for
investment;
|
|
|
|
our interest expense attributable to portfolio income; and
|
|
|
|
the portion of interest expense incurred to purchase or carry an
interest in a passive activity to the extent attributable to
portfolio income.
|
The computation of a unitholders investment interest
expense will take into account interest on any margin account
borrowing or other loan incurred to purchase or carry a unit.
Net investment income includes gross income from property held
for investment and amounts treated as portfolio income under the
passive loss rules, less deductible expenses, other than
interest, directly connected with the production of investment
16
income, but generally does not include gains attributable to the
disposition of property held for investment or qualified
dividend income. The IRS has indicated that net passive income
earned by a publicly-traded partnership will be treated as
investment income to its unitholders. In addition, the
unitholders share of our portfolio income will be treated
as investment income.
Entity-Level Collections.
If we are
required or elect under applicable law to pay any federal, state
or local income tax on behalf of any unitholder or the general
partner or any former unitholder, we are authorized to pay those
taxes from our funds. That payment, if made, will be treated as
a distribution of cash to the unitholder on whose behalf the
payment was made. If the payment is made on behalf of a
unitholder whose identity cannot be determined, we are
authorized to treat the payment as a distribution to all current
unitholders. We are authorized to amend the partnership
agreement in the manner necessary to maintain uniformity of
intrinsic tax characteristics of units and to adjust later
distributions, so that after giving effect to these
distributions, the priority and characterization of
distributions otherwise applicable under the partnership
agreement is maintained as nearly as is practicable. Payments by
us as described above could give rise to an overpayment of tax
on behalf of a unitholder in which event the unitholder would be
required to file a claim in order to obtain a credit or refund.
Allocation of Income, Gain, Loss and
Deduction.
In general, if we have a net profit,
our items of income, gain, loss and deduction will be allocated
among our general partner and the unitholders in accordance with
their percentage interests in us. At any time that incentive
distributions are made to Spectra Energy Partners (DE) GP, LP,
gross income will be allocated to the recipients to the extent
of these distributions. If we have a net loss, that loss will be
allocated first to our general partner and the unitholders in
accordance with their percentage interests in us to the extent
of their positive capital accounts and, second, to our
non-managing general partner.
Specified items of our income, gain, loss and deduction will be
allocated to account for any difference between the tax basis
and fair market value of our assets at the time of an offering,
referred to in this discussion as the Contributed
Property. The effect of these allocations, referred to as
Section 704(c) Allocations, to a unitholder purchasing
common units from us in an offering will be essentially the same
as if the tax bases of our assets were equal to their fair
market value at the time of such offering, eliminating over time
the difference between a partners book capital
account, credited with the fair market value of Contributed
Property, and tax capital account, credited with the
tax basis of Contributed Property, referred to in this
discussion as the Book-Tax Disparity. In the event
we issue additional common units or engage in certain other
transactions in the future reverse Section 704(c)
Allocations, similar to the Section 704(c)
Allocations described above, will be made to the general partner
and our other unitholders immediately prior to such issuance or
other transactions to account for the difference between the
book basis for purposes of maintaining capital
accounts and the fair market value of all property held by us at
the time of such issuance or future transaction. In addition,
items of recapture income will be allocated to the extent
possible to the unitholder who was allocated the deduction
giving rise to the treatment of that gain as recapture income in
order to minimize the recognition of ordinary income by other
unitholders. Finally, although we do not expect that our
operations will result in the creation of negative capital
accounts, if negative capital accounts nevertheless result,
items of our income and gain will be allocated in an amount and
manner sufficient to eliminate the negative balance as quickly
as possible.
An allocation of items of our income, gain, loss or deduction,
other than an allocation required by the Internal Revenue Code
to eliminate Book-Tax Disparities will generally be given effect
for federal income tax purposes in determining a partners
share of an item of income, gain, loss or deduction only if the
allocation has substantial economic effect. In any other case, a
partners share of an item will be determined on the basis
of his interest in us, which will be determined by taking into
account all the facts and circumstances, including:
|
|
|
|
|
his relative contributions to us;
|
|
|
|
the interests of all the partners in profits and losses;
|
|
|
|
the interest of all the partners in cash flow; and
|
17
|
|
|
|
|
the rights of all the partners to distributions of capital upon
liquidation.
|
Vinson & Elkins L.L.P. is of the opinion that, with
the exception of the issues described in
Section 754 Election and
Disposition of Common Units
Allocations Between Transferors and Transferees,
allocations under our partnership agreement will be given effect
for federal income tax purposes in determining a partners
share of an item of income, gain, loss or deduction.
Treatment of Short Sales.
A unitholder whose
units are loaned to a short seller to cover a short
sale of units may be considered as having disposed of those
units. If so, he would no longer be treated for tax purposes as
a partner with respect to those units during the period of the
loan and may recognize gain or loss from the disposition. As a
result, during this period:
|
|
|
|
|
any of our income, gain, loss or deduction with respect to those
units would not be reportable by the unitholder;
|
|
|
|
any cash distributions received by the unitholder as to those
units would be fully taxable; and
|
|
|
|
all of these distributions would appear to be ordinary income.
|
Vinson & Elkins L.L.P. has not rendered an opinion
regarding the treatment of a unitholder where common units are
loaned to a short seller to cover a short sale of common units;
therefore, unitholders desiring to assure their status as
partners and avoid the risk of gain recognition from a loan to a
short seller should modify any applicable brokerage account
agreements to prohibit their brokers from loaning their units.
The IRS has announced that it is actively studying issues
relating to the tax treatment of short sales of partnership
interests. Please also read Disposition of
Common Units Recognition of Gain or Loss.
Alternative Minimum Tax.
Each unitholder will
be required to take into account his distributive share of any
items of our income, gain, loss or deduction for purposes of the
alternative minimum tax. The current minimum tax rate for
noncorporate taxpayers is 26% on the first $175,000 of
alternative minimum taxable income in excess of the exemption
amount and 28% on any additional alternative minimum taxable
income. Prospective unitholders are urged to consult with their
tax advisors as to the impact of an investment in units on their
liability for the alternative minimum tax.
Tax Rates.
Under current law, the highest
marginal U.S. federal income tax rate applicable to
ordinary income of individuals is 35% and the highest marginal
U.S. federal income tax rate applicable to long-term
capital gains (generally, capital gains on certain assets held
for more than 12 months) of individuals is 15%. However,
absent new legislation extending the current rates, beginning
January 1, 2011, the highest marginal U.S. federal
income tax rate applicable to ordinary income and long-term
capital gains of individuals will increase to 39.6% and 20%,
respectively. Moreover, these rates are subject to change by new
legislation at any time.
Section 754 Election.
We have made the
election permitted by Section 754 of the Internal Revenue
Code. That election is irrevocable without the consent of the
IRS. The election will generally permit us to adjust a common
unit purchasers tax basis in our assets (inside
basis) under Section 743(b) of the Internal Revenue
Code to reflect his purchase price. The Section 743(b)
adjustment does not apply to a person who purchases common units
directly from us and it belongs only to the purchaser and not to
other unitholders. For purposes of this discussion, a
unitholders inside basis in our assets has two components:
(1) his share of our tax basis in our assets (common
basis) and (2) his Section 743(b) adjustment to
that basis.
The timing of deductions attributable to Section 743(b)
adjustments to our common basis will depend upon a number of
factors, including the nature of the assets to which the
adjustment is allocable, the extent to which the adjustment
offsets any Section 704(c) type gain or loss with respect
to an asset and certain elections we make as to the manner in
which we apply Section 704(c) principles with respect to an
asset to which the adjustment is applicable. Please see
Allocation of Income, Gain, Loss and
Deduction. The timing of these deductions may affect the
uniformity of our units. Please see Uniformity
of Units.
Where the remedial allocation method is adopted (which we have
adopted as to property other than certain goodwill properties),
the Treasury Regulations under Section 743 of the Internal
Revenue Code require
18
a portion of the Section 743(b) adjustment that is
attributable to recovery property under Section 168 of the
Internal Revenue Code to be depreciated over the remaining cost
recovery period for the Section 704(c) built-in gain. If we
elect a method other than the remedial method with respect to a
goodwill property, Treasury
Regulation Section 1.197-2(g)(3)
generally requires that the Section 743(b) adjustment
attributable to an amortizable Section 197 intangible,
which includes goodwill property, should be treated as a
newly-acquired asset placed in service in the month when the
purchaser acquires the common unit. Under Treasury
Regulation Section 1.167(c)-l(a)(6),
a Section 743(b) adjustment attributable to property
subject to depreciation under Section 167 of the Internal
Revenue Code, rather than cost recovery deductions under
Section 168, is generally required to be depreciated using
either the straight-line method or the 150% declining balance
method. If we elect a method other than the remedial method, the
depreciation and amortization methods and useful lives
associated with the Section 743(b) adjustment, therefore,
may differ from the methods and useful lives generally used to
depreciate the inside basis in such properties. Under our
partnership agreement, the general partner is authorized to take
a position to preserve the uniformity of units even if that
position is not consistent with these and any other Treasury
Regulations. If we elect a method other than the remedial method
with respect to a goodwill property, the common basis of such
property is not amortizable. Please read Tax
Treatment of Operations Uniformity of Units.
Although Vinson & Elkins L.L.P. is unable to opine as
to the validity of this approach because there is no direct or
indirect controlling authority on this issue, we intend to
depreciate the portion of a Section 743(b) adjustment
attributable to unrealized appreciation in the value of
Contributed Property, to the extent of any unamortized book-tax
disparity, using a rate of depreciation or amortization derived
from the depreciation or amortization method and useful life
applied to the common basis of the property, or treat that
portion as
non-amortizable
to the extent attributable to property the common basis of which
is not amortizable. This method is consistent with the methods
employed by other publicly traded partnerships but is arguably
inconsistent with Treasury
Regulation Section 1.167(c)-1(a)(6),
which is not expected to directly apply to a material portion of
our assets, and Treasury
Regulation Section 1.197-2(g)(3).
To the extent this Section 743(b) adjustment is
attributable to appreciation in value in excess of the
unamortized book-tax disparity, we will apply the rules
described in the Treasury Regulations and legislative history.
If we determine that this position cannot reasonably be taken,
we may take a depreciation or amortization position under which
all purchasers acquiring units in the same month would receive
depreciation or amortization, whether attributable to common
basis or a Section 743(b) adjustment, based upon the same
applicable rate as if they had purchased a direct interest in
our assets. This kind of aggregate approach may result in lower
annual depreciation or amortization deductions than would
otherwise be allowable to some unitholders. Please read
Tax Treatment of Operations
Uniformity of Units. A unitholders tax basis for his
common units is reduced by his share of our deductions (whether
or not such deductions were claimed on an individuals
income tax return) so that any position we take that understates
deductions will overstate the common unitholders basis in
his common units, which may cause the unitholder to understate
gain or overstate loss on any sale of such units. Please read
Disposition of Common Units
Recognition of Gain or Loss. The IRS may challenge our
position with respect to depreciating or amortizing the
Section 743(b) adjustment we take to preserve the
uniformity of the units. If such a challenge were sustained, the
gain from the sale of units might be increased without the
benefit of additional deductions.
A Section 754 election is advantageous if the
transferees tax basis in his units is higher than the
units share of the aggregate tax basis of our assets
immediately prior to the transfer. In that case, as a result of
the election, the transferee would have, among other items, a
greater amount of depreciation and depletion deductions and his
share of any gain or loss on a sale of our assets would be less.
Conversely, a Section 754 election is disadvantageous if
the transferees tax basis in his units is lower than those
units share of the aggregate tax basis of our assets
immediately prior to the transfer. Thus, the fair market value
of the units may be affected either favorably or unfavorably by
the election. A basis adjustment is required regardless of
whether a Section 754 election is made in the case of a
transfer of an interest in us if we have a substantial built-in
loss immediately after the transfer, or if we distribute
property and have a substantial basis reduction. Generally a
built-in loss or a basis reduction is substantial if it exceeds
$250,000.
19
The calculations involved in the Section 754 election are
complex and will be made on the basis of assumptions as to the
value of our assets and other matters. For example, the
allocation of the Section 743(b) adjustment among our
assets must be made in accordance with the Internal Revenue
Code. The IRS could seek to reallocate some or all of any
Section 743(b) adjustment allocated by us to our tangible
assets to goodwill instead. Goodwill, as an intangible asset, is
generally nonamortizable or amortizable over a longer period of
time or under a less accelerated method than our tangible
assets. We cannot assure you that the determinations we make
will not be successfully challenged by the IRS and that the
deductions resulting from them will not be reduced or disallowed
altogether. Should the IRS require a different basis adjustment
to be made, and should, in our opinion, the expense of
compliance exceed the benefit of the election, we may seek
permission from the IRS to revoke our Section 754 election.
If permission is granted, a subsequent purchaser of units may be
allocated more income than he would have been allocated had the
election not been revoked.
Tax
Treatment of Operations
Accounting Method and Taxable Year.
We use the
year ending December 31 as our taxable year and the accrual
method of accounting for federal income tax purposes. Each
unitholder will be required to include in income his share of
our income, gain, loss and deduction for our taxable year ending
within or with his taxable year. In addition, a unitholder who
has a taxable year ending on a date other than December 31 and
who disposes of all of his units following the close of our
taxable year but before the close of his taxable year must
include his share of our income, gain, loss and deduction in
income for his taxable year, with the result that he will be
required to include in income for his taxable year his share of
more than one year of our income, gain, loss and deduction.
Please read Disposition of Common
Units Allocations Between Transferors and
Transferees.
Initial Tax Basis, Depreciation and
Amortization.
The tax basis of our assets will be
used for purposes of computing depreciation and cost recovery
deductions and, ultimately, gain or loss on the disposition of
these assets. The federal income tax burden associated with the
difference between the fair market value of our assets and their
tax basis immediately prior to this offering will be borne by
the general partner, its affiliates and our other unitholders.
Please read Tax Consequences of Unit
Ownership Allocation of Income, Gain, Loss and
Deduction.
To the extent allowable, we may elect to use the depreciation
and cost recovery methods that will result in the largest
deductions being taken in the early years after assets are
placed in service. Because our general partner may determine not
to adopt the remedial method of allocation with respect to any
difference between the tax basis and the fair market value of
goodwill immediately prior to this or any future offering, we
may not be entitled to any amortization deductions with respect
to any goodwill conveyed to us on formation or held by us at the
time of any future offering. Please read
Uniformity of Units. Property we
subsequently acquire or construct may be depreciated using
accelerated methods permitted by the Internal Revenue Code.
If we dispose of depreciable property by sale, foreclosure, or
otherwise, all or a portion of any gain, determined by reference
to the amount of depreciation previously deducted and the nature
of the property, may be subject to the recapture rules and taxed
as ordinary income rather than capital gain. Similarly, a
partner who has taken cost recovery or depreciation deductions
with respect to property we own will likely be required to
recapture some or all of those deductions as ordinary income
upon a sale of his interest in us. Please read
Tax Consequences of Unit Ownership
Allocation of Income, Gain, Loss and Deduction and
Disposition of Common Units
Recognition of Gain or Loss.
The costs incurred in selling our units (called
syndication expenses) must be capitalized and cannot
be deducted currently, ratably or upon our termination. There
are uncertainties regarding the classification of costs as
organization expenses, which we may amortize, and as syndication
expenses, which we may not amortize. The underwriting discounts
and commissions we incur will be treated as syndication expenses.
Valuation and Tax Basis of Our Properties.
The
federal income tax consequences of the ownership and disposition
of units will depend in part on our estimates of the relative
fair market values, and the initial tax bases, of our assets.
Although we may from time to time consult with professional
appraisers regarding valuation matters, we will make many of the
relative fair market value estimates ourselves. These estimates
20
and determinations of basis are subject to challenge and will
not be binding on the IRS or the courts. If the estimates of
fair market value or basis are later found to be incorrect, the
character and amount of items of income, gain, loss or
deductions previously reported by unitholders might change, and
unitholders might be required to adjust their tax liability for
prior years and incur interest and penalties with respect to
those adjustments.
Disposition
of Common Units
Recognition of Gain or Loss.
Gain or loss will
be recognized on a sale of units equal to the difference between
the amount realized and the unitholders tax basis for the
units sold. A unitholders amount realized will be measured
by the sum of the cash or the fair market value of other
property he receives plus his share of our nonrecourse
liabilities. Because the amount realized includes a
unitholders share of our nonrecourse liabilities, the gain
recognized on the sale of units could result in a tax liability
in excess of any cash received from the sale.
Prior distributions from us in excess of cumulative net taxable
income for a common unit that decreased a unitholders tax
basis in that common unit will, in effect, become taxable income
if the common unit is sold at a price greater than the
unitholders tax basis in that common unit, even if the
price received is less than his original cost.
Except as noted below, gain or loss recognized by a unitholder,
other than a dealer in units, on the sale or
exchange of a unit held for more than one year will generally be
taxable as capital gain or loss. Capital gain recognized by an
individual on the sale of units held more than twelve months
will generally be taxed at a maximum rate of 15% through
December 31, 2010 and 20% thereafter (absent new
legislation extending or adjusting the current rate). However, a
portion of this gain or loss, which will likely be substantial,
however, will be separately computed and taxed as ordinary
income or loss under Section 751 of the Internal Revenue
Code to the extent attributable to assets giving rise to
depreciation recapture or other unrealized
receivables or to inventory items we own. The
term unrealized receivables includes potential
recapture items, including depreciation recapture. Ordinary
income attributable to unrealized receivables, inventory items
and depreciation recapture may exceed net taxable gain realized
upon the sale of a unit and may be recognized even if there is a
net taxable loss realized on the sale of a unit. Thus, a
unitholder may recognize both ordinary income and a capital loss
upon a sale of units. Net capital loss may offset capital gains
and no more than $3,000 of ordinary income, in the case of
individuals, and may only be used to offset capital gain in the
case of corporations.
The IRS has ruled that a partner who acquires interests in a
partnership in separate transactions must combine those
interests and maintain a single adjusted tax basis for all those
interests. Upon a sale or other disposition of less than all of
those interests, a portion of that tax basis must be allocated
to the interests sold using an equitable
apportionment method, which generally means that the tax
basis allocated to the interest sold equals an amount that bears
the same relation to the partners tax basis in his entire
interest in the partnership as the value of the interest sold
bears to the value of the partners entire interest in the
partnership. Treasury Regulations under Section 1223 of the
Internal Revenue Code allow a selling unitholder who can
identify common units transferred with an ascertainable holding
period to elect to use the actual holding period of the common
units transferred. Thus, according to the ruling, a common
unitholder will be unable to select high or low basis common
units to sell as would be the case with corporate stock, but,
according to the Treasury Regulations, may designate specific
common units sold for purposes of determining the holding period
of units transferred. A unitholder electing to use the actual
holding period of common units transferred must consistently use
that identification method for all subsequent sales or exchanges
of common units. A unitholder considering the purchase of
additional units or a sale of common units purchased in separate
transactions is urged to consult his tax advisor as to the
possible consequences of this ruling and application of the
Treasury Regulations.
Specific provisions of the Internal Revenue Code affect the
taxation of some financial products and securities, including
partnership interests, by treating a taxpayer as having sold an
appreciated partnership
21
interest, one in which gain would be recognized if it were sold,
assigned or terminated at its fair market value, if the taxpayer
or related persons enter(s) into:
|
|
|
|
|
a short sale;
|
|
|
|
an offsetting notional principal contract; or
|
|
|
|
a futures or forward contract with respect to the partnership
interest or substantially identical property.
|
Moreover, if a taxpayer has previously entered into a short
sale, an offsetting notional principal contract or a futures or
forward contract with respect to the partnership interest, the
taxpayer will be treated as having sold that position if the
taxpayer or a related person then acquires the partnership
interest or substantially identical property. The Secretary of
the Treasury is also authorized to issue regulations that treat
a taxpayer that enters into transactions or positions that have
substantially the same effect as the preceding transactions as
having constructively sold the financial position.
Allocations Between Transferors and
Transferees.
In general, our taxable income and
losses will be determined annually, will be prorated on a
monthly basis and will be subsequently apportioned among the
unitholders in proportion to the number of units owned by each
of them as of the opening of the applicable exchange on the
first business day of the month (the Allocation
Date). However, gain or loss realized on a sale or other
disposition of our assets other than in the ordinary course of
business will be allocated among the unitholders on the
Allocation Date in the month in which that gain or loss is
recognized. As a result, a unitholder transferring units may be
allocated income, gain, loss and deduction realized after the
date of transfer.
Although simplifying conventions are contemplated by the
Internal Revenue Code and most publicly traded partnerships use
similar simplifying conventions, the use of this method may not
be permitted under existing Treasury Regulations. Accordingly,
Vinson & Elkins L.L.P. is unable to opine on the
validity of this method of allocating income and deductions
between transferor and transferee unitholders. If this method is
not allowed under the Treasury Regulations, or only applies to
transfers of less than all of the unitholders interest,
our taxable income or losses might be reallocated among the
unitholders. We are authorized to revise our method of
allocation between transferor and transferee unitholders, as
well as unitholders whose interests vary during a taxable year,
to conform to a method permitted under future Treasury
Regulations.
A unitholder who owns units at any time during a quarter and who
disposes of them prior to the record date set for a cash
distribution for that quarter will be allocated items of our
income, gain, loss and deductions attributable to that quarter
but will not be entitled to receive that cash distribution.
Notification Requirements.
A unitholder who
sells any of his units is generally required to notify us in
writing of that sale within 30 days after the sale (or, if
earlier, January 15 of the year following the sale). A purchaser
of units who purchases units from another unitholder is also
generally required to notify us in writing of that purchase
within 30 days after the purchase. Upon receiving such
notifications, we are required to notify the IRS of that
transaction and to furnish specified information to the
transferor and transferee. Failure to notify us of a purchase
may, in some cases, lead to the imposition of penalties.
However, these reporting requirements do not apply to a sale by
an individual who is a citizen of the United States and who
effects the sale or exchange through a broker who will satisfy
such requirements.
Constructive Termination.
We will be
considered to have been terminated for tax purposes if there is
a sale or exchange of 50% or more of the total interests in our
capital and profits within a twelve-month period. For purposes
of measuring whether the 50% threshold has been reached,
multiple sales of the same interest are counted only once. A
constructive termination results in the closing of our taxable
year for all unitholders. In the case of a unitholder reporting
on a taxable year other than a fiscal year ending
December 31, the closing of our taxable year may result in
more than twelve months of our taxable income or loss being
includable in his taxable income for the year of termination. A
constructive termination occurring on a date other than December
31 will result in us filing two tax returns (and unitholders
receiving two Schedules K-1) for one fiscal year and the cost of
the preparation of these returns will be borne by all common
unitholders. We would be required to make new tax elections
after a termination, including a new election under
22
Section 754 of the Internal Revenue Code, and a termination
would result in a deferral of our deductions for depreciation. A
termination could also result in penalties if we were unable to
determine that the termination had occurred. Moreover, a
termination might either accelerate the application of, or
subject us to, any tax legislation enacted before the
termination.
Uniformity
of Units
Because we cannot match transferors and transferees of units, we
must maintain uniformity of the economic and tax characteristics
of the units to a purchaser of these units. In the absence of
uniformity, we may be unable to completely comply with a number
of federal income tax requirements, both statutory and
regulatory. A lack of uniformity can result from a literal
application of Treasury
Regulation Section 1.167(c)-1(a)(6)
and Treasury
Regulation Section 1.197-2(g)(3).
Any non-uniformity could have a negative impact on the value of
the units. Please read Tax Consequences of
Unit Ownership Section 754 Election.
We intend to depreciate the portion of a Section 743(b)
adjustment attributable to unrealized appreciation in the value
of Contributed Property, to the extent of any unamortized
book-tax disparity, using a rate of depreciation or amortization
derived from the depreciation or amortization method and useful
life applied to the common basis of that property, or treat that
portion as nonamortizable, to the extent attributable to
property the common basis of which is not amortizable,
consistent with the regulations under Section 743 of the
Internal Revenue Code, even though that position may be
inconsistent with Treasury
Regulation Section 1.167(c)-1(a)(6)
which is not expected to directly apply to a material portion of
our assets, and Treasury
Regulation Section 1.197-2(g)(3).
Please read Tax Consequences of Unit
Ownership Section 754 Election. To the
extent that the Section 743(b) adjustment is attributable
to appreciation in value in excess of the unamortized book-tax
disparity, we will apply the rules described in the Treasury
Regulations and legislative history. If we determine that this
position cannot reasonably be taken, we may adopt a depreciation
and amortization position under which all purchasers acquiring
units in the same month would receive depreciation and
amortization deductions, whether attributable to a common basis
or Section 743(b) adjustment, based upon the same
applicable rate as if they had purchased a direct interest in
our property. If this position is adopted, it may result in
lower annual depreciation and amortization deductions than would
otherwise be allowable to some unitholders and risk the loss of
depreciation and amortization deductions not taken in the year
that these deductions are otherwise allowable. This position
will not be adopted if we determine that the loss of
depreciation and amortization deductions will have a material
adverse effect on the unitholders. If we choose not to utilize
this aggregate method, we may use any other reasonable
depreciation and amortization method to preserve the uniformity
of the intrinsic tax characteristics of any units that would not
have a material adverse effect on the unitholders. The IRS may
challenge any method of depreciating the Section 743(b)
adjustment described in this paragraph. If this challenge were
sustained, the uniformity of units might be affected, and the
gain from the sale of units might be increased without the
benefit of additional deductions. Please read
Disposition of Common Units
Recognition of Gain or Loss.
Tax-Exempt
Organizations and Other Investors
Ownership of units by employee benefit plans, other tax-exempt
organizations, non-resident aliens, foreign corporations, and
other foreign persons raises issues unique to those investors
and, as described below, may have substantially adverse tax
consequences to them. If you are a tax-exempt entity or a
non-U.S. person,
you should consult your tax advisor before investing in our
common units.
Employee benefit plans and most other organizations exempt from
federal income tax, including individual retirement accounts and
other retirement plans, are subject to federal income tax on
unrelated business taxable income. Virtually all of our income
allocated to a unitholder which is a tax-exempt organization
will be unrelated business taxable income and will be taxable to
them.
Non-resident aliens and foreign corporations, trusts or estates
that own units will be considered to be engaged in business in
the United States because of the ownership of units. As a
consequence they will be required to file federal tax returns to
report their share of our income, gain, loss or deduction and
pay federal
23
income tax at regular rates on their share of our net income or
gain. Under rules applicable to publicly traded partnerships, we
will withhold tax, at the highest effective applicable rate,
from cash distributions made quarterly to foreign unitholders.
Each foreign unitholder must obtain a taxpayer identification
number from the IRS and submit that number to our transfer agent
on a
Form W-8
or applicable substitute form in order to obtain credit for
these withholding taxes. A change in applicable law may require
us to change these procedures.
In addition, because a foreign corporation that owns units will
be treated as engaged in a United States trade or business, that
corporation may be subject to the United States branch profits
tax at a rate of 30%, in addition to regular federal income tax,
on its share of our income and gain, as adjusted for changes in
the foreign corporations U.S. net equity,
which is effectively connected with the conduct of a United
States trade or business. That tax may be reduced or eliminated
by an income tax treaty between the United States and the
country in which the foreign corporate unitholder is a
qualified resident. In addition, this type of
unitholder is subject to special information reporting
requirements under Section 6038C of the Internal Revenue
Code.
A foreign unitholder who sells or otherwise disposes of a common
unit will be subject to U.S. federal income tax on gain
realized from the sale or disposition of that unit to the extent
the gain is effectively connected with a U.S. trade or
business of the foreign unitholder. Under a ruling published by
the IRS, interpreting the scope of effectively connected
income, a foreign unitholder would be considered to be
engaged in a trade or business in the U.S. by virtue of the
U.S. activities of the partnership, and part or all of that
unitholders gain would be effectively connected with that
unitholders indirect U.S. trade or business.
Moreover, under the Foreign Investment in Real Property Tax Act,
a foreign common unitholder generally will be subject to
U.S. federal income tax upon the sale or disposition of a
common unit if (i) he owned (directly or constructively
applying certain attribution rules) more than 5% of our common
units at any time during the five-year period ending on the date
of such disposition and (ii) 50% or more of the fair market
value of all of our assets consisted of U.S. real property
interests at any time during the shorter of the period during
which such unitholder held the common units or the
5-year
period ending on the date of disposition. Currently, more than
50% of our assets consist of U.S. real property interests
and we do not expect that to change in the foreseeable future.
Therefore, foreign unitholders may be subject to federal income
tax on gain from the sale or disposition of their units.
Administrative
Matters
Information Returns and Audit Procedures.
We
intend to furnish to each unitholder, within 90 days after
the close of each calendar year, specific tax information,
including a
Schedule K-1,
which describes his share of our income, gain, loss and
deduction for our preceding taxable year. In preparing this
information, which will not be reviewed by counsel, we will take
various accounting and reporting positions, some of which have
been mentioned earlier, to determine his share of income, gain,
loss and deduction. We cannot assure you that those positions
will yield a result that conforms to the requirements of the
Internal Revenue Code, Treasury Regulations or administrative
interpretations of the IRS. Neither we nor counsel can assure
prospective unitholders that the IRS will not successfully
contend in court that those positions are impermissible. Any
challenge by the IRS could negatively affect the value of the
units.
The IRS may audit our federal income tax information returns.
Adjustments resulting from an IRS audit may require each
unitholder to adjust a prior years tax liability, and
possibly may result in an audit of his own return. Any audit of
a unitholders return could result in adjustments not
related to our returns as well as those related to our returns.
Partnerships generally are treated as separate entities for
purposes of federal tax audits, judicial review of
administrative adjustments by the IRS and tax settlement
proceedings. The tax treatment of partnership items of income,
gain, loss and deduction are determined in a partnership
proceeding rather than in separate proceedings with the
partners. The Internal Revenue Code requires that one partner be
designated as the Tax Matters Partner for these
purposes. The partnership agreement names the general partner as
our Tax Matters Partner.
24
The Tax Matters Partner will make some elections on our behalf
and on behalf of unitholders. In addition, the Tax Matters
Partner can extend the statute of limitations for assessment of
tax deficiencies against unitholders for items in our returns.
The Tax Matters Partner may bind a unitholder with less than a
1% profits interest in us to a settlement with the IRS unless
that unitholder elects, by filing a statement with the IRS, not
to give that authority to the Tax Matters Partner. The Tax
Matters Partner may seek judicial review, by which all the
unitholders are bound, of a final partnership administrative
adjustment and, if the Tax Matters Partner fails to seek
judicial review, judicial review may be sought by any unitholder
having at least a 1% interest in profits or by any group of
unitholders having in the aggregate at least a 5% interest in
profits. However, only one action for judicial review will go
forward, and each unitholder with an interest in the outcome may
participate.
A unitholder must file a statement with the IRS identifying the
treatment of any item on his federal income tax return that is
not consistent with the treatment of the item on our return.
Intentional or negligent disregard of this consistency
requirement may subject a unitholder to substantial penalties.
Nominee Reporting.
Persons who hold an
interest in us as a nominee for another person are required to
furnish to us:
(a) the name, address and taxpayer identification number of
the beneficial owner and the nominee;
(b) whether the beneficial owner is
(1) a person that is not a United States person,
(2) a foreign government, an international organization or
any wholly owned agency or instrumentality of either of the
foregoing, or
(3) a tax-exempt entity;
(c) the amount and description of units held, acquired or
transferred for the beneficial owner; and
(d) specific information including the dates of
acquisitions and transfers, means of acquisitions and transfers,
and acquisition cost for purchases, as well as the amount of net
proceeds from sales.
Brokers and financial institutions are required to furnish
additional information, including whether they are United States
persons and specific information on units they acquire, hold or
transfer for their own account. A penalty of $50 per failure, up
to a maximum of $100,000 per calendar year, is imposed by the
Internal Revenue Code for failure to report that information to
us. The nominee is required to supply the beneficial owner of
the units with the information furnished to us.
Accuracy-Related Penalties.
An additional tax
equal to 20% of the amount of any portion of an underpayment of
tax that is attributable to one or more specified causes,
including negligence or disregard of rules or regulations,
substantial understatements of income tax and substantial
valuation misstatements, is imposed by the Internal Revenue
Code. No penalty will be imposed, however, for any portion of an
underpayment if it is shown that there was a reasonable cause
for that portion and that the taxpayer acted in good faith
regarding that portion.
For individuals a substantial understatement of income tax in
any taxable year exists if the amount of the understatement
exceeds the greater of 10% of the tax required to be shown on
the return for the taxable year or $5,000. The amount of any
understatement subject to penalty generally is reduced if any
portion is attributable to a position adopted on the return:
(1) for which there is, or was, substantial
authority, or
(2) as to which there is a reasonable basis and the
relevant facts of that position are disclosed on the return.
If any item of income, gain, loss or deduction included in the
distributive shares of unitholders might result in that kind of
an understatement of income for which no
substantial authority exists but for which a
reasonable basis for the tax treatment of such item exists, we
must disclose the relevant facts on our return.
25
In such a case, we will make a reasonable effort to furnish
sufficient information for unitholders to make adequate
disclosure on their returns and to take other actions as may be
appropriate to permit unitholders to avoid liability for this
penalty. More stringent rules apply to tax shelters,
a term that in this context does not appear to include us.
A substantial valuation misstatement exists if the value of any
property, or the adjusted basis of any property, claimed on a
tax return is 150% or more of the amount determined to be the
correct amount of the valuation or adjusted basis. No penalty is
imposed unless the portion of the underpayment attributable to a
substantial valuation misstatement exceeds $5,000 ($10,000 for
most corporations). If the valuation claimed on a return is 200%
or more than the correct valuation, the penalty imposed
increases to 40%. We do not anticipate making any valuation
misstatements.
Reportable Transactions.
If we were to engage
in a reportable transaction, we (and possibly you
and others) would be required to make a detailed disclosure of
the transaction to the IRS. A transaction may be a reportable
transaction based upon any of several factors, including the
fact that it is a type of tax avoidance transaction publicly
identified by the IRS as a listed transaction or
that it produces certain kinds of losses for partnerships,
individuals, S corporations, and trusts in excess of
$2 million in any single year, or $4 million in any
combination of 6 successive tax years. Our participation in a
reportable transaction could increase the likelihood that our
federal income tax information return (and possibly your tax
return) would be audited by the IRS. Please read
Information Returns and Audit Procedures.
Moreover, if we were to participate in a reportable transaction
with a significant purpose to avoid or evade tax, or in any
listed transaction, you may be subject to the following
provisions of the American Jobs Creation Act of 2004:
|
|
|
|
|
accuracy-related penalties with a broader scope, significantly
narrower exceptions, and potentially greater amounts than
described above at Accuracy-Related
Penalties,
|
|
|
|
for those persons otherwise entitled to deduct interest on
federal tax deficiencies, nondeductibility of interest on any
resulting tax liability and
|
|
|
|
in the case of a listed transaction, an extended statute of
limitations.
|
We do not expect to engage in any reportable
transactions.
State,
Local and Other Tax Considerations
In addition to federal income taxes, you likely will be subject
to other taxes, including state and local income taxes,
unincorporated business taxes, and estate, inheritance or
intangible taxes that may be imposed by the various
jurisdictions in which we do business or own property or in
which you are a resident. We will initially own property or
conduct business in the States of Alabama, Florida, Georgia,
Louisiana, Mississippi, North Carolina, Tennessee, Texas and
Virginia. Each of these states other than Texas and Florida
currently imposes a personal income tax on individuals. A
majority of these states impose an income tax on corporations
and other entities. We may also own property or conduct business
in other jurisdictions that impose an income tax in the future.
Although an analysis of those various taxes is not presented
here, each prospective unitholder is urged to consider their
potential impact on his investment in us. You may not be
required to file a return and pay taxes in some states because
your income from that state falls below the filing and payment
requirement. You will be required, however, to file state income
tax returns and to pay state income taxes in many of the states
in which we do business or own property, and you may be subject
to penalties for failure to comply with those requirements. In
some states, tax losses may not produce a tax benefit in the
year incurred and also may not be available to offset income in
subsequent taxable years. Some of the states may require us, or
we may elect, to withhold a percentage of income from amounts to
be distributed to a unitholder who is not a resident of the
state. Withholding, the amount of which may be greater or less
than a particular unitholders income tax liability to the
state, generally does not relieve a non-resident unitholder from
the obligation to file an income tax return. Amounts withheld
may be treated as if distributed to unitholders for purposes of
determining the amounts distributed by us. Please read
Tax Consequences of Unit Ownership
Entity-
26
Level Collections. Based on current law and our
estimate of our future operations, the general partner
anticipates that any amounts required to be withheld will not be
material.
It is the responsibility of each unitholder to investigate the
legal and tax consequences, under the laws of pertinent states
and localities, of his investment in us. Vinson &
Elkins L.L.P. has not rendered an opinion on the state or local
tax consequences of an investment in us. We strongly recommend
that each prospective unitholder consult, and depend upon, his
own tax counsel or other advisor with regard to those matters.
It is the responsibility of each unitholder to file all state
and local, as well as United States federal tax returns that may
be required of him.
Tax
Consequences of Ownership of Debt Securities
A description of the material federal income tax consequences of
the acquisition, ownership and disposition of any debt
securities will be set forth on the prospectus supplement
relating to the offering of such debt securities.
PLAN OF
DISTRIBUTION
We may sell securities described in this prospectus and any
accompanying prospectus supplement to one or more underwriters
for public offering and sale, and we also may sell securities to
investors directly or through one or more broker-dealers or
agents.
We will prepare a prospectus supplement for each offering that
will disclose the terms of the offering, including the name or
names of any underwriters, dealers or agents, the purchase price
of the securities and the proceeds to us from the sale, any
underwriting discounts and other items constituting compensation
to underwriters, dealers or agents.
We will fix a price or prices of our securities at:
|
|
|
|
|
market prices prevailing at the time of any sale under this
registration statement;
|
|
|
|
prices related to market prices; or
|
|
|
|
negotiated prices.
|
We may change the price of the securities offered from time to
time.
If we use underwriters or dealers in the sale, they will acquire
the securities for their own account and they may resell these
securities from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The
securities may be offered to the public either through
underwriting syndicates represented by one or more managing
underwriters or directly by one or more of such firms. Unless
otherwise disclosed in the prospectus supplement, the
obligations of the underwriters to purchase securities will be
subject to certain conditions precedent, and the underwriters
will be obligated to purchase all of the securities offered by
the prospectus supplement if any are purchased. Any initial
public offering price and any discounts or concessions allowed
or reallowed or paid to dealers may be changed from time to time.
If a prospectus supplement so indicates, the underwriters may,
pursuant to Regulation M under the Securities Exchange Act
of 1934, engage in transactions, including stabilization bids or
the imposition of penalty bids, that may have the effect of
stabilizing or maintaining the market price of the securities at
a level above that which might otherwise prevail in the open
market.
We may sell the securities directly or through agents designated
by us from time to time. We will name any agent involved in the
offering and sale of the securities for which this prospectus is
delivered, and disclose any commissions payable by us to the
agent or the method by which the commissions can be determined,
in the prospectus supplement. Unless otherwise indicated in the
prospectus supplement, any agent will be acting on a best
efforts basis for the period of its appointment.
27
We may agree to indemnify underwriters, dealers and agents who
participate in the distribution of securities against certain
liabilities to which they may become subject in connection with
the sale of the securities, including liabilities arising under
the Securities Act of 1933.
Certain of the underwriters and their affiliates may be
customers of, may engage in transactions with and may perform
services for us or our affiliates in the ordinary course of
business.
A prospectus and accompanying prospectus supplement in
electronic form may be made available on the web sites
maintained by the underwriters. The underwriters may agree to
allocate a number of securities for sale to their online
brokerage account holders. Such allocations of securities for
internet distributions will be made on the same basis as other
allocations. In addition, securities may be sold by the
underwriters to securities dealers who resell securities to
online brokerage account holders.
LEGAL
MATTERS
Vinson & Elkins L.L.P. will pass upon the validity of
the securities offered in this registration statement. If
certain legal matters in connection with an offering of the
securities made by this prospectus and a related prospectus
supplement are passed on by counsel for the underwriters of such
offering, that counsel will be named in the applicable
prospectus supplement related to that offering.
EXPERTS
The consolidated financial statements of Spectra Energy
Partners, LP and subsidiaries and the related financial
statement schedule, incorporated in this prospectus by reference
from the Spectra Energy Partners, LP Annual Report on
Form 10-K
for the year ended December 31, 2008, and the effectiveness
of Spectra Energy Partners, LPs internal control over
financial reporting have been audited by Deloitte &
Touche LLP, an independent registered public accounting firm, as
stated in their report, which is incorporated herein by
reference (which report (1) expresses an unqualified
opinion on the consolidated financial statements and financial
statement schedule and includes explanatory paragraphs referring
to the preparation of the portions of the Spectra Energy
Partners, LP consolidated financial statements attributable to
operations contributed by or purchased from Spectra Energy Corp
from the separate records maintained by Spectra Energy Capital,
LLC, and (2) expresses an unqualified opinion on the
effectiveness of internal control over financial reporting).
Such financial statements and financial statement schedule have
been so incorporated in reliance upon the report of such firm
given upon their authority as experts in accounting and auditing.
28
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
|
Item 14.
|
Other
Expenses of Issuance and Distribution.
|
Set forth below are the expenses (other than underwriting
discounts and commissions) expected to be incurred in connection
with the issuance and distribution of the securities registered
hereby. With the exception of the Securities and Exchange
Commission registration fee, the amounts set forth below are
estimates.
|
|
|
|
|
Securities and Exchange Commission registration fee
|
|
$
|
83,700
|
|
Legal fees and expenses
|
|
|
50,000
|
|
Accounting fees and expenses
|
|
|
20,000
|
|
Printing expenses
|
|
|
5,000
|
|
Trustee fees and expenses
|
|
|
5,000
|
|
Miscellaneous
|
|
|
1,300
|
|
|
|
|
|
|
TOTAL
|
|
$
|
165,000
|
|
|
|
|
|
|
|
|
Item 15.
|
Indemnification
of Directors and Officers.
|
Section 17-108
of the Delaware Revised Limited Partnership Act empowers a
Delaware limited partnership to indemnify and hold harmless any
partner or other person from and against all claims and demands
whatsoever. Under our partnership agreement, in most
circumstances, we will indemnify the following persons, to the
fullest extent permitted by law, from and against all losses,
claims, damages or similar events:
|
|
|
|
|
our general partner;
|
|
|
|
any departing general partner;
|
|
|
|
any person who is or was an affiliate of our general partner or
any departing general partner;
|
|
|
|
any person who is or was a director, officer, member, partner,
fiduciary or trustee of any entity set forth in the preceding
three bullet points;
|
|
|
|
any person who is or was serving as director, officer, member,
partner, fiduciary or trustee of another person at the request
of our general partner or any departing general partner; and
|
|
|
|
any person designated by our general partner.
|
Any indemnification under these provisions will only be out of
our assets. Unless it otherwise agrees, our general partner will
not be personally liable for, or have any obligation to
contribute or lend funds or assets to us to enable us to
effectuate, indemnification. We may purchase insurance against
liabilities asserted against and expenses incurred by persons
for our activities, regardless of whether we would have the
power to indemnify the person against liabilities under our
partnership agreement.
|
|
|
|
|
|
|
Exhibit
|
|
|
|
|
Number
|
|
|
|
Description
|
|
|
**1
|
.1
|
|
|
|
Form of Underwriting Agreement.
|
|
*4
|
.1
|
|
|
|
Form of Senior Indenture for Senior Debt Securities of Spectra
Energy Partners, LP.
|
|
*4
|
.2
|
|
|
|
Form of Subordinated Indenture for Subordinated Debt Securities
of Spectra Energy Partners, LP.
|
|
**4
|
.3
|
|
|
|
Form of Senior Debt Securities of Spectra Energy Partners, LP.
|
|
**4
|
.4
|
|
|
|
Form of Subordinated Debt Securities of Spectra Energy Partners,
LP.
|
|
*5
|
.1
|
|
|
|
Opinion of Vinson & Elkins L.L.P. as to the legality of the
securities being registered.
|
|
*8
|
.1
|
|
|
|
Opinion of Vinson & Elkins L.L.P. as to tax matters.
|
II-1
|
|
|
|
|
|
|
Exhibit
|
|
|
|
|
Number
|
|
|
|
Description
|
|
|
12
|
.1
|
|
|
|
Ratio of earnings to fixed charges (incorporated by reference to
Exhibit 12.1 to the Spectra Energy Partners, LP annual report on
Form 10-K filed on March 11, 2009).
|
|
*23
|
.1
|
|
|
|
Consent of Deloitte & Touche LLP.
|
|
*23
|
.2
|
|
|
|
Consent of Vinson & Elkins L.L.P. (contained in Exhibits
5.1 and 8.1).
|
|
*24
|
.1
|
|
|
|
Powers of Attorney for Officers and Directors of Spectra Energy
Partners GP, LLC
|
|
*25
|
.1
|
|
|
|
Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of the Trustee under the Senior
Indenture for Senior Debt Securities of Spectra Energy Partners,
LP.
|
|
*25
|
.2
|
|
|
|
Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of the Trustee under the
Subordinated Indenture for Subordinated Debt Securities of
Spectra Energy Partners, LP.
|
|
|
|
*
|
|
Filed herewith
|
|
**
|
|
To be filed as an Exhibit to a Current Report on
Form 8-K
or in a post-effective amendment to this registration statement
|
Each undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of a
prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering
price set forth in the Calculation of Registration
Fee table in the effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the SEC by the
registrants pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the
registration statement;
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
II-2
(4) That, for the purpose of determining liability under
the Securities Act to any purchaser:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
section 10(a) of the Securities Act shall be deemed to be
part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(5) That, for the purpose of determining liability of any
registrant under the Securities Act to any purchaser in the
initial distribution of the securities, each undersigned
registrant undertakes that in a primary offering of securities
of such registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following
communications, such registrant will be a seller to the
purchaser and will be considered to offer or sell such
securities to such purchaser:
(a) Any preliminary prospectus or prospectus of any
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(b) Any free writing prospectus relating to the offering
prepared by or on behalf of any undersigned registrant or used
or referred to by the undersigned registrant;
(c) The portion of any other free writing prospectus
relating to the offering containing material information about
any undersigned registrant or its securities provided by or on
behalf of such registrant; and
(d) Any other communication that is an offer in the
offering made by any undersigned registrant to the purchaser.
Each undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the registrants annual report pursuant to
Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans annual report pursuant to
Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of any registrant pursuant to
the foregoing provisions, or otherwise, each registrant has been
advised that in the opinion of the SEC such indemnification is
against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the
successful defense of any action, suit or
II-3
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, such
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
Each undersigned registrant hereby undertakes:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus or any prospectus supplement filed as part of this
registration statement in reliance on Rule 430A and
contained in a form of prospectus or prospectus supplement filed
by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to
be part of this registration statement as of the time it was
declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus or prospectus supplement shall be deemed to
be a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
Each undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the trustee under each of its indentures to act under
subsection (a) of Section 310 of the
Trust Indenture Act of 1939, as amended (the
Act) in accordance with the rules and regulations
prescribed by the SEC under section 305(b)(2) of the Act.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Houston, State of Texas, on March 18, 2009.
SPECTRA ENERGY PARTNERS, LP
|
|
|
|
By:
|
Spectra Energy Partners (DE) GP, LP
,
|
its General Partner
|
|
|
|
By:
|
Spectra Energy Partners GP, LLC
,
|
its General Partner
Name: Gregory J. Rizzo
|
|
|
|
Title:
|
President and Chief Executive Officer
|
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following officers
and directors of Spectra Energy Partners GP, LLC, as general
partner of Spectra Energy Partners (DE) GP, LP, as general
partner of Spectra Energy Partners, LP, the registrant, in the
capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Gregory
J. Rizzo
Gregory
J. Rizzo
|
|
President, Chief Executive Officer and Director (Principal
Executive Officer)
|
|
March 18, 2009
|
|
|
|
|
|
*
Laura
Buss Sayavedra
|
|
Vice President and Chief Financial Officer (Principal Accounting
and Financial Officer)
|
|
March 18, 2009
|
|
|
|
|
|
*
Fred
J. Fowler
|
|
Chairman of the Board
|
|
March 18, 2009
|
|
|
|
|
|
*
Steven
D. Arnold
|
|
Director
|
|
March 18, 2009
|
|
|
|
|
|
*
Stewart
A. Bliss
|
|
Director
|
|
March 18, 2009
|
|
|
|
|
|
*
Nora
M. Brownell
|
|
Director
|
|
March 18, 2009
|
|
|
|
|
|
*
Patrick
J. Hester
|
|
Director
|
|
March 18, 2009
|
|
|
|
|
|
*
Mark
Fiedorek
|
|
Director
|
|
March 18, 2009
|
|
|
|
|
|
/s/ Gregory
J. Rizzo
*
By: Gregory J. Rizzo, as attorney-in-fact
|
|
|
|
|
II-5
INDEX TO
EXHIBITS
|
|
|
|
|
|
|
Exhibit
|
|
|
|
|
Number
|
|
|
|
Description
|
|
|
**1
|
.1
|
|
|
|
Form of Underwriting Agreement.
|
|
*4
|
.1
|
|
|
|
Form of Senior Indenture for Senior Debt Securities of Spectra
Energy Partners, LP.
|
|
*4
|
.2
|
|
|
|
Form of Subordinated Indenture for Subordinated Debt Securities
of Spectra Energy Partners, LP.
|
|
**4
|
.3
|
|
|
|
Form of Senior Debt Securities of Spectra Energy Partners, LP.
|
|
**4
|
.4
|
|
|
|
Form of Subordinated Debt Securities of Spectra Energy Partners,
LP.
|
|
*5
|
.1
|
|
|
|
Opinion of Vinson & Elkins L.L.P. as to the legality of the
securities being registered.
|
|
*8
|
.1
|
|
|
|
Opinion of Vinson & Elkins L.L.P. as to tax matters.
|
|
12
|
.1
|
|
|
|
Ratio of earnings to fixed charges (incorporated by reference to
Exhibit 12.1 to the Spectra Energy Partners, LP annual report on
Form 10-K filed on March 11, 2009).
|
|
*23
|
.1
|
|
|
|
Consent of Deloitte & Touche LLP.
|
|
*23
|
.2
|
|
|
|
Consent of Vinson & Elkins L.L.P. (contained in Exhibits
5.1 and 8.1).
|
|
*24
|
.1
|
|
|
|
Powers of Attorney for Officers and Directors of Spectra Energy
Partners GP, LLC
|
|
*25
|
.1
|
|
|
|
Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of the Trustee under the Senior
Indenture for Senior Debt Securities of Spectra Energy Partners,
LP.
|
|
*25
|
.2
|
|
|
|
Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of the Trustee under the
Subordinated Indenture for Subordinated Debt Securities of
Spectra Energy Partners, LP.
|
|
|
|
*
|
|
Filed herewith
|
|
**
|
|
To be filed as an Exhibit to a Current Report on
Form 8-K
or in a post-effective amendment to this registration statement
|
II-6
Exhibit 4.1
SPECTRA ENERGY PARTNERS, LP
as Issuer,
ANY SUBSIDIARY GUARANTORS PARTY HERETO,
and
WELLS FARGO BANK, N.A.,
as Trustee
INDENTURE
Dated as of
, 2009
Debt Securities
CROSS-REFERENCE TABLE
|
|
|
TIA Section
|
|
Indenture Section
|
310 (a)
|
|
7.10
|
(b)
|
|
7.10
|
(c)
|
|
N.A.
|
311 (a)
|
|
7.11
|
(b)
|
|
7.11
|
(c)
|
|
N.A.
|
312 (a)
|
|
5.01
|
(b)
|
|
5.02
|
(c)
|
|
5.02
|
313 (a)
|
|
5.03
|
(b)
|
|
5.03
|
(c)
|
|
13.03
|
(d)
|
|
5.03
|
314 (a)
|
|
4.05, 4.06
|
(b)
|
|
N.A.
|
(c)(1)
|
|
13.05
|
(c)(2)
|
|
13.05
|
(c)(3)
|
|
N.A.
|
(d)
|
|
N.A.
|
(e)
|
|
13.05
|
(f)
|
|
N.A.
|
315 (a)
|
|
7.01
|
(b)
|
|
6.07 & 13.03
|
(c)
|
|
7.01
|
(d)
|
|
7.01
|
(e)
|
|
6.08
|
316 (a) (last
sentence)
|
|
1.01
|
(a)(1)(A)
|
|
6.06
|
(a)(1)(B)
|
|
6.06
|
(a)(2)
|
|
9.01(d)
|
(b)
|
|
6.04
|
(c)
|
|
5.04
|
317 (a)(1)
|
|
6.02
|
(a)(2)
|
|
6.02
|
(b)
|
|
4.04
|
318 (a)
|
|
13.07
|
N.A. means Not Applicable
NOTE: This Cross-Reference table shall not, for any purpose, be deemed part of this Indenture.
i
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
ARTICLE I
|
DEFINITIONS AND INCORPORATION BY REFERENCE
|
|
|
|
|
|
Section 1.01. Definitions
|
|
|
1
|
|
Section 1.02. Other Definitions
|
|
|
7
|
|
Section 1.03. Incorporation by Reference of Trust Indenture Act
|
|
|
7
|
|
Section 1.04. Rules of Construction
|
|
|
7
|
|
|
|
|
|
|
ARTICLE II
|
DEBT SECURITIES
|
|
|
|
|
|
Section 2.01. Forms Generally
|
|
|
7
|
|
Section 2.02. Form of Trustees Certificate of Authentication
|
|
|
8
|
|
Section 2.03. Principal Amount; Issuable in Series
|
|
|
8
|
|
Section 2.04. Execution of Debt Securities
|
|
|
10
|
|
Section 2.05. Authentication and Delivery of Debt Securities
|
|
|
11
|
|
Section 2.06. Denomination of Debt Securities
|
|
|
12
|
|
Section 2.07. Registration of Transfer and Exchange
|
|
|
13
|
|
Section 2.08. Temporary Debt Securities
|
|
|
14
|
|
Section 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities
|
|
|
15
|
|
Section 2.10. Cancellation of Surrendered Debt Securities
|
|
|
15
|
|
Section 2.11. Provisions of the Indenture and Debt Securities for the Sole Benefit of the Parties and the Holders
|
|
|
16
|
|
Section 2.12. Payment of Interest; Interest Rights Preserved
|
|
|
16
|
|
Section 2.13. Securities Denominated in Dollars
|
|
|
16
|
|
Section 2.14. Wire Transfers
|
|
|
16
|
|
Section 2.15. Securities Issuable in the Form of a Global Security
|
|
|
16
|
|
Section 2.16. Medium Term Securities
|
|
|
19
|
|
Section 2.17. Defaulted Interest
|
|
|
19
|
|
Section 2.18. CUSIP and ISIN Numbers
|
|
|
20
|
|
|
|
|
|
|
ARTICLE III
|
REDEMPTION OF DEBT SECURITIES
|
|
|
|
|
|
Section 3.01. Applicability of Article
|
|
|
21
|
|
Section 3.02. Notice of Redemption; Selection of Debt Securities
|
|
|
21
|
|
Section 3.03. Payment of Debt Securities Called for Redemption
|
|
|
22
|
|
Section 3.04. Mandatory and Optional Sinking Funds
|
|
|
23
|
|
Section 3.05. Redemption of Debt Securities for Sinking Fund
|
|
|
23
|
|
|
|
|
|
|
ARTICLE IV
|
PARTICULAR COVENANTS OF THE PARTNERSHIP
|
|
|
|
|
|
Section 4.01. Payment of Principal of, and Premium, If Any, and Interest on, Debt Securities
|
|
|
25
|
|
ii
|
|
|
|
|
|
|
Page
|
Section 4.02. Maintenance of Offices or Agencies for Registration of Transfer, Exchange and Payment of Debt Securities
|
|
|
25
|
|
Section 4.03. Appointment to Fill a Vacancy in the Office of Trustee
|
|
|
26
|
|
Section 4.04. Duties of Paying Agents, etc.
|
|
|
26
|
|
Section 4.05. SEC Reports; Financial Statements
|
|
|
27
|
|
Section 4.06. Compliance Certificate
|
|
|
27
|
|
Section 4.07. Further Instruments and Acts
|
|
|
28
|
|
Section 4.08. Existence
|
|
|
28
|
|
Section 4.09. Maintenance of Properties
|
|
|
28
|
|
Section 4.10. Payment of Taxes and Other Claims
|
|
|
28
|
|
Section 4.11. Waiver of Certain Covenants
|
|
|
28
|
|
|
|
|
|
|
ARTICLE V
|
HOLDERS LISTS AND REPORTS BY THE TRUSTEE
|
|
|
|
|
|
Section 5.01. Partnership to Furnish Trustee Information as to Names and Addresses of Holders; Preservation of Information
|
|
|
29
|
|
Section 5.02. Communications to Holders
|
|
|
29
|
|
Section 5.03. Reports by Trustee
|
|
|
29
|
|
Section 5.04. Record Dates for Action by Holders
|
|
|
30
|
|
|
|
|
|
|
ARTICLE VI
|
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
|
|
|
|
|
|
Section 6.01. Events of Default
|
|
|
30
|
|
Section 6.02. Collection of Debt by Trustee, etc.
|
|
|
32
|
|
Section 6.03. Application of Money Collected by Trustee
|
|
|
33
|
|
Section 6.04. Limitation on Suits by Holders
|
|
|
34
|
|
Section 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of Default
|
|
|
35
|
|
Section 6.06. Rights of Holders of Majority in Principal Amount of Debt Securities to Direct Trustee and to Waive Default
|
|
|
35
|
|
Section 6.07. Trustee to Give Notice of Defaults Known to It, but May Withhold Such Notice in Certain Circumstances
|
|
|
36
|
|
Section 6.08. Requirement of an Undertaking to Pay Costs in Certain Suits under the Indenture or Against the Trustee
|
|
|
36
|
|
|
|
|
|
|
ARTICLE VII
|
CONCERNING THE TRUSTEE
|
|
|
|
|
|
Section 7.01. Certain Duties and Responsibilities
|
|
|
36
|
|
Section 7.02. Certain Rights of Trustee
|
|
|
37
|
|
Section 7.03. Trustee Not Liable for Recitals in Indenture or in Debt Securities
|
|
|
39
|
|
Section 7.04. Trustee, Paying Agent or Registrar May Own Debt Securities
|
|
|
39
|
|
Section 7.05. Money Received by Trustee to Be Held in Trust
|
|
|
39
|
|
Section 7.06. Compensation and Reimbursement
|
|
|
39
|
|
Section 7.07. Right of Trustee to Rely on an Officers Certificate Where No Other Evidence Specifically Prescribed
|
|
|
40
|
|
Section 7.08. Separate Trustee; Replacement of Trustee
|
|
|
40
|
|
iii
|
|
|
|
|
|
|
Page
|
Section 7.09. Successor Trustee by Merger
|
|
|
41
|
|
Section 7.10. Eligibility; Disqualification
|
|
|
42
|
|
Section 7.11. Preferential Collection of Claims Against Partnership
|
|
|
42
|
|
Section 7.12. Compliance with Tax Laws
|
|
|
42
|
|
|
|
|
|
|
ARTICLE VIII
|
CONCERNING THE HOLDERS
|
|
|
|
|
|
Section 8.01. Evidence of Action by Holders
|
|
|
42
|
|
Section 8.02. Proof of Execution of Instruments and of Holding of Debt Securities
|
|
|
42
|
|
Section 8.03. Who May Be Deemed Owner of Debt Securities
|
|
|
43
|
|
Section 8.04. Instruments Executed by Holders Bind Future Holders
|
|
|
43
|
|
|
|
|
|
|
ARTICLE IX
|
SUPPLEMENTAL INDENTURES
|
|
|
|
|
|
Section 9.01. Purposes for Which Supplemental Indenture May Be Entered into Without Consent of Holders
|
|
|
44
|
|
Section 9.02. Modification of Indenture with Consent of Holders of Debt Securities
|
|
|
45
|
|
Section 9.03. Effect of Supplemental Indentures
|
|
|
47
|
|
Section 9.04. Debt Securities May Bear Notation of Changes by Supplemental Indentures
|
|
|
47
|
|
|
|
|
|
|
ARTICLE X
|
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
|
|
|
|
|
|
Section 10.01. Consolidations and Mergers of the Partnership
|
|
|
47
|
|
Section 10.02. Rights and Duties of Successor Partnership
|
|
|
48
|
|
|
|
|
|
|
ARTICLE XI
|
SATISFACTION AND DISCHARGE OF
|
INDENTURE; DEFEASANCE; UNCLAIMED MONEY
|
|
|
|
|
|
Section 11.01. Applicability of Article
|
|
|
48
|
|
Section 11.02. Satisfaction and Discharge of Indenture; Defeasance
|
|
|
48
|
|
Section 11.03. Conditions of Defeasance
|
|
|
50
|
|
Section 11.04. Application of Trust Money
|
|
|
51
|
|
Section 11.05. Repayment to Partnership
|
|
|
51
|
|
Section 11.06. Indemnity for U.S. Government Obligations
|
|
|
51
|
|
Section 11.07. Reinstatement
|
|
|
51
|
|
|
|
|
|
|
ARTICLE XII
|
[RESERVED]
|
|
|
|
|
|
ARTICLE XIII
|
MISCELLANEOUS PROVISIONS
|
|
|
|
|
|
Section 13.01. Successors and Assigns of Partnership Bound by Indenture
|
|
|
51
|
|
Section 13.02. Acts of Board, Committee or Officer of Successor Partnership Valid
|
|
|
52
|
|
Section 13.03. Required Notices or Demands
|
|
|
52
|
|
iv
|
|
|
|
|
|
|
Page
|
Section 13.04. Indenture and Debt Securities to Be Construed in Accordance with the Laws of the State of New York
|
|
|
53
|
|
Section 13.05. Officers Certificate and Opinion of Counsel to Be Furnished upon Application or Demand by the Partnership
|
|
|
53
|
|
Section 13.06. Payments Due on Legal Holidays
|
|
|
53
|
|
Section 13.07. Provisions Required by TIA to Control
|
|
|
54
|
|
Section 13.08. Computation of Interest on Debt Securities
|
|
|
54
|
|
Section 13.09. Rules by Trustee, Paying Agent and Registrar
|
|
|
54
|
|
Section 13.10. No Recourse Against Others
|
|
|
54
|
|
Section 13.11. Severability
|
|
|
54
|
|
Section 13.12. Effect of Headings
|
|
|
54
|
|
Section 13.13. Indenture May Be Executed in Counterparts
|
|
|
54
|
|
|
|
|
|
|
ARTICLE XIV
|
GUARANTEE
|
|
|
|
|
|
Section 14.01. Unconditional Guarantee
|
|
|
54
|
|
Section 14.02. Execution and Delivery of Guarantee
|
|
|
56
|
|
Section 14.03. Limitation on Subsidiary Guarantors Liability
|
|
|
57
|
|
Section 14.04. Release of Subsidiary Guarantors from Guarantee
|
|
|
57
|
|
Section 14.05. Subsidiary Guarantor Contribution
|
|
|
58
|
|
Notation of Guarantee Annex A
v
THIS INDENTURE dated as of ___, 2009 is among Spectra Energy Partners, LP, a Delaware
limited partnership (the Partnership), any Subsidiary
Guarantors (as defined herein) that may become parties hereto, and Wells Fargo Bank, N.A., a national banking
association, as trustee (the Trustee).
RECITALS
OF THE PARTNERSHIP AND ANY SUBSIDIARY GUARANTORS
The Partnership
and any Subsidiary Guarantors have duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of the Partnerships debentures,
notes, bonds or other evidences of indebtedness to be issued in one or more series unlimited as to
principal amount (herein called the Debt Securities), and the Guarantee by each of the Subsidiary
Guarantors of the Debt Securities, as in this Indenture provided.
The Partnership
and any Subsidiary Guarantors are members of the same consolidated group of
companies. Any Subsidiary Guarantors will derive direct and indirect economic benefit from the
issuance of the Debt Securities. Accordingly, any Subsidiary Guarantor has duly authorized the
execution and delivery of this Indenture to provide for its full, unconditional and joint and
several guarantee of the Debt Securities to the extent provided in or pursuant to this Indenture.
All
things necessary to make this Indenture a valid agreement of the
Partnership and any
Subsidiary Guarantors, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
That in order to declare the terms and conditions upon which the Debt Securities are
authenticated, issued and delivered, and in consideration of the premises, and of the purchase and
acceptance of the Debt Securities by the holders thereof, the
Partnership, any Subsidiary
Guarantors and the Trustee covenant and agree with one other, for the benefit of the respective
Holders from time to time of the Debt Securities or any series thereof, as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01.
Definitions
.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, control when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms controlling and
controlled have meanings correlative to the foregoing. The Trustee may request and may
conclusively rely upon an Officers Certificate to determine whether any Person is an Affiliate of
any specified Person.
Agent means any Registrar or paying agent.
Bankruptcy Law means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.
Board of Directors means the board of directors of the General Partner or any authorized
committee of the board of directors of the General Partner or any directors and/or officers of the
General Partner to whom such board of directors or such committee shall have duly delegated its
authority to act hereunder. If the Partnership shall change its form of entity to other than a
limited partnership, the references to the board of directors of the General Partner shall mean the
board of directors (or other comparable governing body) of the Partnership.
Business Day means any day other than a Legal Holiday.
The term capital stock of any Person means and includes any and all shares, rights to
purchase, warrants or options (whether or not currently exercisable), participations or other
equivalents of or interests in (however designated) the equity (which includes, but is not limited
to, common stock, preferred stock and partnership and joint venture interests) of such Person
(excluding any debt securities that are convertible into, or exchangeable for, such equity).
Custodian means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Debt of any Person at any date means any obligation created or assumed by such Person for
the repayment of borrowed money and any guarantee thereof.
Debt Security or Debt Securities has the meaning stated in the first recital of this
Indenture and more particularly means any debt security or debt securities, as the case may be, of
any series authenticated and delivered under this Indenture.
Default means any event, act or condition that is, or after notice or the passage of time or
both would be, an Event of Default.
Depositary means, unless otherwise specified by the Partnership pursuant to either
Section 2.03 or 2.15, with respect to Debt Securities of any series issuable or issued in whole or
in part in the form of one or more Global Securities, The Depository Trust Company, New York, New
York, or any successor thereto registered as a clearing agency under the Exchange Act or other
applicable statute or regulations.
Dollar or $ means such currency of the United States as at the time of payment is legal
tender for the payment of public and private debts.
Exchange Act means the Securities Exchange Act of 1934, as amended, and any successor
statute.
Floating Rate Security means a Debt Security that provides for the payment of interest at a
variable rate determined periodically by reference to an interest rate index specified pursuant to
Section 2.03.
2
GAAP means generally accepted accounting principles in the United States, as in effect from
time to time.
General Partner means Spectra Energy Partners GP, LLC, a Delaware limited liability company,
and its successors as general partner of the general partner of the Partnership.
Global Security means with respect to any series of Debt Securities issued hereunder, a Debt
Security which is executed by the Partnership and authenticated and delivered by the Trustee to the
Depositary or pursuant to the Depositarys instruction, all in accordance with this Indenture and
any Indentures supplemental hereto, or resolution of the Board of Directors and set forth in an
Officers Certificate, which shall be registered in the name of the Depositary or its nominee and
which shall represent, and shall be denominated in an amount equal to the aggregate principal
amount of, all the Outstanding Debt Securities of such series or any portion thereof, in either
case having the same terms, including, without limitation, the same original issue date, date or
dates on which principal is due and interest rate or method of determining interest.
The term guarantee means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Debt or other obligation of any other Person and any obligation, direct
or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or other obligation of such other Person (whether
arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial statement conditions or
otherwise) or (b) entered into for purposes of assuring in any other manner the obligee of such
Debt or other obligation of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided, however, that the term guarantee shall not include
endorsements for collection or deposit in the ordinary course of business. The term guarantee
used as a verb has a corresponding meaning.
Holder, Holder of Debt Securities or other similar terms means, a Person in whose name a
Debt Security is registered in the Debt Security Register (as defined in Section 2.07(a)).
Indenture means this instrument as originally executed, or, if amended or supplemented as
herein provided, as so amended or supplemented and shall include the form and terms of particular
series of Debt Securities as contemplated hereunder, whether or not a supplemental Indenture is
entered into with respect thereto.
Legal Holiday means a Saturday, a Sunday or a day on which banking institutions in the City
of Houston or at a Place of Payment are authorized by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a Place of Payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
Lien means, with respect to any asset, any mortgage, lien, security interest, pledge, charge
or other encumbrance of any kind in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law.
3
Officer means, with respect to a Person, the Chairman of the Board, the President, any Vice
President, the Treasurer, any Assistant Treasurer, Controller, Secretary, Assistant Secretary or
any Assistant Vice President of such Person.
Officers Certificate means a certificate signed by two Officers of the General Partner, one
of whom must be the General Partners chief executive officer, chief financial officer or chief
accounting officer (or if the Partnership shall change its form of entity to other than a limited
partnership, by Persons, officers, members, agents and others holding positions comparable to those
of the foregoing nature, as applicable).
Opinion of Counsel means a written opinion from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of or counsel to the Partnership or the Trustee.
Original Issue Discount Debt Security means any Debt Security that provides for an amount
less than the principal amount thereof to be due and payable upon a declaration of acceleration of
the maturity thereof pursuant to Section 6.01.
Outstanding, when used with respect to any series of Debt Securities, means, as of the date
of determination, all Debt Securities of that series theretofore authenticated and delivered under
this Indenture, except:
|
(a)
|
|
Debt Securities of that series theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
|
|
|
(b)
|
|
Debt Securities of that series for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or any
paying agent (other than the Partnership) in trust or set aside and segregated
in trust by the Partnership (if the Partnership shall act as its own paying
agent) for the Holders of such Debt Securities; provided, that, if such Debt
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made; and
|
|
|
(c)
|
|
Debt Securities of that series which have been paid pursuant to
Section 2.09 or in exchange for or in lieu of which other Debt Securities have
been authenticated and delivered pursuant to this Indenture, other than any
such Debt Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Debt Securities are held by a bona
fide purchaser in whose hands such Debt Securities are valid obligations of the
Partnership;
|
provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Debt Securities of any series have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Debt Securities owned by the Partnership or any other obligor
upon the Debt Securities or any Affiliate of the Partnership or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand, authorization, direction, notice, consent or
waiver, only Debt Securities which a Trust Officer actually knows to be so
4
owned shall be so disregarded. Debt Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgees right so to act with respect to such Debt Securities and that the pledgee is not the
Partnership or any other obligor upon the Debt Securities or an Affiliate of the Partnership or of
such other obligor. In determining whether the Holders of the requisite principal amount of
Outstanding Debt Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of an Original Issue Discount Debt Security that
shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a declaration of
acceleration of the maturity thereof pursuant to Section 6.01.
Partnership means the Person named as the Partnership in the first paragraph of this
instrument until a successor Person shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter Partnership shall mean such successor Person.
Partnership Request and Partnership Order mean, respectively, a written request or order
signed in the name of the Partnership by the Chairman of the Board, the President or a Vice
President of the General Partner, and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary of the General Partner, and delivered
to the Trustee, or if the Partnership shall change its form of entity to other than a limited
partnership, by Persons or officers, members, agents and others holding positions comparable to
those of the foregoing nature, as applicable.
Person means any individual, corporation, partnership, joint venture, limited liability
company, incorporated or unincorporated association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof or other entity of any
kind.
Redemption Date, when used with respect to any Debt Security to be redeemed, means the date
fixed for such redemption by or pursuant to this Indenture.
SEC means the Securities and Exchange Commission.
Securities Act means the Securities Act of 1933, as amended, and any successor statute.
Stated Maturity means, with respect to any security, the date specified in such security as
the fixed date on which the payment of principal of such security is due and payable, including
pursuant to any mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has occurred).
Subsidiary of any Person means:
|
(1)
|
|
any corporation, association or other business entity of which more
than 50% of the total voting power of equity interests entitled, without regard
to the occurrence of any contingency, to vote in the election of directors,
|
5
|
|
|
managers, trustees or equivalent Persons thereof, is at the time of
determination owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of such Person or a combination
thereof; or
|
|
|
(2)
|
|
in the case of a partnership, more than 50% of the partners equity
interests, considering all partners equity interests as a single class, is at
such time of determination owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person or a combination
thereof.
|
Subsidiary
Guarantors means any Subsidiary of the Partnership that may execute this
Indenture, or a supplement thereto, for the purpose of providing a Guarantee of Debt Securities
pursuant to this Indenture, in each case until a successor Person or Persons shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter Subsidiary Guarantors
shall mean such successor Person or Persons.
TIA means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§77aaa-77bbbb), as in
effect on the date of this Indenture as originally executed and, to the extent required by law, as
amended.
Trustee initially means Wells Fargo Bank, N.A. and any other Person or Persons appointed as
such from time to time pursuant to Section 7.08, and, subject to the provisions of Article VII,
includes its or their successors and assigns. If at any time there is more than one such Person,
Trustee as used with respect to the Debt Securities of any series shall mean the Trustee with
respect to the Debt Securities of that series.
Trust Officer means any officer or assistant officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
United States means the United States of America (including the States and the District of
Columbia), its territories, its possessions and other areas subject to its jurisdiction.
U.S. Government Obligations means direct obligations of the United States of America,
obligations on which the payment of principal and interest is fully guaranteed by the United States
of America or obligations or guarantees for the payment of which the full faith and credit of the
United States of America is pledged.
Yield to Maturity means the yield to maturity, calculated at the time of issuance of a
series of Debt Securities, or, if applicable, at the most recent redetermination of interest on
such series and calculated in accordance with accepted financial practice.
6
Section 1.02.
Other Definitions
.
|
|
|
|
|
Term
|
|
Defined in Section
|
Debt Security Register
|
|
|
2.07
|
|
Defaulted Interest
|
|
|
2.17
|
|
Event of Default
|
|
|
6.01
|
|
Funding Guarantor
|
|
|
14.05
|
|
Guarantee
|
|
|
14.01
|
|
Place of Payment
|
|
|
2.03
|
|
Registrar
|
|
|
2.07
|
|
Successor Partnership
|
|
|
10.01
|
|
Section 1.03.
Incorporation by Reference of Trust Indenture Act
. Whenever this Indenture refers to a
provision of the TIA, the provision is incorporated by reference in and made a part of this
Indenture.
All terms used in this Indenture that are defined by the TIA, defined by TIA reference to
another statute or defined by SEC rule under the TIA have the meanings so assigned to them.
Section 1.04.
Rules of Construction
. Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with
GAAP;
(c) or is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
(e) provisions apply to successive events and transactions; and
(f) the principal amount of any noninterest bearing or other discount security at any date
shall be the principal amount thereof that would be shown on a balance sheet of the issuer dated
such date prepared in accordance with GAAP.
ARTICLE II
DEBT SECURITIES
Section 2.01.
Forms Generally
. The Debt Securities of each series shall be in substantially the form
established without the approval of any Holder by or pursuant to a resolution of the Board of
Directors or in one or more Indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by this
Indenture, and may have
such letters, numbers or other marks of identification and such legends or endorsements placed
thereon as the Partnership may deem appropriate (and, if not contained in a supplemental Indenture
entered into in accordance with Article IX, as are not prohibited by the provisions of this
Indenture) or as may be required or appropriate to comply with any law or with any rules made
pursuant thereto or with any rules of
7
any securities exchange on which such series of Debt
Securities may be listed, or to conform to general usage, or as may, consistently herewith, be
determined by the officers executing such Debt Securities as evidenced by their execution of the
Debt Securities.
The definitive Debt Securities of each series shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined by the officers
executing such Debt Securities, as evidenced by their execution of such Debt Securities.
Section 2.02.
Form of Trustees Certificate of Authentication
. The Trustees certificate of
authentication on all Debt Securities authenticated by the Trustee shall be in substantially the
following form:
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein referred to in the
within-mentioned Indenture.
|
|
|
|
|
|
WELLS FARGO BANK, N.A.,
As Trustee
|
|
|
By:
|
|
|
|
|
Authorized Signatory
|
|
|
|
|
|
|
Section 2.03.
Principal Amount; Issuable in Series
. The aggregate principal amount of Debt Securities
which may be issued, executed, authenticated, delivered and outstanding under this Indenture is
unlimited.
The Debt Securities may be issued in one or more series in fully registered form. There shall
be established, without the approval of any Holders, in or pursuant to a resolution of the Board of
Directors and set forth in an Officers Certificate, or established in one or more Indentures
supplemental hereto, prior to the issuance of Debt Securities of any series any or all of the
following:
(a) the title of the Debt Securities of the series (which shall distinguish the Debt
Securities of the series from all other Debt Securities);
(b) any limit upon the aggregate principal amount of the Debt Securities of the series which
may be authenticated and delivered under this Indenture (except for Debt Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to this Article II);
(c) the date or dates on which the principal of and premium, if any, on the Debt Securities of
the series are payable;
(d) the rate or rates (which may be fixed or variable) at which the Debt Securities of the
series shall bear interest, if any, or the method of determining such rate or rates, the date or
dates from which such interest shall accrue, the interest payment dates on which such interest
8
shall be payable, or the method by which such date will be determined, the record dates for the
determination of Holders thereof to whom such interest is payable, or the method by which such date
will be determined; and the basis upon which interest will be calculated if other than that of a
360-day year of twelve thirty-day months;
(e) the place or places, if any, in addition to the corporate trust office of the Trustee in
New York, New York, where the principal of, and premium, if any, and interest on, Debt Securities
of the series shall be payable (Place of Payment);
(f) the price or prices at which, the period or periods within which and the terms and
conditions upon which Debt Securities of the series may be redeemed, in whole or in part, at the
option of the Partnership or otherwise;
(g) whether Debt Securities of the series are entitled to the benefits of the Guarantee of any
Subsidiary Guarantor pursuant to this Indenture;
(h) the obligation, if any, of the Partnership to redeem, purchase or repay Debt Securities of
the series pursuant to any sinking fund or analogous provisions or at the option of a Holder
thereof, and the price or prices at which and the period or periods within which and the terms and
conditions upon which Debt Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligations;
(i) the terms, if any, upon which the Debt Securities of the series may be convertible into or
exchanged for capital stock (which may be represented by depositary shares), other Debt Securities
or warrants for capital stock or Debt or other securities of any kind of the Partnership or any
other obligor and the terms and conditions upon which such conversion or exchange shall be
effected, including the initial conversion or exchange price or rate, the conversion or exchange
period and any other provision in addition to or in lieu of those described herein;
(j) if other than denominations of $1,000 and any integral multiple thereof, the denominations
in which Debt Securities of the series shall be issuable;
(k) if the amount of principal of or any premium or interest on Debt Securities of the series
may be determined with reference to an index or pursuant to a formula, the manner in which such
amounts will be determined;
(l) if the principal amount payable at the Stated Maturity of Debt Securities of the series
will not be determinable as of any one or more dates prior to such Stated Maturity, the amount
which will be deemed to be such principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any maturity other than the Stated
Maturity or which will be deemed to be Outstanding as of any such date (or, in any such case, the
manner in which such deemed principal amount is to be determined);
(m) any changes or additions to Article XI, including the addition of additional covenants
that may be subject to the covenant defeasance option pursuant to Section 11.02(b);
9
(n) if other than the principal amount thereof, the portion of the principal amount of Debt
Securities of the series which shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.01 or provable in bankruptcy pursuant to Section 6.02;
(o) the terms, if any, of the transfer, mortgage, pledge or assignment as security for the
Debt Securities of the series of any properties, assets, money, proceeds, securities or other
collateral, including whether certain provisions of the TIA are applicable and any corresponding
changes to provisions of this Indenture as currently in effect;
(p) any addition to or change in the Events of Default with respect to the Debt Securities of
the series and any change in the right of the Trustee or the Holders to declare the principal of,
and premium and interest on, such Debt Securities due and payable;
(q) if the Debt Securities of the series shall be issued in whole or in part in the form of a
Global Security or Securities, the terms and conditions, if any, upon which such Global Security or
Securities may be exchanged in whole or in part for other individual Debt Securities in definitive
registered form; and the Depositary for such Global Security or Securities and the form of any
legend or legends to be borne by any such Global Security or Securities in addition to or in lieu
of the legend referred to in Section 2.15(a);
(r) any trustees, authenticating or paying agents, transfer agents or registrars;
(s) the applicability of, and any addition to or change in the covenants and definitions
currently set forth in this Indenture or in the terms currently set forth in Article X, including
conditioning any merger, conveyance, transfer or lease permitted by Article X upon the satisfaction
of any Debt coverage standard by the Partnership and Successor Partnership (as defined in
Article X);
(t) with regard to Debt Securities of the series that do not bear interest, the dates for
certain required reports to the Trustee; and
(u) any other terms of the Debt Securities of the series (which terms shall not be prohibited
by the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to such resolution of the Board
of Directors and as set forth in such Officers Certificate or in any such Indenture supplemental
hereto.
Section 2.04.
Execution of Debt Securities
. The Debt Securities shall be signed on behalf of the
Partnership by the Chairman of the Board, the President or a Vice President of the General Partner
and, if the seal of the General Partner is reproduced thereon, it shall be attested by its
Secretary, an Assistant Secretary, a Treasurer or an Assistant Treasurer. Such signatures upon the
Debt Securities may be the manual or facsimile
signatures of the present or any future such authorized officers and may be imprinted or otherwise
reproduced on the Debt Securities. The seal of the General Partner, if any, may be in the form of
a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Debt
Securities.
10
Only such Debt Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, signed manually by the Trustee, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Debt Security executed by the General Partner on behalf of the Partnership shall be conclusive
evidence that the Debt Security so authenticated has been duly authenticated and delivered
hereunder.
In case any officer of the General Partner who shall have signed any of the Debt Securities
shall cease to be such officer before the Debt Securities so signed shall have been authenticated
and delivered by the Trustee, or disposed of by the Partnership, such Debt Securities nevertheless
may be authenticated and delivered or disposed of as though the Person who signed such Debt
Securities had not ceased to be such officer of the General Partner; and any Debt Security may be
signed on behalf of the General Partner by such Persons as, at the actual date of the execution of
such Debt Security, shall be the proper officers of the General Partner, although at the date of
such Debt Security or of the execution of this Indenture any such Person was not such officer.
Section 2.05.
Authentication and Delivery of Debt Securities
. At any time and from time to time after
the execution and delivery of this Indenture, the Partnership may deliver Debt Securities of any
series executed by the Partnership to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debt Securities to or upon a Partnership Order. In
authenticating such Debt Securities, and accepting the additional responsibilities under this
Indenture in relation to such Debt Securities, the Trustee shall be entitled to receive, and
(subject to Section 7.01) shall be fully protected in relying upon:
(a) a copy of any resolution or resolutions of the Board of Directors, certified by the
Secretary or Assistant Secretary of the General Partner, authorizing the terms of issuance of any
series of Debt Securities;
(b) an executed supplemental Indenture, if any;
(c) an Officers Certificate; and
(d) an Opinion of Counsel prepared in accordance with Section 13.05 which shall also state:
(i) that the form of such Debt Securities has been established by or pursuant to a
resolution of the Board of Directors or by a supplemental Indenture as permitted by
Section 2.01 in conformity with the provisions of this Indenture;
(ii) that the terms of such Debt Securities have been established by or pursuant to a
resolution of the Board of Directors or by a supplemental Indenture as permitted by
Section 2.03 in conformity with the provisions of this Indenture;
(iii) that such Debt Securities, when authenticated and delivered by the Trustee and
issued by the Partnership in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of the
Partnership, enforceable in accordance with their terms except as the enforceability
11
thereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors rights generally and rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability;
(iv) that the Partnership has the partnership power to issue such Debt Securities and
has duly taken all necessary partnership action with respect to such issuance;
(v) that the issuance of such Debt Securities will not contravene the organizational
documents of the Partnership or result in any material violation of any of the terms or
provisions of any law or regulation or of any material indenture, mortgage or other
agreement known to such counsel by which the Partnership is bound;
(vi) that authentication and delivery of such Debt Securities and the execution and
delivery of any supplemental Indenture will not violate the terms of this Indenture; and
(vii) such other matters as the Trustee may reasonably request.
Such Opinion of Counsel need express no opinion as to whether a court in the United States
would render a money judgment in a currency other than that of the United States.
The Trustee shall have the right to decline to authenticate and deliver any Debt Securities
under this Section 2.05 if the Trustee, being advised by counsel, determines that such action may
not lawfully be taken or if the Trustee in good faith by its board of directors or trustees,
executive committee or a trust committee of directors, trustees or officers (or any combination
thereof) shall determine that such action would expose the Trustee to personal liability to
existing Holders.
The Trustee may appoint an authenticating agent reasonably acceptable to the Partnership to
authenticate Debt Securities of any series. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Debt Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as any Registrar, paying agent or agent for service of
notices and demands.
Unless otherwise provided in the form of Debt Security for any series, each Debt Security
shall be dated the date of its authentication.
Section 2.06.
Denomination of Debt Securities
. Unless otherwise provided in the form of Debt Security for any series, the Debt Securities of
each series shall be issuable only as fully registered Debt Securities in such Dollar denominations
as shall be specified or contemplated by Section 2.03. In the absence of any such specification
with respect to the Debt Securities of any series, the Debt Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
12
Section 2.07.
Registration of Transfer and Exchange.
(a) The Partnership shall keep or cause to be kept a register for each series of Debt
Securities issued hereunder (hereinafter collectively referred to as the Debt Security Register),
in which, subject to such reasonable regulations as it may prescribe, the Partnership shall provide
for the registration of all Debt Securities and the transfer of Debt Securities as in this
Article II provided. At all reasonable times the Debt Security Register shall be open for
inspection by the Trustee. Subject to Section 2.15, upon due presentment for registration of
transfer of any Debt Security at any office or agency to be maintained by the Partnership in
accordance with the provisions of Section 4.02, the Partnership shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new Debt Security or Debt
Securities of authorized denominations for a like aggregate principal amount. In no event may Debt
Securities be issued as, or exchanged for, bearer securities.
Unless and until otherwise determined by the Partnership, the Debt Security Register shall be
kept at the corporate trust office of the Trustee referred to in Section 13.03 and, for this
purpose, the Trustee shall be designated Registrar.
Debt Securities of any series (other than a Global Security, except as set forth below) may be
exchanged for a like aggregate principal amount of Debt Securities of the same series of other
authorized denominations. Subject to Section 2.15, Debt Securities to be exchanged shall be
surrendered at the office or agency to be maintained by the Partnership as provided in
Section 4.02, and the Partnership shall execute and the Trustee shall authenticate and deliver in
exchange therefor the Debt Security or Debt Securities which the Holder making the exchange shall
be entitled to receive.
(b) All Debt Securities presented or surrendered for registration of transfer, exchange or
payment shall (if so required by the Partnership, the Trustee or the Registrar) be duly endorsed or
be accompanied by a written instrument or instruments of transfer, in form satisfactory to the
Partnership, the Trustee and the Registrar, duly executed by the Holder or his attorney duly
authorized in writing.
All Debt Securities issued in exchange for or upon transfer of Debt Securities shall be the
valid obligations of the Partnership, evidencing the same debt, and entitled to the same benefits
under this Indenture as the Debt Securities surrendered for such exchange or transfer.
No service charge shall be made for any exchange or registration of transfer of Debt
Securities (except as provided by Section 2.09), but the Partnership may require payment of a sum
sufficient to cover any tax, fee, assessment or other governmental charge that may be imposed in
relation thereto, other than those expressly provided in this Indenture to be made at the
Partnerships own expense or without expense or without charge to the Holders.
The Partnership shall not be required (i) to issue, register the transfer of or exchange any
Debt Securities for a period of 15 days next preceding any mailing of notice of redemption of Debt
Securities of such series or (ii) to register the transfer of or exchange any Debt Securities
selected, called or being called for redemption.
13
Prior to the due presentation for registration of transfer of any Debt Security, the
Partnership, the Subsidiary Guarantors, the Trustee, any paying agent or any Registrar may deem and
treat the Person in whose name a Debt Security is registered as the absolute owner of such Debt
Security for the purpose of receiving payment of or on account of the principal of, and premium, if
any, and (subject to Section 2.12) interest on, such Debt Security and for all other purposes
whatsoever, whether or not such Debt Security is overdue, and none of the Partnership, the
Subsidiary Guarantors, the Trustee, any paying agent or any Registrar shall be affected by notice
to the contrary.
None of the Partnership, the Subsidiary Guarantors, the Trustee, any agent of the Trustee, any
paying agent or any Registrar will have any responsibility or liability for any aspect of the
records relating to, or payments made on account of, beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Section 2.08.
Temporary Debt Securities
. Pending the preparation of definitive Debt Securities of any
series, the Partnership may execute and the Trustee shall authenticate and deliver temporary Debt
Securities (printed, lithographed, photocopied, typewritten or otherwise produced) of any
authorized denomination, and substantially in the form of the definitive Debt Securities in lieu of
which they are issued, in registered form with such omissions, insertions and variations as may be
appropriate for temporary Debt Securities, all as may be determined by the Partnership with the
concurrence of the Trustee. Temporary Debt Securities may contain such reference to any provisions
of this Indenture as may be appropriate. Every temporary Debt Security shall be executed by the
Partnership and be authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Debt Securities.
If temporary Debt Securities of any series are issued, the Partnership will cause definitive
Debt Securities of such series to be prepared without unreasonable delay. After the preparation of
definitive Debt Securities of such series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series upon surrender of the temporary Debt
Securities of such series at the office or agency of the Partnership at a Place of Payment for such
series, without charge to the Holder thereof, except as provided in Section 2.07 in connection with
a transfer. Upon surrender for cancellation of any one or more temporary Debt Securities of any
series, the Partnership shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Debt Securities of the same series of authorized
denominations and of like tenor. Until so exchanged, temporary Debt Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as definitive Debt Securities
of such series.
Upon any exchange of a portion of a temporary Global Security for a definitive Global Security
or for the individual Debt Securities represented thereby pursuant to Section 2.07 or this
Section 2.08, the temporary Global Security shall be endorsed by the Trustee to reflect the
reduction of the principal amount evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by the amount to be exchanged and
endorsed.
14
Section 2.09.
Mutilated, Destroyed, Lost or Stolen Debt Securities
. If (a) any mutilated Debt Security
is surrendered to the Trustee at its corporate trust office or (b) the Partnership and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any Debt Security, and
there is delivered to the Partnership and the Trustee such security or indemnity as may be required
by them to save each of them and any paying agent harmless, and neither the Partnership nor the
Trustee receives notice that such Debt Security has been acquired by a protected purchaser, then
the Partnership shall execute and, upon a Partnership Order, the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Debt Security,
a new Debt Security of the same series of like tenor, form, terms and principal amount, bearing a
number not contemporaneously Outstanding. Upon the issuance of any substituted Debt Security, the
Partnership or the Trustee may require the payment of a sum sufficient to cover any tax, fee,
assessment or other governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Debt Security which has matured or is about to mature or
which has been called for redemption shall become mutilated or be destroyed, lost or stolen, the
Partnership may, instead of issuing a substituted Debt Security, pay or authorize the payment of
the same (without surrender thereof except in the case of a mutilated Debt Security) if the
applicant for such payment shall furnish the Partnership and the Trustee with such security or
indemnity as either may require to save it harmless from all risk, however remote, and, in case of
destruction, loss or theft, evidence to the satisfaction of the Partnership and the Trustee of the
destruction, loss or theft of such Debt Security and of the ownership thereof.
Every substituted Debt Security of any series issued pursuant to the provisions of this
Section 2.09 by virtue of the fact that any Debt Security is destroyed, lost or stolen shall
constitute an original additional contractual obligation of the Partnership, whether or not the
destroyed, lost or stolen Debt Security shall be found at any time, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Debt Securities
of that series duly issued hereunder. All Debt Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debt Securities, and shall preclude any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable instruments or other securities without their
surrender.
Section 2.10.
Cancellation of Surrendered Debt Securities
. All Debt Securities surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to the Partnership or any
paying agent or a Registrar, be delivered to the Trustee for cancellation by it, or if surrendered
to the Trustee, shall be canceled by it, and no
Debt Securities shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. All canceled Debt Securities held by the Trustee shall be destroyed
(subject to the record retention requirements of the Exchange Act) and certification of their
destruction delivered to the Partnership, unless otherwise directed. On request of the
Partnership, the Trustee shall deliver to the Partnership canceled Debt Securities held by the
Trustee. If the Partnership shall acquire any of the Debt Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the Debt represented thereby unless and until
the same are delivered or surrendered to the Trustee for cancellation. The Partnership may not
issue new Debt Securities to replace Debt Securities it has redeemed, paid or delivered to the
Trustee for cancellation.
15
Section 2.11.
Provisions of the Indenture and Debt Securities for the Sole Benefit of the Parties and the
Holders
. Nothing in this Indenture or in the Debt Securities, expressed or implied, shall give
or be construed to give to any Person, other than the parties hereto, the Holders or any Registrar
or paying agent, any legal or equitable right, remedy or claim under or in respect of this
Indenture, or under any covenant, condition or provision herein contained; all its covenants,
conditions and provisions being for the sole benefit of the parties hereto, the Holders and any
Registrar and paying agents.
Section 2.12.
Payment of Interest; Interest Rights Preserved.
(a) Interest on any Debt Security that is payable and is punctually paid or duly provided for
on any interest payment date shall be paid to the Person in whose name such Debt Security is
registered at the close of business on the regular record date for such interest notwithstanding
the cancellation of such Debt Security upon any transfer or exchange subsequent to the regular
record date. Payment of interest on Debt Securities shall be made at the corporate trust office of
the Trustee (except as otherwise specified pursuant to Section 2.03), or at the option of the
Partnership, by check mailed to the address of the Person entitled thereto as such address shall
appear in the Debt Security Register or, if provided pursuant to Section 2.03 and in accordance
with arrangements satisfactory to the Trustee, at the option of the Holder by wire transfer to an
account designated by the Holder.
(b) Subject to the foregoing provisions of this Section 2.12 and Section 2.17, each Debt
Security of a particular series delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Debt Security of the same series shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other Debt Security.
Section 2.13.
Securities Denominated in Dollars
. Except as otherwise specified pursuant to Section 2.03
for Debt Securities of any series, payment of the principal of, and premium, if any, and interest
on, Debt Securities of such series will be made in Dollars.
Section 2.14.
Wire Transfers
. Notwithstanding any other provision to the contrary in this Indenture, the
Partnership may make any payment of money required to be deposited with the Trustee on account of
principal of, or premium, if any, or interest on, the Debt Securities (whether pursuant to optional
or mandatory redemption payments, interest payments or otherwise) by wire transfer in immediately
available funds to an account designated by the Trustee by 11:00 a.m., New York City time, on the
date such money is to be paid to the Holders of the Debt Securities in accordance with the terms
hereof.
Section 2.15.
Securities Issuable in the Form of a Global Security
.
(a) If the Partnership shall establish pursuant to Sections 2.01 and 2.03 that the Debt
Securities of a particular series are to be issued in whole or in part in the form of one or more
Global Securities, then the Partnership shall execute and the Trustee or its agent shall, in
accordance with Section 2.05, authenticate and deliver, such Global Security or Securities, which
shall represent, and shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Debt Securities of such series to be represented by such Global Security or
Securities, or such portion thereof as the Partnership shall specify in an Officers Certificate,
16
shall be registered in the name of the Depositary for such Global Security or Securities or its
nominee, shall be delivered by the Trustee or its agent to the Depositary or pursuant to the
Depositarys instruction and shall bear a legend substantially to the following effect:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO THE PARTNERSHIP OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO HEREIN,
or such other legend as may then be required by the Depositary for such Global Security or
Securities.
(b) Notwithstanding any other provision of this Section 2.15 or of Section 2.07 to the
contrary, and subject to the provisions of paragraph (c) below, unless the terms of a Global
Security expressly permit such Global Security to be exchanged in whole or in part for
definitive Debt Securities in registered form, a Global Security may be transferred, in whole but
not in part and in the manner provided in Section 2.07, only by the Depositary to a nominee of the
Depositary for such Global Security, or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary, or by the Depositary or a nominee of the Depositary to a successor
Depositary for such Global Security selected or approved by the Partnership, or to a nominee of
such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security or Securities notifies the
Partnership that it is unwilling or unable to continue as Depositary for such Global
Security or Securities or if at any time the Depositary for the Debt Securities for such
series shall no longer be eligible or in good standing under the Exchange Act or other
applicable statute, rule or regulation, the Partnership shall appoint a successor Depositary
with respect to such Global Security or Securities. If a successor Depositary for such
Global Security or Securities is not appointed by the Partnership within 90 days after the
Partnership receives such notice or becomes aware of such ineligibility, the Partnership
shall execute, and the Trustee or its agent, upon receipt of a Partnership Order for the
authentication and delivery of such individual Debt Securities of such series in exchange
for such Global Security or Securities, will authenticate and deliver, individual Debt
17
Securities of such series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of the Global Security or Securities in
exchange for such Global Security or Securities.
(ii) The Partnership may at any time and in its sole discretion determine that the Debt
Securities of any series or portion thereof issued or issuable in the form of one or more
Global Securities shall no longer be represented by such Global Security or Securities. In
such event the Partnership will execute, and the Trustee, upon receipt of a Partnership
Order for the authentication and delivery of individual Debt Securities of such series in
exchange in whole or in part for such Global Security or Securities, will authenticate and
deliver individual Debt Securities of such series of like tenor and terms in definitive form
in an aggregate principal amount equal to the principal amount of such series or portion
thereof in exchange for such Global Security or Securities.
(iii) If specified by the Partnership pursuant to Sections 2.01 and 2.03 with respect to
Debt Securities issued or issuable in the form of a Global Security, the Depositary for such
Global Security may surrender such Global Security in exchange in whole or in part for
individual Debt Securities of such series of like tenor and terms in definitive form on such
terms as are acceptable to the Partnership, the Trustee and such Depositary. Thereupon the
Partnership shall execute, and the Trustee or its agent upon receipt of a Partnership Order
for the authentication and delivery of definitive Debt Securities of such series shall
authenticate and deliver, without service charge, to each Person specified by such
Depositary a new Debt Security or Securities of the same series of like tenor and terms and
of any authorized denomination as requested by such Person in aggregate principal amount
equal to and in exchange for such Persons beneficial interest in the Global Security; and
to such Depositary a new Global Security of like tenor and terms and in an authorized
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal amount of Debt
Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding three paragraphs, the Partnership
will execute and the Trustee or its agent will authenticate and deliver individual Debt
Securities. Upon the exchange of the entire principal amount of a Global Security for
individual Debt Securities, such Global Security shall be canceled by the Trustee or its
agent. Except as provided in the preceding paragraph, Debt Securities issued in exchange
for a Global Security pursuant to this Section 2.15 shall be registered in such names and in
such authorized denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall instruct the
Trustee or the Registrar. The Trustee or the Registrar shall deliver such Debt Securities
to the Persons in whose names such Debt Securities are so registered.
(v) Payments in respect of the principal of and interest on any Debt Securities issued in
global form and registered in the name of the Depositary or its nominee will be payable to
the Depositary or such nominee in its capacity as the registered owner of such Global
Security. The Partnership, the Subsidiary Guarantors and the Trustee may treat the Person
in whose name the Debt Securities, including the Global Security, are registered as the
owner thereof for the purpose of receiving such payments and for any
18
and all other purposes
whatsoever. None of the Partnership, the Subsidiary Guarantors, the Trustee, any Registrar,
the paying agent or any agent of the Partnership or the Trustee will have any responsibility
or liability for any aspect of the records relating to or payments made on account of the
beneficial ownership interests of the Global Security by the Depositary or its nominee or
any of the Depositarys direct or indirect participants, or for maintaining, supervising or
reviewing any records of the Depositary, its nominee or any of its direct or indirect
participants relating to the beneficial ownership interests of the Global Security, the
payments to the beneficial owners of the Global Security of amounts paid to the Depositary
or its nominee, or any other matter relating to the actions and practices of the
Depositary, its nominee or any of its direct or indirect participants. None of the
Partnership, the Subsidiary Guarantors, the Trustee or any such agent will be liable for any
delay by the Depositary, its nominee, or any of its direct or indirect participants in
identifying the beneficial owners of the Debt Securities, and the Partnership and the
Trustee may conclusively rely on, and will be protected in relying on, instructions from the
Depositary or its nominee for all purposes (including with respect to the registration and
delivery, and the respective principal amounts, of the individual Debt Securities to be
issued).
Section 2.16.
Medium Term Securities
. Notwithstanding any contrary provision herein, if all Debt
Securities of a series are not to be originally issued at one time, it shall not be necessary for
the Partnership to deliver to the Trustee an Officers Certificate, resolutions of the Board of
Directors, supplemental Indenture, Opinion of Counsel or written order or any other document
otherwise required pursuant to Section 2.01, 2.03, 2.05 or 13.05 at or prior to the time of
authentication of each Debt Security of such series if such documents are delivered to the Trustee
or its agent at or prior to the authentication upon original issuance of the first such Debt
Security of such series to be issued; provided, that any
subsequent request by the Partnership to the Trustee to authenticate Debt Securities of such series
upon original issuance shall constitute a representation and warranty by the Partnership that, as
of the date of such request, the statements made in the Officers Certificate delivered pursuant to
Section 2.05 or 13.05 shall be true and correct as if made on such date and that the Opinion of
Counsel delivered at or prior to such time of authentication of an original issuance of Debt
Securities shall specifically state that it shall relate to all subsequent issuances of Debt
Securities of such series that are identical to the Debt Securities issued in the first issuance of
Debt Securities of such series.
A Partnership Order delivered by the Partnership to the Trustee in the circumstances set forth
in the preceding paragraph, may provide that Debt Securities which are the subject thereof will be
authenticated and delivered by the Trustee or its agent on original issue from time to time upon
the telephonic or written order of Persons designated in such written order (any such telephonic
instructions to be promptly confirmed in writing by such Person) and that such Persons are
authorized to determine, consistent with the Officers Certificate, supplemental Indenture or
resolution of the Board of Directors relating to such written order, such terms and conditions of
such Debt Securities as are specified in such Officers Certificate, supplemental Indenture or such
resolution.
Section 2.17.
Defaulted Interest
. Any interest on any Debt Security of a particular series which is
payable, but is not punctually paid or duly provided for, on the dates and in the manner provided
in the Debt Securities of such series and in this Indenture (herein called
19
Defaulted Interest)
shall forthwith cease to be payable to the Holder thereof on the relevant record date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the Partnership, at its
election in each case, as provided in clause (i) or (ii) below:
(i) The Partnership may elect to make payment of any Defaulted Interest to the Persons
in whose names the Debt Securities of such series are registered at the close of business on
a special record date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Partnership shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Debt Security of such series and the
date of the proposed payment, and at the same time the Partnership shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly notify the
Partnership of such special record date and, in the name and at the expense of the
Partnership, shall cause notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be mailed, first class postage pre-paid, to each Holder
thereof at its address as it appears in the Debt Security Register, not less than 10 days
prior to such special record date. Notice of the
proposed payment of such Defaulted Interest and the special record date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Debt
Securities of such series are registered at the close of business on such special record
date.
(ii) The Partnership may make payment of any Defaulted Interest on the Debt Securities
of such series in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debt Securities of such series may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the Partnership to the
Trustee of the proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Section 2.18.
CUSIP and ISIN Numbers
. The Partnership in issuing the Debt Securities may use CUSIP and
corresponding ISIN numbers (if then generally in use), and, if so, the Trustee shall use CUSIP
and corresponding ISIN numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the accuracy of such numbers
either as printed on the Debt Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the Debt Securities, and
any such redemption shall not be affected by any defect in or omission of such numbers. The
Partnership will promptly notify the Trustee in writing of any change in the CUSIP and ISIN
numbers.
20
ARTICLE III
REDEMPTION OF DEBT SECURITIES
Section 3.01.
Applicability of Article
. The provisions of this Article shall be applicable to the Debt
Securities of any series which are redeemable before their Stated Maturity except as otherwise
specified as contemplated by Section 2.03 for Debt Securities of such series.
Section 3.02.
Notice of Redemption; Selection of Debt Securities
. In case the Partnership shall desire
to exercise the right to redeem all or, as the case may be, any part of the Debt Securities of any
series in accordance with their terms, by resolution of the Board of Directors or a supplemental
Indenture, the Partnership shall fix a date for redemption and shall give notice of such redemption
at least 30 and not more than 60 days prior to the date fixed for redemption to the Holders of Debt
Securities of such series so to be redeemed as a whole or in part, in the manner provided in
Section 13.03; provided, however, such notice may be given more than 60 days prior to the
Redemption Date if the notice is given in connection with a satisfaction and discharge pursuant to
Section 11.02(a). The notice if given in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the Holder receives such notice. In any case, failure to
give such notice or any defect in the notice to the Holder of any Debt Security of a series
designated for redemption as a whole or in part shall not affect the validity of the proceedings
for the redemption of any other Debt Security of such series.
Each such notice of redemption shall specify (i) the Redemption Date, (ii) the redemption
price at which Debt Securities of such series are to be redeemed (or the method of calculating such
redemption price), (iii) the Place or Places of Payment that payment will be made upon presentation
and surrender of such Debt Securities, (iv) that any interest accrued to the Redemption Date will
be paid as specified in said notice, (v) that the redemption is for a sinking fund payment (if
applicable), (vi) that, unless otherwise specified in such notice, if the Partnership defaults in
making such redemption payment, the paying agent is prohibited from making such payment pursuant to
the terms of this Indenture, (vii) that on and after said date any interest thereon or on the
portions thereof to be redeemed will cease to accrue, (viii) that in the case of Original Issue
Discount Securities original issue discount accrued after the Redemption Date will cease to accrue,
(ix) the terms of the Debt Securities of that series pursuant to which the Debt Securities of that
series are being redeemed and (x) that no representation is made as to the correctness or accuracy
of the CUSIP or ISIN number, if any, listed in such notice or printed on the Debt Securities of
that series. If less than all the Debt Securities of a series are to be redeemed at any time, the
notice of redemption shall specify the certificate numbers of the Debt Securities of that series to
be redeemed. In case any Debt Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be redeemed and shall state
that on and after the Redemption Date, upon surrender of such Debt Security, a new Debt Security or
Debt Securities of that series in principal amount equal to the unredeemed portion thereof, will be
issued.
At least five days before giving of any notice of redemption, unless the Trustee consents to a
shorter period, the Partnership shall give written notice to the Trustee of the Redemption Date,
the principal amount of Debt Securities to be redeemed and the series and terms of the Debt
Securities pursuant to which such redemption will occur. Such notice shall be
21
accompanied by an
Officers Certificate and an Opinion of Counsel from the Partnership to the effect that such
redemption will comply with the conditions herein, and such notice may be revoked at any time prior
to the giving of a notice of redemption to the Holders pursuant to this Section 3.02. If fewer
than all the Debt Securities of a series are to be redeemed, the record date relating to such
redemption shall be selected by the Partnership and given in writing to the Trustee, which record
date shall be not less than 15 days after the date of notice to the Trustee.
By 11 a.m., New York City time, on the Redemption Date for any Debt Securities, the
Partnership shall deposit with the Trustee or with a paying agent (or, if the Partnership is acting
as its own paying agent, segregate and hold in trust) an amount of money in Dollars (except as
provided pursuant to Section 2.03) sufficient to pay the redemption price of such Debt Securities
or any portions thereof that are to be redeemed on that date, together with any interest accrued to
the Redemption Date.
If less than all the Debt Securities of like tenor and terms of a series are to be redeemed
(other than pursuant to a mandatory sinking fund), the Trustee shall select, on a
pro rata
basis,
by lot or by such other method as in its sole discretion it shall deem appropriate and fair, the
Debt Securities of that series or portions thereof (in multiples of $1,000) to be redeemed. In any
case where more than one Debt Security of such series is registered in the same name, the Trustee
in its discretion may treat the aggregate principal amount so registered as if it were represented
by one Debt Security of such series. The Trustee shall promptly notify the Partnership in writing
of the Debt Securities selected for redemption and, in the case of any Debt
Securities selected for partial redemption, the principal amount thereof to be redeemed. If
any Debt Security called for redemption shall not be so paid upon surrender thereof on such
Redemption Date, the principal, premium, if any, and interest shall bear interest until paid from
the Redemption Date at the rate borne by the Debt Securities of that series. If less than all the
Debt Securities of unlike tenor and terms of a series are to be redeemed, the particular Debt
Securities to be redeemed shall be selected by the Partnership. Provisions of this Indenture that
apply to Debt Securities called for redemption also apply to portions of Debt Securities called for
redemption.
Section 3.03.
Payment of Debt Securities Called for Redemption
. If notice of redemption has been given
as provided in Section 3.02, the Debt Securities or portions of Debt Securities of the series with
respect to which such notice has been given shall become due and payable on the date and at the
Place or Places of Payment stated in such notice at the applicable redemption price, together with
any interest accrued to the Redemption Date, and on and after said date (unless the Partnership
shall default in the payment of such Debt Securities at the applicable redemption price, together
with any interest accrued to said date) any interest on the Debt Securities or portions of Debt
Securities of any series so called for redemption shall cease to accrue, and any original issue
discount in the case of Original Issue Discount Securities shall cease to accrue. On presentation
and surrender of such Debt Securities at the Place or Places of Payment in said notice specified,
the said Debt Securities or the specified portions thereof shall be paid and redeemed by the
Partnership at the applicable redemption price, together with any interest accrued thereon to the
Redemption Date.
Any Debt Security that is to be redeemed only in part shall be surrendered at the Place of
Payment with, if the Partnership, the Registrar or the Trustee so requires, due endorsement by, or
22
a written instrument of transfer in form satisfactory to the Partnership, the Registrar and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing, and the
Partnership shall execute, and the Trustee shall authenticate and deliver to the Holder of such
Debt Security without service charge, a new Debt Security or Debt Securities of the same series, of
like tenor and form, of any authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unredeemed portion of the principal of the Debt
Security so surrendered; except that if a Global Security is so surrendered, the Partnership shall
execute, and the Trustee shall authenticate and deliver to the Depositary for such Global Security,
without service charge, a new Global Security in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Global Security so surrendered. In the case of a Debt
Security providing appropriate space for such notation, at the option of the Holder thereof, the
Trustee, in lieu of delivering a new Debt Security or Debt Securities as aforesaid, may make a
notation on such Debt Security of the payment of the redeemed portion thereof.
Section 3.04.
Mandatory and Optional Sinking Funds
. The minimum amount of any sinking fund payment
provided for by the terms of Debt Securities of any series, resolution of the Board of Directors or
a supplemental Indenture is herein referred to as a mandatory sinking fund payment, and any
payment in excess of such minimum amount provided for by the terms of Debt Securities of any
series, resolution of the
Board of Directors or a supplemental Indenture is herein referred to as an optional sinking fund
payment.
In lieu of making all or any part of any mandatory sinking fund payment with respect to any
Debt Securities of a series in cash, the Partnership may at its option (a) deliver to the Trustee
Debt Securities of that series theretofore purchased or otherwise acquired by the Partnership or
(b) receive credit for the principal amount of Debt Securities of that series which have been
redeemed either at the election of the Partnership pursuant to the terms of such Debt Securities or
through the application of permitted optional sinking fund payments pursuant to the terms of such
Debt Securities, resolution or supplemental Indenture; provided, that such Debt Securities have not
been previously so credited. Such Debt Securities shall be received and credited for such purpose
by the Trustee at the redemption price specified in such Debt Securities, resolution or
supplemental Indenture for redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
Section 3.05.
Redemption of Debt Securities for Sinking Fund
. Not less than 60 days prior to each
sinking fund payment date for any series of Debt Securities, the Partnership will deliver to the
Trustee an Officers Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, any resolution or supplemental Indenture, the
portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Debt Securities of that series pursuant
to this Section 3.05 (which Debt Securities, if not previously redeemed, will accompany such
certificate) and whether the Partnership intends to exercise its right to make any permitted
optional sinking fund payment with respect to such series. Such certificate shall also state that
no Event of Default has occurred and is continuing with respect to such series. Such certificate
shall be irrevocable and upon its delivery the Partnership shall be obligated to make the cash
payment or payments therein referred to, if any, by 11 a.m., New York City time, on the next
succeeding sinking fund payment date. Failure of the Partnership to
23
deliver such certificate (or
to deliver the Debt Securities specified in this paragraph) shall not constitute a Default, but
such failure shall require that the sinking fund payment due on the next succeeding sinking fund
payment date for that series shall be paid entirely in cash and shall be sufficient to redeem the
principal amount of such Debt Securities subject to a mandatory sinking fund payment without the
option to deliver or credit Debt Securities as provided in this Section 3.05 and without the right
to make any optional sinking fund payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused
balance of any preceding sinking fund payments made in cash which shall equal or exceed $100,000
(or a lesser sum if the Partnership shall so request) with respect to the Debt Securities of any
particular series shall be applied by the Trustee on the sinking fund payment date on which such
payment is made (or, if such payment is made before a sinking fund payment date, on the sinking
fund payment date following the date of such payment) to the redemption of such Debt Securities at
the redemption price specified in such Debt Securities, resolution or supplemental Indenture for
operation of the sinking fund together with any accrued interest to the date fixed for redemption.
Any sinking fund money not so applied or allocated by the Trustee to the redemption of Debt
Securities shall be added to the next cash sinking fund payment received
by the Trustee for such series and, together with such payment, shall be applied in accordance
with the provisions of this Section 3.05. Any and all sinking fund money with respect to the Debt
Securities of any particular series held by the Trustee on the last sinking fund payment date with
respect to Debt Securities of such series and not held for the payment or redemption of particular
Debt Securities shall be applied by the Trustee, together with other money, if necessary, to be
deposited sufficient for the purpose, to the payment of the principal of the Debt Securities of
that series at its Stated Maturity.
The Trustee shall select the Debt Securities to be redeemed upon such sinking fund payment
date in the manner specified in the last paragraph of Section 3.02, and the Partnership shall cause
notice of the redemption thereof to be given in the manner provided in Section 3.02 except that the
notice of redemption shall also state that the Debt Securities are being redeemed by operation of
the sinking fund. Such notice having been duly given, the redemption of such Debt Securities shall
be made upon the terms and in the manner stated in Section 3.03.
The Trustee shall not redeem any Debt Securities of a series with sinking fund money or mail
any notice of redemption of such Debt Securities by operation of the sinking fund for such series
during the continuance of a Default in payment of interest on such Debt Securities or of any Event
of Default (other than an Event of Default occurring as a consequence of this paragraph) with
respect to such Debt Securities, except that if the notice of redemption of any such Debt
Securities shall theretofore have been mailed in accordance with the provisions hereof, the Trustee
shall redeem such Debt Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article III. Except as aforesaid,
any money in the sinking fund for such series at the time when any such Default or Event of Default
shall occur and any money thereafter paid into such sinking fund shall, during the continuance of
such Default or Event of Default, be held as security for the payment of such Debt Securities;
provided, however, that in case such Default or Event of Default shall have been cured or waived as
provided herein, such money shall thereafter be
24
applied on the next sinking fund payment date for
such Debt Securities on which such money may be applied pursuant to the provisions of this
Section 3.05.
ARTICLE IV
PARTICULAR COVENANTS OF THE PARTNERSHIP
Section 4.01.
Payment of Principal of, and Premium, If Any, and Interest on, Debt Securities
. The
Partnership, for the benefit of each series of Debt Securities, will duly and punctually pay or
cause to be paid the principal of, and premium, if any, and interest on, each of the Debt
Securities at the place, at the respective times and in the manner provided herein or in the Debt
Securities. Each installment of interest on the Debt Securities (other than those represented by a
Global Security) may at the Partnerships option be paid by mailing checks for such interest
payable to the Person entitled thereto pursuant to Section 2.07(a) to the address of such Person as
it appears on the Debt Security Register.
Principal of and premium and interest on Debt Securities of any series shall be considered
paid on the date due if, by 11 a.m., New York City time, on such date the Trustee or any paying
agent holds in accordance with this Indenture money sufficient to pay all principal, premium
and interest then due.
The Partnership shall pay interest on overdue principal or premium, if any, at the rate
specified therefor in the Debt Securities and it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
Section 4.02.
Maintenance of Offices or Agencies for Registration of Transfer, Exchange and Payment of Debt
Securities
. The Partnership will maintain in New York, New York and in any other Place of
Payment for any series of Debt Securities an office or agency where Debt Securities of such series
may be presented or surrendered for payment. Initially, such office or agency shall be the office
of the Trustee at 45 Broadway, 14
th
Floor, New York, New York 10006-3007. it shall also
maintain (in or outside such Place of Payment) an office or agency where Debt Securities of such
series may be surrendered for transfer or exchange and where notices and demands to or upon the
Partnership in respect of the Debt Securities of such series and this Indenture may be served.
Initially, such office or agency shall be the office of the Trustee referred to in Section 13.03.
The Partnership will give prompt written notice to the Trustee of the location, and any change in
the location, of such office or agency. If at any time the Partnership shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the office of the Trustee
referred to in Section 13.03, and the Partnership hereby appoints the Trustee as its agent to
receive all presentations, surrenders, notices and demands.
The Partnership may also from time to time designate different or additional offices or
agencies to be maintained for such purposes (in or outside of such Place of Payment), and may from
time to time rescind any such designation; provided, however, that no such designation or
rescission shall in any manner relieve the Partnership of its obligations described in the
preceding paragraph. The Partnership will give prompt written notice to the Trustee of any such
25
additional designation or rescission of designation and any change in the location of any such
different or additional office or agency.
Section 4.03.
Appointment to Fill a Vacancy in the Office of Trustee
. The Partnership, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 7.08, a Trustee, so that there shall at all times be a Trustee hereunder with respect to
each series of Debt Securities.
Section 4.04.
Duties of Paying Agents, etc
. The Partnership shall cause each paying agent, if any, other
than the Trustee, to execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section 4.04,
(i) that it will hold all sums held by it as such agent for the payment of the
principal of, and premium, if any, or interest on, the Debt Securities of any series
(whether such sums have been paid to it by the Partnership or by any other obligor on the
Debt Securities of such series) in trust for the benefit of the Holders of the Debt
Securities of such series;
(ii) that it will give the Trustee notice of any failure by the Partnership (or by any
other obligor on the Debt Securities of such series) to make any payment of the principal
of, and premium, if any, or interest on, the Debt Securities of such series when the same
shall be due and payable; and
(iii) that it will at any time during the continuance of an Event of Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held by it as such
agent.
(b) If the Partnership shall act as its own paying agent, it will, by 11 a.m., New York City
time, on each due date of the principal of, and premium, if any, or interest on, the Debt
Securities of any series, set aside, segregate and hold in trust for the benefit of the Holders of
the Debt Securities of such series a sum sufficient to pay such principal, premium, if any, or
interest so becoming due. The Partnership will promptly notify the Trustee of any failure by the
Partnership to take such action or the failure by any other obligor on such Debt Securities to make
any payment of the principal of, and premium, if any, or interest on, such Debt Securities when the
same shall be due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the Partnership may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust by it or any paying agent, as
required by this Section 4.04, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Partnership or such paying agent.
(d) Whenever the Partnership shall have one or more paying agents with respect to any series
of Debt Securities, it will, prior to each due date of the principal of, and premium, if any, or
interest on, any Debt Securities of such series, deposit with any such paying agent a sum
sufficient to pay the principal, premium or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled thereto, and (unless any such paying agent is the Trustee)
the Partnership will promptly notify the Trustee of its action or failure so to act.
26
(e) Anything in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 4.04 is subject to the provisions of Section 11.05.
Section 4.05.
SEC Reports; Financial Statements
.
(a) The Partnership shall, so long as any of the Debt Securities are Outstanding, file with
the Trustee, within 15 days after it files the same with the SEC, copies of the annual reports and
the information, documents and other reports (or copies of such portions of any of the foregoing as
the SEC may by rules and regulations prescribe) that the Partnership is required to file with the
SEC pursuant to Section 13 or 15(d) of the Exchange Act. If the Partnership is not subject to the
requirements of such Section 13 or 15(d), the Partnership shall file with the Trustee, within 15
days after it would have been required to file the same with the SEC, financial statements,
including any notes thereto (and with respect to annual reports, an auditors report by a firm of
established national reputation), and a Managements Discussion and Analysis of
Financial Condition and Results of Operations, both comparable to that which the Partnership
would have been required to include in such annual reports, information, documents or other reports
if the Partnership had been subject to the requirements of such Section 13 or 15(d). The
Partnership shall also comply with the provisions of TIA Section 314(a).
(b) If the Partnership is required to furnish annual or quarterly reports to its capital
stockholders pursuant to the Exchange Act, the Partnership shall, so long as any of the Debt
Securities are outstanding, cause any annual report furnished to its capital stockholders generally
and any quarterly or other financial reports furnished by it to its capital stockholders generally
to be filed with the Trustee and mailed to the Holders in the manner and to the extent provided in
Section 5.03.
(c) The Partnership shall provide the Trustee with a sufficient number of copies of all
reports and other documents and information that the Trustee may be required to deliver to Holders
under this Section.
Section 4.06.
Compliance Certificate.
(a) The Partnership shall, so long as any of the Debt Securities are Outstanding, deliver to
the Trustee, within 120 days after the end of each fiscal year of the Partnership, an Officers
Certificate, on behalf of itself and each of the Subsidiary Guarantors, stating that a review of
the activities of the Partnership and its Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing Officers of the General Partner with a view to
determining whether each of the Partnership and the Subsidiary Guarantors has kept, observed,
performed and fulfilled its obligations under this Indenture, and further stating, as to each such
Officer signing such certificate, that to the best of his knowledge each of the Partnership and the
Subsidiary Guarantors has kept, observed, performed and fulfilled each and every covenant contained
in this Indenture and is not in default in the performance or observance of any of the terms,
provisions and conditions hereof, without regard to any grace period or requirement of notice
required by this Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which such Officer may have knowledge and what action the
Partnership or any Subsidiary Guarantor is taking or proposes to take with respect thereto).
27
(b) The Partnership shall, so long as any of the Debt Securities are Outstanding, deliver to
the Trustee within 30 days after the occurrence of any Default or Event of Default under this
Indenture, an Officers Certificate specifying such Default or Event of Default, the status thereof
and what curative action the Partnership is taking or proposes to take with respect thereto.
Section 4.07.
Further Instruments and Acts
. The Partnership will, upon request of the Trustee, execute
and deliver such further instruments and do such further acts as may reasonably be necessary or
proper to carry out more effectually the purposes of this Indenture.
Section 4.08.
Existence
. Except as permitted by Article X hereof, the Partnership shall do or cause to be done all things
necessary to preserve and keep in full force and effect its existence and all rights (charter and
statutory) and franchises of the Partnership, provided that the Partnership shall not be required
to preserve any such right or franchise, if the Partnership shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Partnership.
Section 4.09.
Maintenance of Properties
. The Partnership shall cause all properties owned by the
Partnership or any of its Subsidiaries or used or held for use in the conduct of its business or
the business of any such Subsidiary to be maintained and kept in good condition, repair and working
order (reasonable wear and tear excepted) and supplied with all necessary equipment and will cause
to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all
as in the judgment of the Partnership may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times; provided that
nothing in this Section shall prevent the Partnership from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, in the judgment of the
Partnership, desirable in the conduct of its business or the business of any such Subsidiary and
not disadvantageous in any material respect to the Holders.
Section 4.10.
Payment of Taxes and Other Claims
. The Partnership shall pay or discharge or cause to be
paid or discharged, before the same shall become delinquent, (i) all taxes, assessments and
governmental charges levied or imposed upon the Partnership or any of its Subsidiaries or upon the
income, profits or property of the Partnership or any of its Subsidiaries, and (ii) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a Lien upon the
property of the Partnership or any of its Subsidiaries; provided that the Partnership shall not be
required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith by appropriate
proceedings.
Section 4.11.
Waiver of Certain Covenants
. The Partnership and the Subsidiary Guarantors may, with
respect to the Debt Securities of any series, omit in any particular instance to comply with any
covenant set forth in this Article IV (except Sections 4.01 through 4.08) or made applicable to
such Debt Securities pursuant to Section 2.03, if, before or after the time for such compliance,
the Holders of at least a majority in principal amount of the Outstanding Debt Securities of each
series affected, waive such compliance in such instance with such covenant, but no such waiver
shall extend to or affect such covenant except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Partnership and the
28
Subsidiary Guarantors and
the duties of the Trustee in respect of any such covenant shall remain in full force and effect.
ARTICLE V
HOLDERS LISTS AND REPORTS BY THE TRUSTEE
Section 5.01.
Partnership to Furnish Trustee Information as to Names and Addresses of Holders; Preservation
of Information
. The Partnership covenants and agrees that it will furnish or cause to be
furnished to the Trustee with respect to the Debt Securities of each series:
(a) not more than 10 days after each record date with respect to the payment of interest, if
any, a list, in such form as the Trustee may reasonably require, of the names and addresses of the
Holders as of such record date, and
(b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Partnership of any such request, a list of similar form and contents as of a date
not more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee shall be the Registrar, such lists shall not be
required to be furnished.
The Trustee shall preserve, in as current a form as is reasonably practicable, all information
as to the names and addresses of the Holders (i) contained in the most recent list furnished to it
as provided in this Section 5.01 or (ii) received by it in the capacity of paying agent or
Registrar (if so acting) hereunder.
The Trustee may destroy any list furnished to it as provided in this Section 5.01 upon receipt
of a new list so furnished.
Section 5.02.
Communications to Holders
. Holders may communicate pursuant to Section 312(b) of the TIA
with other Holders with respect to their rights under this Indenture or the Debt Securities. The
Partnership, the Trustee, the Registrar and anyone else shall have the protection of Section 312(c)
of the TIA.
Section 5.03.
Reports by Trustee
. Within 60 days after each January 31, beginning with the first January
31 following the date of this Indenture, and in any event on or before April 1 in each year, the
Trustee shall mail to Holders a brief report dated as of such January 31 that complies with TIA
Section 313(a); provided, however, that if no event described in TIA Section 313(a) has occurred
within the twelve months preceding the reporting date, no report need be transmitted. The Trustee
also shall comply with TIA Section 313(b).
Reports pursuant to this Section 5.03 shall be transmitted by mail:
(a) to all Holders, as the names and addresses of such Holders appear in the Debt Security
Register; and
29
(b) except in the cases of reports under Section 313(b)(2) of the TIA, to each Holder of a
Debt Security of any series whose name and address appear in the information preserved at the time
by the Trustee in accordance with Section 5.01.
A copy of each report at the time of its mailing to Holders shall be filed with the SEC and
each stock exchange (if any) on which the Debt Securities of any series are listed. The
Partnership agrees to notify promptly the Trustee whenever the Debt Securities of any series become
listed on any stock exchange and of any delisting thereof.
Section 5.04.
Record Dates for Action by Holders
. If the Partnership shall solicit from the Holders of
Debt Securities of any series any action (including the making of any demand or request, the giving
of any direction, notice, consent or waiver or the taking of any other action), the Partnership
may, at its option, by resolution of the Board of Directors, fix in advance a record date for the
determination of Holders of Debt Securities entitled to take such action, but the Partnership shall
have no obligation to do so. Any such record date shall be fixed at the Partnerships discretion.
If such a record date is fixed, such action may be sought or given before or after the record date,
but only the Holders of Debt Securities of record at the close of business on such record date
shall be deemed to be Holders of Debt Securities for the purpose of determining whether Holders of
the requisite proportion of Debt Securities of such series Outstanding have authorized or agreed or
consented to such action, and for that purpose the Debt Securities of such series Outstanding shall
be computed as of such record date.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
Section 6.01.
Events of Default
. If any one or more of the following shall have occurred and be
continuing with respect to Debt Securities of any series (each of the following, an Event of
Default):
(a) default in the payment of any installment of interest upon any Debt Securities of that
series as and when the same shall become due and payable, and continuance of such default for a
period of 30 days; or
(b) default in the payment of the principal of or premium, if any, on any Debt Securities of
that series as and when the same shall become due and payable, whether at Stated Maturity, upon
redemption, by declaration, upon required repurchase or otherwise; or
(c) default in the payment of any sinking fund payment with respect to any Debt Securities of
that series as and when the same shall become due and payable; or
(d) failure on the part of the Partnership, or if any series of Debt Securities Outstanding
under this Indenture is entitled to the benefits of a Guarantee, any of the Subsidiary Guarantors,
duly to observe or perform any other of the covenants or agreements on the part of the Partnership,
or, if applicable, any of the Subsidiary Guarantors, in the Debt Securities of that series, in any
resolution of the Board of Directors authorizing the issuance of that series of Debt
Securities, in this Indenture with respect to such series or in any supplemental Indenture
with respect to such series (other than a covenant a default in the performance of which is
elsewhere in this Section specifically dealt with), continuing for a period of 60 days after the
date on which
30
written notice specifying such failure and requiring the Partnership, or if
applicable, the Subsidiary Guarantor, to remedy the same shall have been given, to the Partnership,
or if applicable, the Subsidiary Guarantor, by the Trustee or to the Partnership, or if applicable,
the Subsidiary Guarantor, and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Debt Securities of that series at the time Outstanding; or
(e) the Partnership, or if any series of Debt Securities Outstanding under this Indenture is
entitled to the benefits of a Guarantee, any of the Subsidiary Guarantors, pursuant to or within
the meaning of any Bankruptcy Law,
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or for all or substantially all
of its property; or
(iv) makes a general assignment for the benefit of its creditors;
(f) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Partnership, or if any series of Debt Securities
Outstanding under this Indenture is entitled to the benefits of a Guarantee, any of the
Subsidiary Guarantors, as debtor in an involuntary case,
(ii) appoints a Custodian of the Partnership, or if any series of Debt Securities
Outstanding under this Indenture is entitled to the benefits of a Guarantee, any of the
Subsidiary Guarantors, or a Custodian for all or substantially all of the property of the
Partnership, or if applicable, any of the Subsidiary Guarantors, or
(iii) orders the liquidation of the Partnership, or if any series of Debt Securities
Outstanding under this Indenture is entitled to the benefits of a Guarantee, any of the
Subsidiary Guarantors,
and the order or decree remains unstayed and in effect for 60 days;
(g) if any series of Debt Securities Outstanding under this Indenture is entitled to the
benefits of a Guarantee, the Guarantee of any of the Subsidiary Guarantors ceases to be in full
force and effect with respect to Debt Securities of that series (except as otherwise provided in
this Indenture) or is declared null and void in a judicial proceeding or any of the Subsidiary
Guarantors denies or disaffirms its obligations under this Indenture or such Guarantee; or
(h) any other Event of Default provided with respect to Debt Securities of that series;
then and in each and every case that an Event of Default described in clause (a), (b), (c), (d),
(g), or (h) with respect to Debt Securities of that series at the time Outstanding occurs and is
continuing, unless the principal of, premium, if any, and interest on all the Debt Securities of
that
31
series shall have already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Debt Securities of that series then Outstanding
hereunder, by notice in writing to the Partnership (and to the Trustee if given by Holders), may
declare the entire principal of (or, if the Debt Securities of that series are Original Issue
Discount Debt Securities, such portion of the principal amount as may be specified in the terms of
that series), premium, if any, and accrued and unpaid interest on all the Debt Securities of that
series to be due and payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Indenture or in the Debt Securities of that
series contained to the contrary notwithstanding. If an Event of Default described in clause (e)
or (f) occurs, then and in each and every such case, unless the principal of and interest on all
the Debt Securities shall have become due and payable, the entire principal of (or, if any Debt
Securities are Original Issue Discount Debt Securities, such portion of the principal amount as may
be specified in the terms of that series), premium, if any, and accrued and unpaid interest on all
the Debt Securities then Outstanding hereunder shall
ipso facto
become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any Holders, anything in
this Indenture or in the Debt Securities contained to the contrary notwithstanding.
The Holders of a majority in aggregate principal amount of the Debt Securities of a particular
series by written notice to the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree of a court of competent jurisdiction
already rendered and if all existing Events of Default with respect to Debt Securities of that
series have been cured or waived except nonpayment of principal, premium, if any, or interest that
has become due solely because of acceleration. Upon any such rescission, the parties hereto shall
be restored respectively to their several positions and rights hereunder, and all rights, remedies
and powers of the parties hereto shall continue as though no such proceeding had been taken.
Section 6.02.
Collection of Debt by Trustee, etc.
If an Event of Default occurs and is continuing, the
Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for the collection of the sums so due and
unpaid or enforce the performance of any provision of the Debt Securities of the affected series or
this Indenture, and may prosecute any such action or proceedings to judgment or final decree, and
may enforce any such judgment or final decree against any of the Subsidiary Guarantors or the
Partnership or any other obligor upon the Debt Securities of such series (and collect in the manner
provided by law out of the property of any of the Subsidiary Guarantors or the Partnership or any
other obligor upon the Debt Securities of such series wherever situated the money adjudged or
decreed to be payable).
In case there shall be pending proceedings for the bankruptcy or for the reorganization of any
of the Subsidiary Guarantors or the Partnership or any other obligor upon the Debt Securities of
any series under any Bankruptcy Law, or in case a Custodian shall have been appointed for its
property, or in case of any other similar judicial proceedings relative to any of the Subsidiary
Guarantors or the Partnership or any other obligor upon the Debt Securities of any series, its
creditors or its property, the Trustee, irrespective of whether the principal of Debt
Securities of any series shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 6.02, shall be entitled and empowered, by intervention in such
proceedings or
32
otherwise, to file and prove a claim or claims for the whole amount of principal,
premium, if any, and interest (or, if the Debt Securities of such series are Original Issue
Discount Debt Securities, such portion of the principal amount as may be specified in the terms of
such series) owing and unpaid in respect of the Debt Securities of such series, and to file such
other papers or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for reasonable compensation to the Trustee, its agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by
the Trustee except as a result of its negligence or bad faith) and of the Holders thereof allowed
in any such judicial proceedings relative to any of the Subsidiary Guarantors or the Partnership,
or any other obligor upon the Debt Securities of such series, its creditors or its property, and to
collect and receive any money or other property payable or deliverable on any such claims, and to
distribute all amounts received with respect to the claims of such Holders and of the Trustee on
their behalf, and any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of such Holders to make payments to the Trustee, and, in the event that the
Trustee shall consent to the making of payments directly to such Holders, to pay to the Trustee
such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other reasonable expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith.
All rights of action and of asserting claims under this Indenture, or under any of the Debt
Securities of any series, may be enforced by the Trustee without the possession of any such Debt
Securities, or the production thereof in any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of
an express trust, and any recovery of judgment (except for any amounts payable to the Trustee
pursuant to Section 7.06) shall be for the ratable benefit of the Holders of all the Debt
Securities in respect of which such action was taken.
In case of an Event of Default hereunder the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or
in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power granted in this
Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Section 6.03.
Application of Money Collected by Trustee
. Any money or other property collected by the
Trustee pursuant to Section 6.02 with respect to Debt Securities of any series shall be applied, in
the order following, at the date or dates fixed by the Trustee for the distribution of such money
or other property, upon presentation of the several Debt Securities of such series in respect of
which money or other property have been collected, and the notation thereon of the payment, if only
partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all money due the Trustee pursuant to Section 7.06;
SECOND: In case the principal of the Outstanding Debt Securities in respect of which such
money has been collected shall not have become due, to the payment of interest on the Debt
Securities of such series in the order of the maturity of the installments of such interest, with
33
interest (to the extent that such interest has been collected by the Trustee) upon the overdue
installments of interest at the rate or Yield to Maturity (in the case of Original Issue Discount
Debt Securities) borne by the Debt Securities of such series, such payments to be made ratably to
the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Outstanding Debt Securities in respect of which such
money has been collected shall have become due, by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon the Debt Securities of such series for principal and
premium, if any, and interest, with interest on the overdue principal and premium, if any, and (to
the extent that such interest has been collected by the Trustee) upon overdue installments of
interest at the rate or Yield to Maturity (in the case of Original Issue Discount Debt Securities)
borne by the Debt Securities of such series; and, in case such money shall be insufficient to pay
in full the whole amount so due and unpaid upon the Debt Securities of such series, then to the
payment of such principal and premium, if any, and interest, without preference or priority of
principal and premium, if any, over interest, or of interest over principal and premium, if any, or
of any installment of interest over any other installment of interest, or of any Debt Security of
such series over any Debt Security of such series, ratably to the aggregate of such principal and
premium, if any, and interest; and
FOURTH: The remainder, if any, shall be paid to any of the Subsidiary Guarantors or the
Partnership, as applicable, its successors or assigns, or to whomsoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 6.03. At least 15 days before such record date, the Partnership shall mail to each Holder
and the Trustee a notice that states the record date, the payment date and amount to be paid.
Section 6.04.
Limitation on Suits by Holders
. No Holder of any Debt Security of any series shall have
any right by virtue or by availing of any provision of this Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise, upon or under or with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder,
unless such Holder previously shall have given to the Trustee written notice of an Event of Default
with respect to Debt Securities of that same series and of the continuance thereof and unless the
Holders of not less than 25% in aggregate principal amount of the Outstanding Debt Securities of
that series shall have made written request upon the Trustee to institute such action or
proceedings in respect of such Event of Default in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity or security as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee, for 60 days after its
receipt of such notice, request and offer of indemnity or security shall have failed to institute
any such action or proceedings
and no direction inconsistent with such written request shall have been given to the Trustee
pursuant to Section 6.06; it being understood and intended, and being expressly covenanted by the
Holder of every Debt Security with every other Holder and the Trustee, that no one or more Holders
shall have any right in any manner whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any Holders, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right under this Indenture,
except in the manner herein
34
provided and for the equal, ratable and common benefit of all such
Holders. For the protection and enforcement of the provisions of this Section 6.04, each and every
Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision in this Indenture, however, the right of any Holder of any
Debt Security to receive payment of the principal of, and premium, if any, and (subject to
Section 2.12) interest on, such Debt Security, on or after the respective due dates expressed in
such Debt Security, and to institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.05.
Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of Default
. All
powers and remedies given by this Article VI to the Trustee or to the Holders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the Holders, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements contained in this Indenture, and no
delay or omission of the Trustee or of any Holder to exercise any right or power accruing upon any
Default occurring and continuing as aforesaid, shall impair any such right or power, or shall be
construed to be a waiver of any such Default or an acquiescence therein; and, subject to the
provisions of Section 6.04, every power and remedy given by this Article VI or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders.
Section 6.06.
Rights of Holders of Majority in Principal Amount of Debt Securities to Direct Trustee and to
Waive Default
. The Holders of not less than a majority in aggregate principal amount of the
Debt Securities of any series at the time Outstanding shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any right, trust or power conferred on the Trustee, with respect to the Debt Securities
of such series; provided, however, that such direction shall not be otherwise than in accordance
with law and the provisions of this Indenture, and that subject to the provisions of Section 7.01,
the Trustee shall have the right to decline to follow any such direction if the Trustee being
advised by counsel shall determine that the action so directed may not lawfully be taken or is
inconsistent with any provision of this Indenture, or if the Trustee shall by a responsible officer
or officers determine that the action so directed would involve it in personal liability or would
be unduly prejudicial to Holders of Debt Securities of such series not taking part in such
direction; and provided, further, however, that nothing contained in this Indenture shall impair
the right of the Trustee to take any action deemed proper by the Trustee and which is not
inconsistent with such direction by such
Holders. The Holders of not less than a majority in aggregate principal amount of the Debt
Securities of that series at the time Outstanding may on behalf of the Holders of all the Debt
Securities of that series waive any past Default or Event of Default and its consequences for that
series, except a Default or Event of Default in the payment of the principal of, and premium, if
any, or interest on, any of the Debt Securities and a Default or Event of Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of each Holder affected
thereby. In case of any such waiver, such Default shall cease to exist, any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this Indenture, and the
Subsidiary Guarantors, the Partnership, the Trustee and the Holders of the Debt Securities of that
series shall be restored to their former positions and rights
35
hereunder, respectively; but no such
waiver shall extend to any subsequent or other Default or Event of Default or impair any right
consequent thereon.
Section 6.07.
Trustee to Give Notice of Defaults Known to It, but May Withhold Such Notice in Certain
Circumstances
. The Trustee shall, within 90 days after the occurrence of a Default known to it
with respect to a series of Debt Securities, give to the Holders thereof, in the manner provided in
Section 13.03, notice of all Defaults with respect to such series known to the Trustee, unless such
Defaults shall have been cured or waived before the giving of such notice; provided, that, except
in the case of Default in the payment of the principal of, or premium, if any, or interest on, any
of the Debt Securities of such series or in the making of any sinking fund payment with respect to
the Debt Securities of such series, the Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee, or a committee of directors or
responsible officers, of the Trustee in good faith determines that the withholding of such notice
is in the interests of the Holders thereof.
Section 6.08.
Requirement of an Undertaking to Pay Costs in Certain Suits under the Indenture or Against the
Trustee
. All parties to this Indenture agree, and each Holder of any Debt Security by his
acceptance thereof shall be deemed to have agreed, that any 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 it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit in the manner and to the extent provided
in the TIA, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys fees and expenses, 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; but the provisions of
this Section 6.08 shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 25 percent in principal amount
of the Outstanding Debt Securities of that series or to any suit instituted by any Holder for the
enforcement of the payment of the principal of, or premium, if any, or interest on, any Debt
Security on or after the due date for such payment expressed in such Debt Security.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01.
Certain Duties and Responsibilities
. The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the
same degree of care and skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure to act, its own bad faith or its own willful
misconduct, except that:
(a) this paragraph shall not be construed to limit the effect of the first paragraph of this
Section 7.01;
36
(b) prior to the occurrence of an Event of Default with respect to the Debt Securities of a
series and after the curing or waiving of all Events of Default with respect to such series which
may have occurred:
(i) the duties and obligations of the Trustee with respect to Debt Securities of any
series shall be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties and obligations with
respect to such series as are specifically set forth in this Indenture, and no implied
covenants or obligations with respect to such series shall be read into this Indenture
against the Trustee;
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates or opinions
which by any provision hereof 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;
(iii) the Trustee shall not be liable for an error of judgment made in good faith by a
responsible officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iv) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it with respect to Debt Securities of any series in good faith in accordance with
the direction of the Holders of not less than a majority in aggregate principal amount of
the Outstanding Debt Securities of that 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, under this Indenture with respect to Debt
Securities of such series.
None of the provisions of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any personal financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds
for believing that repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
Section 7.02.
Certain Rights of Trustee
. Except as otherwise provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note or other paper or document (whether in its original or
37
facsimile form) believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Partnership mentioned herein shall be
sufficiently evidenced by a Partnership Order or Partnership Request (unless other evidence in
respect thereof be herein specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant
Secretary of the General Partner;
(c) the Trustee may consult with counsel, and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Holders of Debt Securities of
any series pursuant to the provisions of this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it in good faith and
reasonably believed by it to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(f) prior to the occurrence of an Event of Default and after the curing of all Events of
Default which may have occurred, the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, approval or other paper or document, unless requested
in writing to do so by the Holders of a majority in aggregate principal amount of the then
Outstanding Debt Securities of a series affected by such matter; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is not, in the opinion of the Trustee,
reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such costs, expenses or liabilities as a
condition to so proceeding, and the reasonable expense of every such investigation shall be paid by
the Partnership or, if paid by the Trustee, shall be repaid by the Partnership upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed by it
with due care hereunder; and
(h) if any property other than cash shall at any time be subject to a Lien in favor of the
Holders, the Trustee, if and to the extent authorized by a receivership or bankruptcy court of
competent jurisdiction or by the supplemental instrument subjecting such property to such Lien,
shall be entitled to make advances for the purpose of preserving such property or of discharging
tax Liens or other prior Liens or encumbrances thereon.
38
Section 7.03.
Trustee Not Liable for Recitals in Indenture or in Debt Securities
. The recitals contained
herein, in the Debt Securities (except the Trustees certificate of authentication) shall be taken
as the statements of the Partnership, and the Trustee assumes no responsibility for the correctness
of the same. The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debt Securities of any series, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the Debt Securities and perform
its obligations hereunder, and that the statements made by it or to be made by it in a Statement of
Eligibility and Qualification on Form T-1 supplied to the Partnership are true and accurate. The
Trustee shall not be accountable for the use or application by the Partnership of any of the Debt
Securities or of the proceeds thereof.
Section 7.04.
Trustee, Paying Agent or Registrar May Own Debt Securities
. The Trustee or any paying
agent or Registrar, in its individual or any other capacity, may become the owner or pledgee of
Debt Securities and subject to the provisions of the TIA relating to conflicts of interest and
preferential claims may otherwise deal with the Partnership with the same rights it would have if
it were not Trustee, paying agent or Registrar.
Section 7.05.
Money Received by Trustee to Be Held in Trust
. Subject to the provisions of Section 11.05,
all money received by the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which it was received, but need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder. So long as no Event of Default shall have occurred and be continuing,
all interest allowed on any such money shall be paid from time to time to the Partnership upon a
Partnership Order.
Section 7.06.
Compensation and Reimbursement
. The Partnership covenants and agrees to pay in Dollars to
the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for
all services rendered by it hereunder (which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust), including, without limitation, paying agent
and Registrar, and, except as otherwise expressly provided herein, the Partnership will pay or
reimburse in Dollars the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its agents, attorneys
and counsel and of all Persons not regularly in its employ), including without limitation,
Section 6.02, except any such expense, disbursement or advances as may arise from its negligence,
willful misconduct or bad faith. The Partnership also covenants to indemnify and defend the
Trustee for, and to hold it harmless against, any loss, liability or expense incurred without
negligence, willful misconduct or bad faith on the part of the Trustee, arising out of or in
connection with the acceptance or administration of this trust or trusts hereunder, including the
reasonable costs and expenses of defending itself against any claim of liability in connection with
the exercise or performance of any of its powers or duties hereunder. The obligations of the
Partnership under this Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse
the Trustee for expenses, disbursements and advances shall constitute additional Debt hereunder and
shall survive the satisfaction and discharge of this Indenture. The Partnership and the Holders
agree that such additional Debt shall be secured by a Lien prior to that of the Debt Securities
upon all property and funds held or
39
collected by the Trustee, as such, except funds held in trust
for the payment of principal of, and premium, if any, or interest on, particular Debt Securities.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(e) or (f) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
Section 7.07.
Right of Trustee to Rely on an Officers Certificate Where No Other Evidence Specifically
Prescribed
. Except as otherwise provided in Section 7.01, whenever in the administration of
the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted by it under the provisions of this Indenture upon the
faith thereof.
Section 7.08.
Separate Trustee; Replacement of Trustee
. The Partnership may, but need not, appoint a
separate Trustee for any one or more series of Debt Securities. The Trustee may resign with
respect to one or more or all series of Debt Securities at any time by giving notice to the
Partnership. The Holders of a majority in principal
amount of the Debt Securities of a particular series may remove the Trustee for such series and
only such series by so notifying the Trustee and may appoint a successor Trustee. The Partnership
may at any time remove the Trustee with respect to the Debt Securities of any particular series by
giving the Trustee written notice of removal and thereupon appoint a successor trustee,
provided
that (i) no Default exists at time of such removal, (ii) such Trustee was not
appointed by the Holders of such series pursuant to this Section 7.8 and (iii) the corporate trust
business of the successor Trustee is of nationally recognized standing. The Partnership shall
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a Custodian takes charge of the Trustee or its property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Partnership or by the Holders of a majority in principal
amount of the Debt Securities of a particular series and such Holders do not reasonably promptly
appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the
Trustee in such event being referred to herein as the retiring Trustee), the Partnership shall
promptly appoint a successor Trustee. No resignation or removal of the Trustee and no appointment
of a successor Trustee shall become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of this Section 7.08.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Partnership. Thereupon the resignation or removal of the retiring Trustee shall
40
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders of Debt Securities of each applicable series. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, subject to the Lien provided for in
Section 7.06.
If a successor Trustee does not take office within 60 days after the retiring Trustee gives
notice of resignation or is removed, the retiring Trustee or the Holders of 25% in principal amount
of the Debt Securities of any applicable series may petition any court of competent jurisdiction
for the appointment of a successor Trustee for the Debt Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of Debt Securities of any
applicable series may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee for the Debt Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.08, the
Partnerships obligations under Section 7.06 shall continue for the benefit of the retiring
Trustee.
In the case of the appointment hereunder of a separate or successor Trustee with respect to
the Debt Securities of one or more series, the Partnership, any retiring Trustee and each successor
or separate Trustee with respect to the Debt Securities of any applicable series shall
execute and deliver an Indenture supplemental hereto (i) which shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties
of any retiring Trustee with respect to the Debt Securities of any series as to which any such
retiring Trustee is not retiring shall continue to be vested in such retiring Trustee and (ii) that
shall add to or change any of the provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental Indenture shall constitute such Trustees
co-trustees of the same trust and that each such separate, retiring or successor Trustee shall be
Trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee.
Section 7.09.
Successor Trustee by Merger
. If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation or banking association
without any further act shall be the successor Trustee.
In case at the time such successor or successors to the Trustee by merger, conversion or
consolidation shall succeed to the trusts created by this Indenture any of the Debt Securities
shall have been authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such Debt Securities so
authenticated; and in case at that time any of the Debt Securities shall not have been
authenticated, any successor to the Trustee may authenticate such Debt Securities either in the
name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the Debt Securities or in
this Indenture provided that the certificate of the Trustee shall have.
41
Section 7.10.
Eligibility; Disqualification
. The Trustee shall at all times satisfy the requirements of
Section 310(a) of the TIA. The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition. No obligor upon
the Debt Securities of a particular series or Person directly or indirectly controlling, controlled
by or under common control with such obligor shall serve as Trustee for the Debt Securities of such
series. The Trustee shall comply with Section 310(b) of the TIA; provided, however, that there
shall be excluded from the operation of Section 310(b)(1) of the TIA this Indenture or any
indenture or indentures under which other securities or certificates of interest or participation
in other securities of the Partnership are outstanding if the requirements for such exclusion set
forth in Section 310(b)(1) of the TIA are met.
Section 7.11.
Preferential Collection of Claims Against Partnership
. The Trustee shall comply with
Section 311(a) of the TIA, excluding any creditor relationship listed in Section 311(b) of the TIA.
A Trustee who has resigned or been removed shall be subject to Section 311(a) of the TIA to the
extent indicated therein.
Section 7.12.
Compliance with Tax Laws
. The Trustee hereby agrees to comply with all U.S. Federal income tax information reporting and
withholding requirements applicable to it with respect to payments of premium (if any) and interest
on the Debt Securities, whether acting as Trustee, Registrar, paying agent or otherwise with
respect to the Debt Securities.
ARTICLE VIII
CONCERNING THE HOLDERS
Section 8.01.
Evidence of Action by Holders
. Whenever in this Indenture it is provided that the Holders
of a specified percentage in aggregate principal amount of the Debt Securities of any or all series
may take action (including the making of any demand or request, the giving of any direction,
notice, consent or waiver or the taking of any other action) the fact that at the time of taking
any such action the Holders of such specified percentage have joined therein may be evidenced (a)
by any instrument or any number of instruments of similar tenor executed by Holders in Person or by
agent or proxy appointed in writing, (b) by the record of the Holders voting in favor thereof at
any meeting of Holders duly called and held in accordance with the provisions of this Indenture,
(c) by a combination of such instrument or instruments and any such record of such a meeting of
Holders or (d) in the case of Debt Securities evidenced by a Global Security, by any electronic
transmission or other message, whether or not in written format, that complies with the
Depositarys applicable procedures.
Section 8.02.
Proof of Execution of Instruments and of Holding of Debt Securities
. Subject to the
provisions of Sections 7.01, 7.02 and 13.09, proof of the execution of any instrument by a Holder
or his agent or proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee. The ownership of Debt Securities of any series shall be proved by the Debt Security
Register or by a certificate of the Registrar for such series. The Trustee may require such
additional proof of any matter referred to in this Section 8.02 as it shall deem necessary.
42
Section 8.03.
Who May Be Deemed Owner of Debt Securities
. Prior to due presentment for registration of
transfer of any Debt Security, the Partnership, the Subsidiary Guarantors, the Trustee, any paying
agent and any Registrar may deem and treat the Person in whose name any Debt Security shall be
registered upon the books of the Partnership as the absolute owner of such Debt Security (whether
or not such Debt Security shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the principal of and
premium, if any, and (subject to Section 2.12) interest on such Debt Security and for all other
purposes, and neither the Partnership nor the Subsidiary Guarantors nor the Trustee nor any paying
agent nor any Registrar shall be affected by any notice to the contrary; and all such payments so
made to any such Holder for the time being, or upon his order, shall be valid and, to the extent of
the sum or sums so paid, effectual to satisfy and discharge the liability for money payable upon
any such Debt Security.
None of the Partnership, the Subsidiary Guarantors, the Trustee or any agent of the Trustee,
any paying agent or any Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any records relating to such beneficial
ownership interests, or for any action taken or any failure to act by a Depositary with respect to
any Debt Securities including, without limitation, any failure of the owner of a beneficial
interest in such Debt Securities to receive any payments or notices provided hereunder or for the
selection of beneficial interests in such Debt Securities to be redeemed.
Section 8.04.
Instruments Executed by Holders Bind Future Holders
. At any time prior to (but not after)
the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the
Holders of the percentage in aggregate principal amount of the Debt Securities of any series
specified in this Indenture in connection with such action and subject to the following paragraph,
any Holder of a Debt Security which is shown by the evidence to be included in the Debt Securities
the Holders of which have consented to such action may, by filing written notice with the Trustee
at its corporate trust office and upon proof of holding as provided in Section 8.02, revoke such
action so far as concerns such Debt Security. Except as aforesaid any such action taken by the
Holder of any Debt Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Debt Security and of any Debt Security issued upon transfer thereof or
in exchange or substitution therefor, irrespective of whether or not any notation in regard thereto
is made upon such Debt Security or such other Debt Securities. Any action taken by the Holders of
the percentage in aggregate principal amount of the Debt Securities of any series specified in this
Indenture in connection with such action shall be conclusively binding upon the Partnership, the
Subsidiary Guarantors, the Trustee and the Holders of all the Debt Securities of such series.
The Partnership may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders of Debt Securities entitled to give their consent or take any other action
required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were Holders of Debt
Securities at such record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to take any such action,
whether or not such Persons continue to be Holders of Debt Securities after such record date. No
such consent shall be valid or effective for more than 120 days after such record date
43
unless the
consent of the Holders of the percentage in aggregate principal amount of the Debt Securities of
such series specified in this Indenture shall have been received within such 120-day period.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01.
Purposes for Which Supplemental Indenture May Be Entered into Without Consent of Holders
.
The Partnership, the Subsidiary Guarantors and the Trustee may from time to time and at any time,
without the consent of Holders, enter into an Indenture or Indentures supplemental hereto
(which shall conform to the provisions of the TIA as in force at the date of the execution thereof)
for one or more of the following purposes:
(a) to evidence the succession pursuant to Article X of another Person to the Partnership, or
successive successions, and the assumption by the Successor Partnership (as defined in
Section 10.01) of the covenants, agreements and obligations of the Partnership in this Indenture
and in the Debt Securities;
(b) to surrender any right or power herein conferred upon the Partnership or the Subsidiary
Guarantors, to add to the covenants of the Partnership or the Subsidiary Guarantors such further
covenants, restrictions, conditions or provisions for the protection of the Holders of all or any
series of Debt Securities (and if such covenants are to be for the benefit of less than all series
of Debt Securities, stating that such covenants are expressly being included solely for the benefit
of such series) as the Board of Directors shall consider to be for the protection of the Holders of
such Debt Securities, and to make the occurrence, or the occurrence and continuance, of a Default
in any of such additional covenants, restrictions, conditions or provisions a Default or an Event
of Default permitting the enforcement of all or any of the several remedies provided in this
Indenture; provided, that in respect of any such additional covenant, restriction, condition or
provision such supplemental Indenture may provide for a particular period of grace after Default
(which period may be shorter or longer than that allowed in the case of other Defaults) or may
provide for an immediate enforcement upon such Default or may limit the remedies available to the
Trustee upon such Default or may limit the right of the Holders of a majority in aggregate
principal amount of any or all series of Debt Securities to waive such default;
(c) to cure any ambiguity or omission or to correct or supplement any provision contained
herein, in any supplemental Indenture or in any Debt Securities of any series that may be defective
or inconsistent with any other provision contained herein, in any supplemental Indenture or in the
Debt Securities of such series;
(d) to permit the qualification of this Indenture or any Indenture supplemental hereto under
the TIA as then in effect, except that nothing herein contained shall permit or authorize the
inclusion in any Indenture supplemental hereto of the provisions referred to in Section 316(a)(2)
of the TIA;
(e) [intentionally omitted];
(f) to reflect the release of any Subsidiary Guarantor in accordance with Article XIV;
44
(g) to add Subsidiary Guarantors with respect to any or all of the Debt Securities or to
secure any or all of the Debt Securities or a Guarantee;
(h) to make any change that does not adversely affect the rights of any Holder;
(i) to add to, change or eliminate any of the provisions of this Indenture in respect of one
or more series of Debt Securities; provided, however, that any such addition, change or elimination
not otherwise permitted under this Section 9.01 shall neither apply to any Debt Security of any
series created prior to the execution of such supplemental Indenture and entitled to the benefit of
such provision nor modify the rights of the Holder of any such Debt Security
with respect to such provision or shall become effective only when there is no such Debt
Security Outstanding;
(j) to evidence and provide for the acceptance of appointment hereunder by a successor or
separate Trustee with respect to the Debt Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; and
(k) to establish the form or terms of Debt Securities of any series as permitted by Sections
2.01 and 2.03.
The Trustee is hereby authorized to join with the Partnership and the Subsidiary Guarantors in
the execution of any such supplemental Indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance, transfer, assignment,
mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into
any such supplemental Indenture which affects the Trustees own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental Indenture authorized by the provisions of this Section 9.01 may be executed
by the Partnership, the Subsidiary Guarantors and the Trustee without the consent of the Holders of
any of the Debt Securities at the time Outstanding, notwithstanding any of the provisions of
Section 9.02.
Section 9.02.
Modification of Indenture with Consent of Holders of Debt Securities
. Without notice to
any Holder but with the consent (evidenced as provided in Section 8.01) of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Debt Securities of each series
affected by such supplemental Indenture (including consents obtained in connection with a tender
offer or exchange offer for any such series of Debt Securities), the Partnership and the Subsidiary
Guarantors, when authorized by resolutions of the Board of Directors, and the Trustee may from time
to time and at any time enter into an Indenture or Indentures supplemental hereto (which shall
conform to the provisions of the TIA as in force at the date of execution thereof) for the purpose
of adding any provisions to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental Indenture or of modifying in any manner the rights of the Holders
of the Debt Securities of such series; provided, that no such supplemental Indenture, without the
consent of the Holders of each Debt Security so affected, shall:
45
(a) reduce the percentage in principal amount of Debt Securities of any series whose Holders
must consent to an amendment;
(b) reduce the rate of or extend the time for payment of interest on any Debt Security;
(c) reduce the principal of or extend the Stated Maturity of any Debt Security;
(d) reduce the premium payable upon the redemption of any Debt Security or change the time at
which any Debt Security may or shall be redeemed in accordance with Article III;
(e) make any Debt Security payable in currency other than the Dollar;
(f) impair the right of any Holder to receive payment of premium, if any, principal of and
interest on such Holders Debt Securities on or after the due dates therefor or to institute suit
for the enforcement of any payment on or with respect to such Holders Debt Securities;
(g) release any security that may have been granted in respect of the Debt Securities or a
Guarantee;
(h) make any change in Section 6.06 or this Section 9.02; or
(i) except as provided in Section 11.02(b) or 14.04, release any of the Subsidiary Guarantors
or modify a Guarantee in any manner adverse to the Holders.
A supplemental Indenture which changes or eliminates any covenant or other provision of this
Indenture which has been expressly included solely for the benefit of one or more particular series
of Debt Securities or which modifies the rights of the Holders of Debt Securities of such series
with respect to such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Debt Securities of any other series.
Upon the request of the Partnership, accompanied by a copy of resolutions of the Board of
Directors authorizing the execution of any such supplemental Indenture, and upon the filing with
the Trustee of evidence of the consent of Holders as aforesaid, the Trustee shall join with the
Partnership and the Subsidiary Guarantors in the execution of such supplemental Indenture unless
such supplemental Indenture affects the Trustees own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated
to enter into such supplemental Indenture.
It shall not be necessary for the consent of the Holders under this Section 9.02 to approve
the particular form of any proposed supplemental Indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
After an amendment under this Section 9.02 becomes effective, the Partnership shall mail to
Holders of Debt Securities of each series affected thereby a notice briefly describing such
amendment. The failure to give such notice to all such Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.02.
46
Section 9.03.
Effect of Supplemental Indentures
. Upon the execution of any supplemental Indenture
pursuant to the provisions of this Article IX, this Indenture shall be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Partnership, the Subsidiary
Guarantors and the Holders shall thereafter be determined, exercised and enforced hereunder subject
in all respects to such modifications and amendments, and all the terms and conditions of any such
supplemental Indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may receive an Officers
Certificate and an Opinion of Counsel as conclusive evidence that any such supplemental Indenture
complies with the provisions of this Article IX.
Section 9.04.
Debt Securities May Bear Notation of Changes by Supplemental Indentures
. Debt Securities
of any series authenticated and delivered after the execution of any supplemental Indenture
pursuant to the provisions of this Article IX may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such supplemental
Indenture. New Debt Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture contained in any such
supplemental Indenture may be prepared and executed by the Partnership, authenticated by the
Trustee and delivered in exchange for the Debt Securities of such series then Outstanding. Failure
to make the appropriate notation or to issue a new Debt Security of such series shall not affect
the validity of such amendment.
ARTICLE X
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 10.01.
Consolidations and Mergers of the Partnership
. The Partnership shall not consolidate or
amalgamate with or merge with or into any Person, or sell, convey, transfer, lease or otherwise
dispose of all or substantially all its assets to any Person, whether in a single transaction or a
series of related transactions, except (1) in accordance with the provisions of its partnership
agreement, and (2) unless: (a) either (i) the Partnership shall be the surviving Person in the
case of a merger or (ii) the resulting, surviving or transferee Person if other than the
Partnership (the Successor Partnership), shall be a partnership, limited liability company or
corporation organized and existing under the laws of the United States, any State thereof or the
District of Columbia and the Successor Partnership shall expressly assume, by an Indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee,
all the obligations of the Partnership under this Indenture and the Debt Securities according to
their tenor; (b) immediately after giving effect to such transaction or series of transactions (and
treating any Debt which becomes an obligation of the Successor Partnership or any Subsidiary of the
Successor Partnership as a result of such transaction or series of transactions as having been
incurred by the Successor Partnership or such Subsidiary at the time of such transaction), no
Default or Event of Default would occur or be continuing; (c) if the Partnership is not the
continuing Person, then each Subsidiary Guarantor, unless it has become the Successor Partnership,
shall confirm that its Guarantee shall continue to apply to the obligations under the Debt
Securities and this Indenture; and (d) the Partnership shall have delivered to the Trustee an
Officers Certificate and an Opinion of Counsel, each stating that such consolidation,
47
amalgamation, merger or disposition and such supplemental Indenture (if any) comply with this
Indenture.
Section 10.02.
Rights and Duties of Successor Partnership
. In case of any consolidation, amalgamation or merger where the Partnership is not the continuing
Person, or disposition of all or substantially all of the assets of the Partnership in accordance
with Section 10.01, the Successor Partnership shall succeed to and be substituted for the
Partnership with the same effect as if it had been named herein as the respective party to this
Indenture, and the predecessor entity shall be released from all liabilities and obligations under
this Indenture and the Debt Securities, except that no such release will occur in the case of a
lease of all or substantially all of the assets of the Partnership. The Successor Partnership
thereupon may cause to be signed, and may issue either in its own name or in the name of the
Partnership, any or all the Debt Securities issuable hereunder which theretofore shall not have
been signed by the Partnership and delivered to the Trustee; and, upon the order of the Successor
Partnership, instead of the Partnership, and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Debt Securities
which previously shall have been signed and delivered by the officers of the General Partner on
behalf of the Partnership to the Trustee for authentication, and any Debt Securities which the
Successor Partnership thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Debt Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Debt Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all such Debt Securities had been issued at the date of
the execution hereof.
In case of any such consolidation, amalgamation, merger, sale or other disposition such
changes in phraseology and form (but not in substance) may be made in the Debt Securities
thereafter to be issued as may be appropriate.
ARTICLE XI
SATISFACTION AND DISCHARGE OF
INDENTURE; DEFEASANCE; UNCLAIMED MONEY
Section 11.01.
Applicability of Article
. The provisions of this Article XI relating to either the
satisfaction and discharge or the defeasance of Debt Securities shall be applicable to each series
of Debt Securities except as otherwise specified pursuant to Section 2.03 for Debt Securities of
such series.
Section 11.02.
Satisfaction and Discharge of Indenture; Defeasance.
(a) (i) If at any time the Partnership shall have delivered to the Trustee for cancellation
all Debt Securities of any series theretofore authenticated and delivered (other than any Debt
Securities of such series which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.09 and Debt Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Partnership as provided in
Section 11.05) or (ii) all Debt Securities of such series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one year under arrangements
48
satisfactory
to the Trustee for the giving of notice of redemption, and (1) the Partnership shall irrevocably
deposit with the Trustee as trust funds money, U.S. Government Obligations on a combination thereof
sufficient to pay at Stated Maturity or upon redemption all Debt Securities
of such series not theretofore delivered to the Trustee for cancellation, including principal
and premium, if any, and interest due or to become due on such date of Stated Maturity or
Redemption Date, as the case may be, and (2) the Partnership shall deliver to the Trustee a
certificate to the effect described in Section 11.03(b) hereof, and if in the case described in
either of the preceding clauses (i) and (ii) the Partnership shall also pay or cause to be paid all
other sums then due and payable hereunder by the Partnership with respect to the Debt Securities of
such series, then this Indenture shall cease to be of further effect with respect to the Debt
Securities of such series, and the Trustee, on demand of the Partnership accompanied by an
Officers Certificate and an Opinion of Counsel and at the cost and expense of the Partnership,
shall execute proper instruments acknowledging satisfaction of and discharging this Indenture with
respect to the Debt Securities of such series.
(b) Subject to Sections 11.02(c), 11.03 and 11.07, the Partnership at any time may terminate,
with respect to Debt Securities of a particular series, all its obligations under the Debt
Securities of such series and this Indenture with respect to the Debt Securities of such series
(legal defeasance option) or the operation of (x) any covenant made applicable to such Debt
Securities pursuant to Section 2.03, (y) Sections 6.01(d), (g) and (h) (except to the extent
covenants or agreements referenced in Section 6.01(d) remain applicable) and (z), as they relate to
the Subsidiary Guarantors only, Sections 6.01(e) and (f) (covenant defeasance option). If the
Partnership exercises either its legal defeasance option or its covenant defeasance option with
respect to Debt Securities of a particular series that are entitled to the benefit of a Guarantee,
the Guarantee will terminate with respect to that series of Debt Securities and be automatically
released and discharged and any security that may have been granted in respect of such series shall
be automatically released. The Partnership may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option.
If the Partnership exercises its legal defeasance option, payment of the Debt Securities of
the defeased series may not be accelerated because of an Event of Default. If the Partnership
exercises its covenant defeasance option, payment of the Debt Securities of the defeased series may
not be accelerated because of an Event of Default specified in Sections 6.01(d), (g) and (h) and,
with respect to the Subsidiary Guarantors only, Sections 6.01(e) and (f) (except to the extent
covenants or agreements referenced in Section 6.01(d) remain applicable).
Upon satisfaction of the conditions set forth herein and upon request of the Partnership, the
Trustee shall acknowledge in writing the discharge of those obligations that the Partnership
terminates.
(c) Notwithstanding clauses (a) and (b) above, the Partnerships obligations in Sections 2.07,
2.09, 4.02, 4.04, 4.05(a), 4.06(a), 5.01, 7.06, 11.05, 11.06 and 11.07 shall survive until the Debt
Securities of the defeased series have been paid in full. Thereafter, the Partnerships
obligations in Sections 7.06, 11.05 and 11.06 shall survive.
49
Section 11.03.
Conditions of Defeasance
. The Partnership may exercise its legal defeasance option or its
covenant defeasance option with respect to Debt Securities of a particular series only if:
(a) the Partnership irrevocably deposits in trust with the Trustee money, U.S. Government
Obligations or a combination thereof for the payment of principal of, and premium, if any, and
interest on, the Debt Securities of such series to Stated Maturity or redemption, as the case may
be;
(b) the Partnership delivers to the Trustee a certificate from a nationally recognized firm of
independent accountants expressing their opinion that the payments of principal and interest when
due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money
without investment will provide cash at such times and in such amounts as will be sufficient to pay
the principal, premium, if any, and interest when due on all the Debt Securities of such series to
Stated Maturity or redemption, as the case may be;
(c) 91 days pass after the deposit is made and during the 91-day period no Default specified
in Section 6.01(e) or (f) with respect to the Partnership occurs which is continuing at the end of
the period;
(d) no Default has occurred and is continuing on the date of such deposit and after giving
effect thereto;
(e) the deposit does not constitute a default under any other agreement binding on the
Partnership;
(f) the Partnership delivers to the Trustee an Opinion of Counsel to the effect that the trust
resulting from the deposit does not constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940;
(g) in the event of the legal defeasance option, the Partnership shall have delivered to the
Trustee an Opinion of Counsel stating that the Partnership has received from the Internal Revenue
Service a ruling, or since the date of this Indenture there has been a change in the applicable
federal income tax law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of Debt Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred;
(h) in the event of the covenant defeasance option, the Partnership shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Holders of Debt Securities of such series
will not recognize income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such covenant defeasance had not
occurred; and
50
(i) the Partnership delivers to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent to the defeasance and discharge of the Debt
Securities of such series as contemplated by this Article XI have been complied with.
Before or after a deposit, the Partnership may make arrangements satisfactory to the Trustee
for the redemption of Debt Securities of such series at a future date in accordance with Article
III.
Section 11.04.
Application of Trust Money
. The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to this Article XI. It shall apply the deposited money and
the money from U.S. Government Obligations through any paying agent and in accordance with this
Indenture to the payment of principal of, and premium, if any, and interest on, the Debt Securities
of the defeased series.
Section 11.05.
Repayment to Partnership
. The Trustee and any paying agent shall promptly turn over to the
Partnership upon request any excess money or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and any paying agent shall pay
to the Partnership upon request any money held by them for the payment of principal, premium or
interest that remains unclaimed for two years, and, thereafter, Holders entitled to such money must
look to the Partnership for payment as general creditors.
Section 11.06.
Indemnity for U.S. Government Obligations
. The Partnership shall pay and shall indemnify
the Trustee and the Holders against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on such U.S.
Government Obligations.
Section 11.07.
Reinstatement
. If the Trustee or any paying agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article XI by reason of any legal proceeding or by
reason of any order or judgment of any court or government authority enjoining, restraining or
otherwise prohibiting such application, the Partnerships obligations under this Indenture and the
Debt Securities of the defeased series shall be revived and reinstated as though no deposit had
occurred pursuant to this Article XI until such time as the Trustee or any paying agent is
permitted to apply all such money or U.S. Government Obligations in accordance with this Article
XI.
ARTICLE XII
[RESERVED]
This Article XII has been intentionally omitted.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01.
Successors and Assigns of Partnership Bound by Indenture
. All the covenants, stipulations, promises and agreements in this Indenture contained by or in
behalf of
51
the Partnership, the Subsidiary Guarantors or the Trustee shall bind their respective
successors and assigns, whether so expressed or not.
Section 13.02.
Acts of Board, Committee or Officer of Successor Partnership Valid
. Any act or proceeding
authorized or required by any provision of this Indenture to be done or performed by any board,
committee or officer of the General Partner on behalf of the Partnership shall and may be done and
performed with like force and effect by the like board, committee or officer of any Successor
Partnership.
Section 13.03.
Required Notices or Demands
. Any notice or communication by the Partnership, the
Subsidiary Guarantors or the Trustee to the others is duly given if in writing (in the English
language) and delivered in Person or mailed by registered or certified mail (return receipt
requested), telecopier or overnight air courier guaranteeing next day delivery, to the others
address:
If to the Partnership or any of the Subsidiary Guarantors:
Spectra Energy Partners, LP
5400 Westheimer Court
Houston, Texas 77056
Attention: [_________]
Telecopy No. [__________]
If to the Trustee:
Wells Fargo Bank, N.A.
1445 Ross Avenue, 2
nd
Floor
Dallas, Texas 75202-2812
Attention: Corporate Trust Services
Telecopy No.: (214) 777-4086
The Partnership, the Subsidiary Guarantors or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or communications.
All notices and communications shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; on the first Business Day on or after being sent, if telecopied and the sender
receives confirmation of successful transmission; and the next Business Day after timely delivery
to the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice required or permitted to a Holder by the Partnership, the Subsidiary Guarantors or
the Trustee pursuant to the provisions of this Indenture shall be deemed to be properly mailed by
being deposited postage prepaid in a post office letter box in the United States addressed to such
Holder at the address of such Holder as shown on the Debt Security
Register. Any report pursuant to Section 313 of the TIA shall be transmitted in compliance
with subsection (c) therein.
52
Notwithstanding the foregoing, any notice to Holders of Floating Rate Debt Securities
regarding the determination of a periodic rate of interest, if such notice is required pursuant to
Section 2.03, shall be sufficiently given if given in the manner specified pursuant to
Section 2.03.
In the event of suspension of regular mail service or by reason of any other cause it shall be
impracticable to give notice by mail, then such notification as shall be given with the approval of
the Trustee shall constitute sufficient notice for every purpose hereunder.
In the event it shall be impracticable to give notice by publication, then such notification
as shall be given with the approval of the Trustee shall constitute sufficient notice for every
purpose hereunder.
Failure to mail a notice or communication to a Holder or any defect in it or any defect in any
notice by publication as to a Holder shall not affect the sufficiency of such notice with respect
to other Holders. If a notice or communication is mailed or published in the manner provided
above, it is conclusively presumed duly given.
Section 13.04.
Indenture and Debt Securities to Be Construed in Accordance with the Laws of the State of New
York
. THIS INDENTURE, EACH DEBT SECURITY AND EACH GUARANTEE SHALL BE DEEMED TO BE NEW YORK
CONTRACTS, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SAID STATE.
Section 13.05.
Officers Certificate and Opinion of Counsel to Be Furnished upon Application or Demand by the
Partnership
. Upon any application or demand by the Partnership to the Trustee to take any
action under any of the provisions of this Indenture, the Partnership shall furnish to the Trustee
an Officers Certificate stating that all covenants and conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating
that, in the opinion of such counsel, all such covenants and conditions precedent have been
complied with, except that in the case of any such application or demand as to which the furnishing
of such document is specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture shall include
(a) a statement that the Person making such certificate or opinion has read such covenant or
condition, (b) 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, (c) 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 (d) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied with.
Section 13.06.
Payments Due on Legal Holidays
. In any case where the date of maturity of interest on or
principal of and premium, if any, on the Debt Securities of a series
53
shall not be a Business Day at
any Place of Payment for the Debt Securities of such series, then payment of interest or principal
and premium, if any, need not be made on such date at such Place of Payment, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and effect as if made on
the date of maturity, and no interest shall accrue for the period after such date. If a record
date is not a Business Day, the record date shall not be affected.
Section 13.07.
Provisions Required by TIA to Control
. If and to the extent that 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 to 318, inclusive, of the TIA,
such required provision shall control.
Section 13.08.
Computation of Interest on Debt Securities
. Interest, if any, on the Debt Securities shall
be computed on the basis of a 360-day year of twelve 30-day months, except as may otherwise be
provided pursuant to Section 2.03.
Section 13.09.
Rules by Trustee, Paying Agent and Registrar
. The Trustee may make reasonable rules for
action by or a meeting of Holders. The Registrar and any paying agent may make reasonable rules
for their functions.
Section 13.10.
No Recourse Against Others
. The partners, directors, officers, employees, incorporators
and members of each of the Partnership and the Subsidiary Guarantors, as such, shall have no
liability for any obligations of the Subsidiary Guarantors or the Partnership under the Debt
Securities, this Indenture or any Guarantee or for any claim based on, in respect of, or by reason
of, such obligations or their creation. By accepting a Debt Security, each Holder shall waive and
release all such liability. The waiver and release shall be part of the consideration for the
issue of the Debt Securities.
Section 13.11.
Severability
. In case any provision in this Indenture or the Debt Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 13.12.
Effect of Headings
. The article and section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 13.13.
Indenture May Be Executed in Counterparts
. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall together constitute
but one and the same instrument.
ARTICLE XIV
GUARANTEE
Section 14.01.
Unconditional Guarantee
.
(a) Notwithstanding any provision of this Article XIV to the contrary, the provisions of this
Article XIV shall be applicable only to, and inure solely to the benefit of, the Debt Securities of
any series designated, pursuant to Section 2.03, as entitled to the benefits of the Guarantee of
any of the Subsidiary Guarantors.
54
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and
absolutely guarantees (the Guarantee) to the Holders and to the Trustee the due and punctual
payment of the principal of, and premium, if any, and interest on the Debt Securities and all other
amounts due and payable under this Indenture and the Debt Securities by the Partnership, when and
as such principal, premium, if any, interest and other amounts shall become due and payable,
whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise,
according to the terms of the Debt Securities and this Indenture, subject to the limitations set
forth in Section 14.03.
(c) Failing payment when due of any amount guaranteed pursuant to its Guarantee, for whatever
reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same
immediately. The Guarantee hereunder is intended to be a general, unsecured, senior obligation of
each of the Subsidiary Guarantors and will rank
pari passu
in right of payment with all Debt of
such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to
the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder
shall be full, unconditional and absolute, irrespective of the validity, regularity or
enforceability of the Debt Securities, its Guarantee (including the Guarantee of any other
Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver
or consent by the Trustee or any Holder of the Debt Securities with respect to any provisions
hereof or thereof, the recovery of any judgment against the Partnership or any other Subsidiary
Guarantor, or any action to enforce the same or any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of any of the Subsidiary Guarantors. Each of
the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal
of, or premium, if any, or interest on the Debt Securities, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted
by the Trustee on behalf of the Holders or, subject to Section 6.04, by the Holders, on the terms
and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce
its Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XIV shall be as
aforesaid full, unconditional and absolute and shall not be impaired, modified, released or
limited by any occurrence or condition whatsoever, including, without limitation, (A) any
compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any
change in, any of the obligations and liabilities of the Partnership or any of the Subsidiary
Guarantors contained in the Debt Securities or this Indenture, (B) any impairment, modification,
release or limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any
of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the
operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other
statute or from the decision of any court, (C) the assertion or exercise by the Partnership, any of
the Subsidiary Guarantors or the Trustee of any rights or remedies under the Debt Securities or
this Indenture or their delay in or failure to assert or exercise any such rights or remedies,
(D) the assignment or the purported assignment of any property as security for the Debt Securities,
including all or any part of the rights of the Partnership or any of the Subsidiary Guarantors
under this Indenture, (E) the extension of the time for payment by the Partnership or any of the
Subsidiary Guarantors of any payments or other sums or any part thereof owing or payable under any
of the terms and provisions of the Debt Securities or this Indenture or of the
55
time for performance
by the Partnership or any of the Subsidiary Guarantors of any other obligations under or arising
out of any such terms and provisions or the extension or the renewal of any thereof, (F) the
modification or amendment (whether material or otherwise) of any duty, agreement or obligation of
the Partnership or any of the Subsidiary Guarantors set forth in this Indenture, (G) the voluntary
or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of
the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other
similar proceeding affecting, the Partnership or any of the Subsidiary Guarantors or any of their
respective assets, or the disaffirmance of the Debt Securities, the Guarantee or this Indenture in
any such proceeding, (H) the release or discharge of the Partnership or any of the Subsidiary
Guarantors from the performance or observance of any agreement, covenant, term or condition
contained in any of such instruments by operation of law, (I) the unenforceability of the Debt
Securities, any other Guarantee or this Indenture or (J) any other circumstances (other than
payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might
otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (A) waives diligence, presentment, demand of
payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the
Partnership or any of the other Subsidiary Guarantors, and all demands whatsoever, (B) acknowledges
that any agreement, instrument or document evidencing its Guarantee may be transferred and that the
benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or
document evidencing the Guarantee without notice to it and (C) covenants that its Guarantee will
not be discharged except by complete performance of the Guarantee. Each of the Subsidiary
Guarantors further agrees that if at any time all or any part of any payment theretofore applied by
any Person to its Guarantee is, or must be, rescinded or returned for any reason whatsoever,
including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or
any of the other Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or
must be rescinded or returned, be deemed to have continued in existence notwithstanding such
application, and the Guarantee shall continue to be effective or be reinstated, as the case may be,
as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the
Trustee against the Partnership in respect of any amounts paid by such Subsidiary Guarantor
pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor,
shall not be entitled to enforce or to receive any payments arising out of, or based upon, such
right of subrogation until all of the Debt Securities and each Guarantee shall have been paid in
full or discharged.
Section 14.02.
Execution and Delivery of Notation of Guarantee
. To further evidence its Guarantee set
forth in Section 14.01, each of the Subsidiary Guarantors hereby agrees that a notation relating to
such Guarantee, substantially in the form attached hereto as Annex A, shall be endorsed on each
Debt Security entitled to the benefits of the Guarantee authenticated and delivered by the Trustee
and executed by either manual or facsimile signature of an officer of such Subsidiary Guarantor, or
in the case of a Subsidiary Guarantor that is a limited partnership, an officer of the general
partner of such Subsidiary Guarantor. Each of the Subsidiary Guarantors hereby agrees that its
Guarantee set forth in Section 14.01 shall remain in full force
56
and effect notwithstanding any
failure to endorse on each Debt Security a notation relating to the Guarantee. If any officer of
any Subsidiary Guarantor, or in the case of a Subsidiary Guarantor that is a limited partnership,
any officer of the general partner of the Subsidiary Guarantor, whose signature is on this
Indenture or a Debt Security no longer holds that office at the time the Trustee authenticates such
Debt Security or at any time thereafter, the Guarantee of such Debt Security shall be valid
nevertheless. The delivery of any Debt Security by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of
each of the Subsidiary Guarantors.
The Trustee hereby accepts the trusts in this Indenture upon the terms and conditions herein
set forth.
Section 14.03.
Limitation on Subsidiary Guarantors Liability
. Each Subsidiary Guarantor and by its
acceptance hereof each Holder of a Debt Security entitled to the benefits of a Guarantee hereby
confirm that it is the intention of all such parties that the guarantee by such Subsidiary
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or conveyance for purposes
of any federal or state law. To effectuate the foregoing intention, the Holders of a Debt Security
entitled to the benefits of a Guarantee and the Subsidiary Guarantors hereby irrevocably agree that
the obligations of each Subsidiary Guarantor under its Guarantee shall be limited to the maximum
amount as will, after giving effect to all other contingent and fixed liabilities of such
Subsidiary Guarantor and to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its
Guarantee, result in the obligations of such Subsidiary Guarantor under its Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under federal or state law.
Section 14.04.
Release of Subsidiary Guarantors from Guarantee
.
(a) Notwithstanding any other provisions of this Indenture, the Guarantee of any Subsidiary
Guarantor may be released upon the terms and subject to the conditions set forth in
Section 11.02(b) and in this Section 14.04. Provided that no Default shall have occurred and
shall be continuing under this Indenture, any Guarantee incurred by a Subsidiary Guarantor pursuant
to this Article XIV shall be unconditionally released and discharged (i) automatically upon (A) any
sale, exchange or transfer, whether by way of merger or otherwise, to any Person that is not an
Affiliate of the Partnership, of all of the Partnerships direct or indirect limited liability
company or other equity interests in such Subsidiary Guarantor (provided such sale, exchange or
transfer is not prohibited by this Indenture) or (B) the merger of such Subsidiary Guarantor into
the Partnership or any other Subsidiary Guarantor or the liquidation and dissolution of such
Subsidiary Guarantor (in each case to the extent not prohibited by this Indenture) or
(ii) following delivery of a written notice of such release or discharge by the Partnership to the
Trustee, upon the release or discharge of all guarantees by such Subsidiary Guarantor of any Debt
of the Partnership other than obligations arising under this Indenture and any Debt Securities
issued hereunder, except a discharge or release by or as a result of payment under such guarantees.
(b) The Trustee shall deliver an appropriate instrument evidencing any release of a Subsidiary
Guarantor from its Guarantee upon receipt of a Partnership Request accompanied by
57
an Officers
Certificate and an Opinion of Counsel to the effect that the Subsidiary Guarantor is entitled to
such release in accordance with the provisions of this Indenture. Any Subsidiary Guarantor not so
released shall remain liable for the full amount of principal of and premium, if any, and interest
on the Debt Securities entitled to the benefits of such Guarantee as provided in this Indenture,
subject to the limitations of Section 14.03.
(c) If at any time following any release and discharge of the Guarantee of a Subsidiary
Guarantor pursuant to the provisions of clause (ii) of Section 14.04(a) such Subsidiary Guarantor
shall again guarantee any Debt of the Partnership other than obligations arising under this
Indenture and any Debt Securities issued hereunder, thereupon the Partnership shall cause such
Subsidiary Guarantor to execute and deliver to the Trustee an Indenture supplemental hereto, in
form satisfactory to the Trustee, in order to effect its Guarantee once again.
Section 14.05.
Subsidiary Guarantor Contribution
. In order to provide for just and equitable contribution
among the Subsidiary Guarantors, the Subsidiary Guarantors hereby agree,
inter se
, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a Funding Guarantor) under
its Guarantee, such Funding Guarantor shall be entitled to a contribution from each other
Subsidiary Guarantor (if any) in a
pro rata
amount based on the net assets of each Subsidiary
Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by that
Funding Guarantor in discharging the Partnerships obligations with respect to the Debt Securities
or any other Subsidiary Guarantors obligations with respect to its Guarantee.
[Remainder of This Page Intentionally Left Blank.]
58
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as
of the day and year first above written.
|
|
|
|
|
|
|
|
|
SPECTRA ENERGY PARTNERS, LP
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
SPECTRA ENERGY PARTNERS (DE)
GP, LP
|
|
|
|
|
|
|
its General Partner
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
SPECTRA ENERGY PARTNERS GP, LLC
its General Partner
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Subsidiary
Guarantors]
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
WELLS FARGO BANK, N.A.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
Title:
|
|
|
|
|
59
ANNEX A
NOTATION OF GUARANTEE
Each of the Subsidiary Guarantors (which term includes any successor Person under the
Indenture), has fully, unconditionally and absolutely guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture, the due and punctual payment of the
principal of, and premium, if any, and interest on the Debt Securities and all other amounts due
and payable under the Indenture and the Debt Securities by the Partnership.
The obligations of each of the Subsidiary Guarantors to the Holders of Debt Securities and to
the Trustee pursuant to its Guarantee and the Indenture are expressly set forth in Article XIV of
the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee.
|
|
|
|
|
|
|
|
|
[Subsidiary Guarantors]
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
Title:
|
|
|
|
|
A-1
Exhibit 4.2
SPECTRA ENERGY PARTNERS, LP
as Issuer,
ANY SUBSIDIARY GUARANTORS PARTY HERETO,
and
WELLS FARGO BANK, N.A.,
as Trustee
INDENTURE
Dated as of
, 2009
Debt Securities
CROSS-REFERENCE TABLE
|
|
|
TIA Section
|
|
Indenture Section
|
310 (a)
|
|
7.10
|
(b)
|
|
7.10
|
(c)
|
|
N.A.
|
311 (a)
|
|
7.11
|
(b)
|
|
7.11
|
(c)
|
|
N.A.
|
312 (a)
|
|
5.01
|
(b)
|
|
5.02
|
(c)
|
|
5.02
|
313 (a)
|
|
5.03
|
(b)
|
|
5.03
|
(c)
|
|
13.03
|
(d)
|
|
5.03
|
314 (a)
|
|
4.05, 4.06
|
(b)
|
|
N.A.
|
(c)(1)
|
|
13.05
|
(c)(2)
|
|
13.05
|
(c)(3)
|
|
N.A.
|
(d)
|
|
N.A.
|
(e)
|
|
13.05
|
(f)
|
|
N.A.
|
315 (a)
|
|
7.01
|
(b)
|
|
6.07 & 13.03
|
(c)
|
|
7.01
|
(d)
|
|
7.01
|
(e)
|
|
6.08
|
316 (a) (last sentence)
|
|
1.01
|
(a)(1)(A)
|
|
6.06
|
(a)(1)(B)
|
|
6.06
|
(a)(2)
|
|
9.01(d)
|
(b)
|
|
6.04
|
(c)
|
|
5.04
|
317 (a)(1)
|
|
6.02
|
(a)(2)
|
|
6.02
|
(b)
|
|
4.04
|
318 (a)
|
|
13.07
|
N.A. means Not Applicable
NOTE: This Cross-Reference table shall not, for any purpose, be deemed part of this Indenture.
i
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
ARTICLE I
|
DEFINITIONS AND INCORPORATION BY REFERENCE
|
|
|
|
|
|
Section 1.01. Definitions
|
|
|
1
|
|
Section 1.02. Other Definitions
|
|
|
7
|
|
Section 1.03. Incorporation by Reference of Trust Indenture Act
|
|
|
7
|
|
Section 1.04. Rules of Construction
|
|
|
7
|
|
|
|
|
|
|
ARTICLE II
|
DEBT SECURITIES
|
|
|
|
|
|
Section 2.01. Forms Generally
|
|
|
8
|
|
Section 2.02. Form of Trustees Certificate of Authentication
|
|
|
8
|
|
Section 2.03. Principal Amount; Issuable in Series
|
|
|
9
|
|
Section 2.04. Execution of Debt Securities
|
|
|
11
|
|
Section 2.05. Authentication and Delivery of Debt Securities
|
|
|
11
|
|
Section 2.06. Denomination of Debt Securities
|
|
|
13
|
|
Section 2.07. Registration of Transfer and Exchange
|
|
|
13
|
|
Section 2.08. Temporary Debt Securities
|
|
|
14
|
|
Section 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities
|
|
|
15
|
|
Section 2.10. Cancellation of Surrendered Debt Securities
|
|
|
16
|
|
Section 2.11. Provisions of the Indenture and Debt Securities for the Sole Benefit of the
Parties and the Holders
|
|
|
16
|
|
Section 2.12. Payment of Interest; Interest Rights Preserved
|
|
|
16
|
|
Section 2.13. Securities Denominated in Dollars
|
|
|
17
|
|
Section 2.14. Wire Transfers
|
|
|
17
|
|
Section 2.15. Securities Issuable in the Form of a Global Security
|
|
|
17
|
|
Section 2.16. Medium Term Securities
|
|
|
19
|
|
Section 2.17. Defaulted Interest
|
|
|
20
|
|
Section 2.18. CUSIP and ISIN Numbers
|
|
|
21
|
|
|
|
|
|
|
ARTICLE III
|
REDEMPTION OF DEBT SECURITIES
|
|
|
|
|
|
Section 3.01. Applicability of Article
|
|
|
21
|
|
Section 3.02. Notice of Redemption; Selection of Debt Securities
|
|
|
21
|
|
Section 3.03. Payment of Debt Securities Called for Redemption
|
|
|
23
|
|
Section 3.04. Mandatory and Optional Sinking Funds
|
|
|
23
|
|
Section 3.05. Redemption of Debt Securities for Sinking Fund
|
|
|
24
|
|
|
|
|
|
|
ARTICLE IV
|
PARTICULAR COVENANTS OF THE PARTNERSHIP
|
|
|
|
|
|
Section 4.01. Payment of Principal of, and Premium, If Any, and Interest on, Debt
Securities
|
|
|
25
|
|
ii
|
|
|
|
|
|
|
Page
|
|
Section 4.02. Maintenance of Offices or Agencies for Registration of Transfer, Exchange
and Payment of Debt Securities
|
|
|
26
|
|
Section 4.03. Appointment to Fill a Vacancy in the Office of Trustee
|
|
|
26
|
|
Section 4.04. Duties of Paying Agents, etc.
|
|
|
26
|
|
Section 4.05. SEC Reports; Financial Statements
|
|
|
27
|
|
Section 4.06. Compliance Certificate
|
|
|
28
|
|
Section 4.07. Further Instruments and Acts
|
|
|
28
|
|
Section 4.08. Existence
|
|
|
28
|
|
Section 4.09. Maintenance of Properties
|
|
|
29
|
|
Section 4.10. Payment of Taxes and Other Claims
|
|
|
29
|
|
Section 4.11. Waiver of Certain Covenants
|
|
|
29
|
|
|
|
|
|
|
ARTICLE V
|
HOLDERS LISTS AND REPORTS BY THE TRUSTEE
|
|
|
|
|
|
Section 5.01. Partnership to Furnish Trustee Information as to Names and Addresses of
Holders; Preservation of Information
|
|
|
29
|
|
Section 5.02. Communications to Holders
|
|
|
30
|
|
Section 5.03. Reports by Trustee
|
|
|
30
|
|
Section 5.04. Record Dates for Action by Holders
|
|
|
30
|
|
|
|
|
|
|
ARTICLE VI
|
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
|
|
|
|
|
|
|
|
|
|
Section 6.01. Events of Default
|
|
|
31
|
|
Section 6.02. Collection of Debt by Trustee, etc.
|
|
|
33
|
|
Section 6.03. Application of Money Collected by Trustee
|
|
|
34
|
|
Section 6.04. Limitation on Suits by Holders
|
|
|
35
|
|
Section 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver
of Default
|
|
|
36
|
|
Section 6.06. Rights of Holders of Majority in Principal Amount of Debt Securities to
Direct Trustee and to Waive Default
|
|
|
36
|
|
Section 6.07. Trustee to Give Notice of Defaults Known to It, but May Withhold Such
Notice in Certain Circumstances
|
|
|
36
|
|
Section 6.08. Requirement of an Undertaking to Pay Costs in Certain Suits under the
Indenture or Against the Trustee
|
|
|
37
|
|
|
|
|
|
|
ARTICLE VII
|
CONCERNING THE TRUSTEE
|
|
|
|
|
|
Section 7.01. Certain Duties and Responsibilities
|
|
|
37
|
|
Section 7.02. Certain Rights of Trustee
|
|
|
38
|
|
Section 7.03. Trustee Not Liable for Recitals in Indenture or in Debt Securities
|
|
|
39
|
|
Section 7.04. Trustee, Paying Agent or Registrar May Own Debt Securities
|
|
|
40
|
|
Section 7.05. Money Received by Trustee to Be Held in Trust
|
|
|
40
|
|
Section 7.06. Compensation and Reimbursement
|
|
|
40
|
|
Section 7.07. Right of Trustee to Rely on an Officers Certificate Where No Other
Evidence Specifically Prescribed
|
|
|
40
|
|
Section 7.08. Separate Trustee; Replacement of Trustee
|
|
|
41
|
|
iii
|
|
|
|
|
|
|
Page
|
|
Section 7.09. Successor Trustee by Merger
|
|
|
42
|
|
Section 7.10. Eligibility; Disqualification
|
|
|
42
|
|
Section 7.11. Preferential Collection of Claims Against Partnership
|
|
|
43
|
|
Section 7.12. Compliance with Tax Laws
|
|
|
43
|
|
|
|
|
|
|
ARTICLE VIII
|
CONCERNING THE HOLDERS
|
|
|
|
|
|
Section 8.01. Evidence of Action by Holders
|
|
|
43
|
|
Section 8.02. Proof of Execution of Instruments and of Holding of Debt Securities
|
|
|
43
|
|
Section 8.03. Who May Be Deemed Owner of Debt Securities
|
|
|
43
|
|
Section 8.04. Instruments Executed by Holders Bind Future Holders
|
|
|
44
|
|
|
|
|
|
|
ARTICLE IX
|
SUPPLEMENTAL INDENTURES
|
|
|
|
|
|
Section 9.01. Purposes for Which Supplemental Indenture May Be Entered into Without
Consent of Holders
|
|
|
44
|
|
Section 9.02. Modification of Indenture with Consent of Holders of Debt Securities
|
|
|
46
|
|
Section 9.03. Effect of Supplemental Indentures
|
|
|
48
|
|
Section 9.04. Debt Securities May Bear Notation of Changes by Supplemental Indentures
|
|
|
48
|
|
|
|
|
|
|
ARTICLE X
|
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
|
|
|
|
|
|
Section 10.01. Consolidations and Mergers of the Partnership
|
|
|
48
|
|
Section 10.02. Rights and Duties of Successor Partnership
|
|
|
49
|
|
|
|
|
|
|
ARTICLE XI
|
SATISFACTION AND DISCHARGE OF
|
INDENTURE; DEFEASANCE; UNCLAIMED MONEY
|
|
|
|
|
|
Section 11.01. Applicability of Article
|
|
|
49
|
|
Section 11.02. Satisfaction and Discharge of Indenture; Defeasance
|
|
|
50
|
|
Section 11.03. Conditions of Defeasance
|
|
|
51
|
|
Section 11.04. Application of Trust Money
|
|
|
52
|
|
Section 11.05. Repayment to Partnership
|
|
|
52
|
|
Section 11.06. Indemnity for U.S. Government Obligations
|
|
|
52
|
|
Section 11.07. Reinstatement
|
|
|
52
|
|
|
|
|
|
|
ARTICLE XII
|
SUBORDINATION OF DEBT SECURITIES AND GUARANTEE
|
|
|
|
|
|
Section 12.01 Applicability of Article; Agreement to Subordinate
|
|
|
53
|
|
Section 12.02 Liquidation, Dissolution, Bankruptcy
|
|
|
53
|
|
Section 12.03 Default on Senior Indebtedness
|
|
|
53
|
|
Section 12.04 Acceleration of Payment of Debt Securities
|
|
|
54
|
|
Section 12.05 When Distribution Must Be Paid Over
|
|
|
54
|
|
Section 12.06 Subrogation
|
|
|
55
|
|
iv
|
|
|
|
|
|
|
Page
|
|
Section 12.07 Relative Rights
|
|
|
55
|
|
Section 12.08 Subordination May Not Be Impaired by Partnership
|
|
|
55
|
|
Section 12.09 Rights of Trustee and Paying Agent
|
|
|
55
|
|
Section 12.10 Distribution or Notice to Representative
|
|
|
56
|
|
Section 12.11 Article XII Not to Prevent Defaults or Limit Right to Accelerate
|
|
|
56
|
|
Section 12.12 Trust Moneys Not Subordinated
|
|
|
56
|
|
Section 12.13 Trustee Entitled to Rely
|
|
|
56
|
|
Section 12.14 Trustee to Effectuate Subordination
|
|
|
56
|
|
Section 12.15 Trustee Not Fiduciary for Holders of Senior Indebtedness
|
|
|
57
|
|
Section 12.16 Reliance by Holders of Senior Indebtedness on Subordination Provisions
|
|
|
57
|
|
|
|
|
|
|
ARTICLE XIII
|
MISCELLANEOUS PROVISIONS
|
|
|
|
|
|
Section 13.01. Successors and Assigns of Partnership Bound by Indenture
|
|
|
57
|
|
Section 13.02. Acts of Board, Committee or Officer of Successor Partnership Valid
|
|
|
57
|
|
Section 13.03. Required Notices or Demands
|
|
|
57
|
|
Section 13.04. Indenture and Debt Securities to Be Construed in Accordance with the Laws
of the State of New York
|
|
|
58
|
|
Section 13.05. Officers Certificate and Opinion of Counsel to Be Furnished upon
Application or Demand by the Partnership
|
|
|
59
|
|
Section 13.06. Payments Due on Legal Holidays
|
|
|
59
|
|
Section 13.07. Provisions Required by TIA to Control
|
|
|
59
|
|
Section 13.08. Computation of Interest on Debt Securities
|
|
|
59
|
|
Section 13.09. Rules by Trustee, Paying Agent and Registrar
|
|
|
59
|
|
Section 13.10. No Recourse Against Others
|
|
|
60
|
|
Section 13.11. Severability
|
|
|
60
|
|
Section 13.12. Effect of Headings
|
|
|
60
|
|
Section 13.13. Indenture May Be Executed in Counterparts
|
|
|
60
|
|
|
|
|
|
|
ARTICLE XIV
|
GUARANTEE
|
Section 14.01. Unconditional Guarantee
|
|
|
60
|
|
Section 14.02. Execution and Delivery of Guarantee
|
|
|
62
|
|
Section 14.03. Limitation on Subsidiary Guarantors Liability
|
|
|
62
|
|
Section 14.04. Release of Subsidiary Guarantors from Guarantee
|
|
|
63
|
|
Section 14.05. Subsidiary Guarantor Contribution
|
|
|
63
|
|
Notation of Guarantee Annex A
v
THIS INDENTURE dated as of ___, 2009 is among Spectra Energy Partners, LP, a Delaware
limited partnership (the Partnership), any Subsidiary
Guarantors (as defined herein) that may become parties hereto, and Wells Fargo Bank, N.A., a national banking
association, as trustee (the Trustee).
RECITALS
OF THE PARTNERSHIP AND ANY SUBSIDIARY GUARANTORS
The
Partnership and any Subsidiary Guarantors have duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of the Partnerships debentures,
notes, bonds or other evidences of indebtedness to be issued in one or more series unlimited as to
principal amount (herein called the Debt Securities), which Debt Securities may be guaranteed by
each of the Subsidiary Guarantors and may be subordinated in right of payment to Senior
Indebtedness, as in this Indenture provided.
The
Partnership and any Subsidiary Guarantors are members of the same consolidated group of
companies. Any Subsidiary Guarantors will derive direct and indirect economic benefit from the
issuance of the Debt Securities. Accordingly, any Subsidiary Guarantor has duly authorized the
execution and delivery of this Indenture to provide for its full, unconditional and joint and
several guarantee of the Debt Securities to the extent provided in or pursuant to this Indenture.
All
things necessary to make this Indenture a valid agreement of the
Partnership and any
Subsidiary Guarantors, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
That in order to declare the terms and conditions upon which the Debt Securities are
authenticated, issued and delivered, and in consideration of the premises, and of the purchase and
acceptance of the Debt Securities by the holders thereof, the
Partnership, any Subsidiary
Guarantors and the Trustee covenant and agree with one other, for the benefit of the respective
Holders from time to time of the Debt Securities or any series thereof, as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01.
Definitions
.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, control when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms controlling and
controlled have meanings correlative to the foregoing. The Trustee may request and may
conclusively rely upon an Officers Certificate to determine whether any Person is an Affiliate of
any specified Person.
Agent means any Registrar or paying agent.
Bankruptcy Law means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.
Board of Directors means the board of directors of the General Partner or any authorized
committee of the board of directors of the General Partner or any directors and/or officers of the
General Partner to whom such board of directors or such committee shall have duly delegated its
authority to act hereunder. If the Partnership shall change its form of entity to other than a
limited partnership, the references to the board of directors of the General Partner shall mean the
board of directors (or other comparable governing body) of the Partnership.
Business Day means any day other than a Legal Holiday.
The term capital stock of any Person means and includes any and all shares, rights to
purchase, warrants or options (whether or not currently exercisable), participations or other
equivalents of or interests in (however designated) the equity (which includes, but is not limited
to, common stock, preferred stock and partnership and joint venture interests) of such Person
(excluding any debt securities that are convertible into, or exchangeable for, such equity).
Custodian means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Debt of any Person at any date means any obligation created or assumed by such Person for
the repayment of borrowed money and any guarantee thereof.
Debt Security or Debt Securities has the meaning stated in the first recital of this
Indenture and more particularly means any debt security or debt securities, as the case may be, of
any series authenticated and delivered under this Indenture.
Default means any event, act or condition that is, or after notice or the passage of time or
both would be, an Event of Default.
Depositary means, unless otherwise specified by the Partnership pursuant to either
Section 2.03 or 2.15, with respect to Debt Securities of any series issuable or issued in whole or
in part in the form of one or more Global Securities, The Depository Trust Company, New York, New
York, or any successor thereto registered as a clearing agency under the Exchange Act or other
applicable statute or regulations.
Designated Senior Indebtedness means (i) any Senior Indebtedness which, at the date of
determination, has an aggregate principal amount outstanding of, or under which, at the date of
determination, the holders thereof are committed to lend up to, at least $100 million and (ii) any
other Senior Indebtedness designated, as provided in Section 2.03, in respect of any series of Debt
Securities.
Dollar or $ means such currency of the United States as at the time of payment is legal
tender for the payment of public and private debts.
Exchange Act means the Securities Exchange Act of 1934, as amended, and any successor
statute.
2
Floating Rate Security means a Debt Security that provides for the payment of interest at a
variable rate determined periodically by reference to an interest rate index specified pursuant to
Section 2.03.
GAAP means generally accepted accounting principles in the United States, as in effect from
time to time.
General Partner means Spectra Energy Partners GP, LLC, a Delaware limited liability company,
and its successors as general partner of the general partner of the Partnership.
Global Security means with respect to any series of Debt Securities issued hereunder, a Debt
Security which is executed by the Partnership and authenticated and delivered by the Trustee to the
Depositary or pursuant to the Depositarys instruction, all in accordance with this Indenture and
any Indentures supplemental hereto, or resolution of the Board of Directors and set forth in an
Officers Certificate, which shall be registered in the name of the Depositary or its nominee and
which shall represent, and shall be denominated in an amount equal to the aggregate principal
amount of, all the Outstanding Debt Securities of such series or any portion thereof, in either
case having the same terms, including, without limitation, the same original issue date, date or
dates on which principal is due and interest rate or method of determining interest.
The term guarantee means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Debt or other obligation of any other Person and any obligation, direct
or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or other obligation of such other Person (whether
arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial statement conditions or
otherwise) or (b) entered into for purposes of assuring in any other manner the obligee of such
Debt or other obligation of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided, however, that the term guarantee shall not include
endorsements for collection or deposit in the ordinary course of business. The term guarantee
used as a verb has a corresponding meaning.
Holder, Holder of Debt Securities or other similar terms means, a Person in whose name a
Debt Security is registered in the Debt Security Register (as defined in Section 2.07(a)).
Indenture means this instrument as originally executed, or, if amended or supplemented as
herein provided, as so amended or supplemented and shall include the form and terms of particular
series of Debt Securities as contemplated hereunder, whether or not a supplemental Indenture is
entered into with respect thereto.
Legal Holiday means a Saturday, a Sunday or a day on which banking institutions in the City
of Houston or at a Place of Payment are authorized by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a Place of Payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
3
Lien means, with respect to any asset, any mortgage, lien, security interest, pledge, charge
or other encumbrance of any kind in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law.
Officer means, with respect to a Person, the Chairman of the Board, the President, any Vice
President, the Treasurer, any Assistant Treasurer, Controller, Secretary, Assistant Secretary or
any Assistant Vice President of such Person.
Officers Certificate means a certificate signed by two Officers of the General Partner, one
of whom must be the General Partners chief executive officer, chief financial officer or chief
accounting officer (or if the Partnership shall change its form of entity to other than a limited
partnership, by Persons, officers, members, agents and others holding positions comparable to those
of the foregoing nature, as applicable).
Opinion of Counsel means a written opinion from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of or counsel to the Partnership or the Trustee.
Original Issue Discount Debt Security means any Debt Security that provides for an amount
less than the principal amount thereof to be due and payable upon a declaration of acceleration of
the maturity thereof pursuant to Section 6.01.
Outstanding, when used with respect to any series of Debt Securities, means, as of the date
of determination, all Debt Securities of that series theretofore authenticated and delivered under
this Indenture, except:
|
(a)
|
|
Debt Securities of that series theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
|
|
|
(b)
|
|
Debt Securities of that series for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or any
paying agent (other than the Partnership) in trust or set aside and segregated
in trust by the Partnership (if the Partnership shall act as its own paying
agent) for the Holders of such Debt Securities; provided, that, if such Debt
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made; and
|
|
|
(c)
|
|
Debt Securities of that series which have been paid pursuant to
Section 2.09 or in exchange for or in lieu of which other Debt Securities have
been authenticated and delivered pursuant to this Indenture, other than any
such Debt Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Debt Securities are held by a bona
fide purchaser in whose hands such Debt Securities are valid obligations of the
Partnership;
|
provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Debt Securities of any series have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Debt Securities owned by the Partnership or any
4
other obligor upon the Debt Securities or any Affiliate of the Partnership or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Debt Securities which a Trust Officer actually knows to be so owned
shall be so disregarded. Debt Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgees
right so to act with respect to such Debt Securities and that the pledgee is not the Partnership or
any other obligor upon the Debt Securities or an Affiliate of the Partnership or of such other
obligor. In determining whether the Holders of the requisite principal amount of Outstanding Debt
Securities have given any request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of an Original Issue Discount Debt Security that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 6.01.
Partnership means the Person named as the Partnership in the first paragraph of this
instrument until a successor Person shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter Partnership shall mean such successor Person.
Partnership Request and Partnership Order mean, respectively, a written request or order
signed in the name of the Partnership by the Chairman of the Board, the President or a Vice
President of the General Partner, and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary of the General Partner, and delivered
to the Trustee, or if the Partnership shall change its form of entity to other than a limited
partnership, by Persons or officers, members, agents and others holding positions comparable to
those of the foregoing nature, as applicable.
Person means any individual, corporation, partnership, joint venture, limited liability
company, incorporated or unincorporated association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof or other entity of any
kind.
Redemption Date, when used with respect to any Debt Security to be redeemed, means the date
fixed for such redemption by or pursuant to this Indenture.
Representative means the trustee, agent or representative (if any) for an issue of Senior
Debt.
SEC means the Securities and Exchange Commission.
Securities Act means the Securities Act of 1933, as amended, and any successor statute.
Senior Indebtedness, unless otherwise provided with respect to the Debt Securities of a
series as contemplated by Section 2.03, means (1) all Debt of the Subsidiary Guarantors or the
Partnership, whether currently outstanding or hereafter issued, unless, by the terms of the
instrument creating or evidencing such Debt, it is provided that such Debt is subordinate or not
superior in right of payment to the Debt Securities, in the case of the Partnership, or the
5
Guarantee, in the case of the Subsidiary Guarantors, or to other Debt which is pari passu with
or subordinated to the Debt Securities, in the case of the Partnership, or the Guarantee, in the
case of the Subsidiary Guarantors, and (2) any modifications, refunding, deferrals, renewals, or
extensions of any such Debt or securities, notes or other evidence of Debt issued in exchange for
such Debt; provided that in no event shall Senior Indebtedness include (a) Debt evidenced by the
Debt Securities or any Guarantee, (b) Debt of any of the Subsidiary Guarantors or the Partnership
owed or owing to any Subsidiary of the Partnership, (c) Debt of any of the Subsidiary Guarantors
owed or owing to the Partnership, (d) Debt to trade creditors, (e) any liability for taxes owed or
owing by any of the Subsidiary Guarantors or the Partnership or (f) Debt of any Subsidiary
Guarantor in the event there is no series of Debt Securities Outstanding that is entitled to the
benefits of a Guarantee.
Stated Maturity means, with respect to any security, the date specified in such security as
the fixed date on which the payment of principal of such security is due and payable, including
pursuant to any mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has occurred).
Subsidiary of any Person means:
|
(1)
|
|
any corporation, association or other business entity of which more
than 50% of the total voting power of equity interests entitled, without regard
to the occurrence of any contingency, to vote in the election of directors,
managers, trustees or equivalent Persons thereof, is at the time of
determination owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of such Person or a combination thereof;
or
|
|
|
(2)
|
|
in the case of a partnership, more than 50% of the partners equity
interests, considering all partners equity interests as a single class, is at
such time of determination owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person or a combination
thereof.
|
Subsidiary Guarantors means any
Subsidiary of the Partnership that may execute this
Indenture, or a supplement thereto, for the purpose of providing a Guarantee of Debt Securities
pursuant to this Indenture, in each case until a successor Person or Persons shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter Subsidiary Guarantors
shall mean such successor Person or Persons.
TIA means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§77aaa-77bbbb), as in
effect on the date of this Indenture as originally executed and, to the extent required by law, as
amended.
Trustee initially means Wells Fargo Bank, N.A. and any other Person or Persons appointed as
such from time to time pursuant to Section 7.08, and, subject to the provisions of
6
Article VII, includes its or their successors and assigns. If at any time there is more than
one such Person, Trustee as used with respect to the Debt Securities of any series shall mean the
Trustee with respect to the Debt Securities of that series.
Trust Officer means any officer or assistant officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
United States means the United States of America (including the States and the District of
Columbia), its territories, its possessions and other areas subject to its jurisdiction.
U.S. Government Obligations means direct obligations of the United States of America,
obligations on which the payment of principal and interest is fully guaranteed by the United States
of America or obligations or guarantees for the payment of which the full faith and credit of the
United States of America is pledged.
Yield to Maturity means the yield to maturity, calculated at the time of issuance of a
series of Debt Securities, or, if applicable, at the most recent redetermination of interest on
such series and calculated in accordance with accepted financial practice.
Section 1.02.
Other Definitions
.
|
|
|
|
|
Term
|
|
Defined in Section
|
Debt Security Register
|
|
|
2.07
|
|
Defaulted Interest
|
|
|
2.17
|
|
Event of Default
|
|
|
6.01
|
|
Funding Guarantor
|
|
|
14.05
|
|
Guarantee
|
|
|
14.01
|
|
Place of Payment
|
|
|
2.03
|
|
Registrar
|
|
|
2.07
|
|
Subordinated Debt Securities
|
|
|
12.01
|
|
Successor Partnership
|
|
|
10.01
|
|
Section 1.03.
Incorporation by Reference of Trust Indenture Act
. Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in and made a part of
this Indenture.
All terms used in this Indenture that are defined by the TIA, defined by TIA reference to
another statute or defined by SEC rule under the TIA have the meanings so assigned to them.
Section 1.04.
Rules of Construction
. Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with
GAAP;
(c) or is not exclusive;
7
(d) words in the singular include the plural, and in the plural include the singular;
(e) provisions apply to successive events and transactions;
(f) if the applicable series of Debt Securities are subordinated pursuant to Article XII,
unsecured Debt shall not be deemed to be subordinate or junior to secured Debt merely by virtue of
its nature as unsecured Debt; and
(g) the principal amount of any noninterest bearing or other discount security at any date
shall be the principal amount thereof that would be shown on a balance sheet of the issuer dated
such date prepared in accordance with GAAP.
ARTICLE II
DEBT SECURITIES
Section 2.01.
Forms Generally
. The Debt Securities of each series shall be in
substantially the form established without the approval of any Holder by or pursuant to a
resolution of the Board of Directors or in one or more Indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as the Partnership may deem appropriate (and, if
not contained in a supplemental Indenture entered into in accordance with Article IX, as are not
prohibited by the provisions of this Indenture) or as may be required or appropriate to comply with
any law or with any rules made pursuant thereto or with any rules of any securities exchange on
which such series of Debt Securities may be listed, or to conform to general usage, or as may,
consistently herewith, be determined by the officers executing such Debt Securities as evidenced by
their execution of the Debt Securities.
The definitive Debt Securities of each series shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined by the officers
executing such Debt Securities, as evidenced by their execution of such Debt Securities.
Section 2.02.
Form of Trustees Certificate of Authentication
. The Trustees certificate
of authentication on all Debt Securities authenticated by the Trustee shall be in substantially the
following form:
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein referred to in the
within-mentioned Indenture.
|
|
|
|
|
|
WELLS FARGO BANK, N.A.,
As Trustee
|
|
|
By:
|
|
|
|
|
Authorized Signatory
|
|
|
|
|
|
8
Section 2.03.
Principal Amount; Issuable in Series
. The aggregate principal amount of Debt
Securities which may be issued, executed, authenticated, delivered and outstanding under this
Indenture is unlimited.
The Debt Securities may be issued in one or more series in fully registered form. There shall
be established, without the approval of any Holders, in or pursuant to a resolution of the Board of
Directors and set forth in an Officers Certificate, or established in one or more Indentures
supplemental hereto, prior to the issuance of Debt Securities of any series any or all of the
following:
(a) the title of the Debt Securities of the series (which shall distinguish the Debt
Securities of the series from all other Debt Securities);
(b) any limit upon the aggregate principal amount of the Debt Securities of the series which
may be authenticated and delivered under this Indenture (except for Debt Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to this Article II);
(c) the date or dates on which the principal of and premium, if any, on the Debt Securities of
the series are payable;
(d) the rate or rates (which may be fixed or variable) at which the Debt Securities of the
series shall bear interest, if any, or the method of determining such rate or rates, the date or
dates from which such interest shall accrue, the interest payment dates on which such interest
shall be payable, or the method by which such date will be determined, the record dates for the
determination of Holders thereof to whom such interest is payable, or the method by which such date
will be determined; and the basis upon which interest will be calculated if other than that of a
360-day year of twelve thirty-day months;
(e) the place or places, if any, in addition to the corporate trust office of the Trustee in
New York, New York, where the principal of, and premium, if any, and interest on, Debt Securities
of the series shall be payable (Place of Payment);
(f) the price or prices at which, the period or periods within which and the terms and
conditions upon which Debt Securities of the series may be redeemed, in whole or in part, at the
option of the Partnership or otherwise;
(g) whether Debt Securities of the series are entitled to the benefits of the Guarantee of any
Subsidiary Guarantor pursuant to this Indenture;
(h) the obligation, if any, of the Partnership to redeem, purchase or repay Debt Securities of
the series pursuant to any sinking fund or analogous provisions or at the option of a Holder
thereof, and the price or prices at which and the period or periods within which and the terms and
conditions upon which Debt Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligations;
(i) the terms, if any, upon which the Debt Securities of the series may be convertible into or
exchanged for capital stock (which may be represented by depositary shares), other Debt
9
Securities
or warrants for capital stock or Debt or other securities of any kind of the Partnership or any
other obligor and the terms and conditions upon which such conversion or exchange shall be
effected, including the initial conversion or exchange price or rate, the conversion or exchange
period and any other provision in addition to or in lieu of those described herein;
(j) if other than denominations of $1,000 and any integral multiple thereof, the denominations
in which Debt Securities of the series shall be issuable;
(k) if the amount of principal of or any premium or interest on Debt Securities of the series
may be determined with reference to an index or pursuant to a formula, the manner in which such
amounts will be determined;
(l) if the principal amount payable at the Stated Maturity of Debt Securities of the series
will not be determinable as of any one or more dates prior to such Stated Maturity, the amount
which will be deemed to be such principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any maturity other than the Stated
Maturity or which will be deemed to be Outstanding as of any such date (or, in any such case, the
manner in which such deemed principal amount is to be determined);
(m) any changes or additions to Article XI, including the addition of additional covenants
that may be subject to the covenant defeasance option pursuant to Section 11.02(b);
(n) if other than the principal amount thereof, the portion of the principal amount of Debt
Securities of the series which shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.01 or provable in bankruptcy pursuant to Section 6.02;
(o) the terms, if any, of the transfer, mortgage, pledge or assignment as security for the
Debt Securities of the series of any properties, assets, money, proceeds, securities or other
collateral, including whether certain provisions of the TIA are applicable and any corresponding
changes to provisions of this Indenture as currently in effect;
(p) any addition to or change in the Events of Default with respect to the Debt Securities of
the series and any change in the right of the Trustee or the Holders to declare the principal of,
and premium and interest on, such Debt Securities due and payable;
(q) if the Debt Securities of the series shall be issued in whole or in part in the form of a
Global Security or Securities, the terms and conditions, if any, upon which such Global Security or
Securities may be exchanged in whole or in part for other individual Debt Securities in definitive
registered form; and the Depositary for such Global Security or Securities and the form of any
legend or legends to be borne by any such Global Security or Securities in addition to or in lieu
of the legend referred to in Section 2.15(a);
(r) any trustees, authenticating or paying agents, transfer agents or registrars;
(s) the applicability of, and any addition to or change in the covenants and definitions
currently set forth in this Indenture or in the terms currently set forth in Article X, including
conditioning any merger, conveyance, transfer or lease permitted by Article X upon the
10
satisfaction
of any Debt coverage standard by the Partnership and Successor Partnership (as defined in
Article X);
(t) the subordination, if any, of the Debt Securities of the series pursuant to Article XII
and any changes or additions to Article XII or designation of any other Designated Senior
Indebtedness;
(u) with regard to Debt Securities of the series that do not bear interest, the dates for
certain required reports to the Trustee; and
(v) any other terms of the Debt Securities of the series (which terms shall not be prohibited
by the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to such resolution of the Board
of Directors and as set forth in such Officers Certificate or in any such Indenture supplemental
hereto.
Section 2.04.
Execution of Debt Securities
. The Debt Securities shall be signed on behalf
of the Partnership by the Chairman of the Board, the President or a Vice President of the General
Partner and, if the seal of the General Partner is reproduced thereon, it shall be attested by its
Secretary, an Assistant Secretary, a Treasurer or an Assistant Treasurer. Such signatures upon the
Debt Securities may be the manual or facsimile signatures of the present or any future such
authorized officers and may be imprinted or otherwise reproduced on the Debt Securities. The seal
of the General Partner, if any, may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Debt Securities.
Only such Debt Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, signed manually by the Trustee, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Debt Security executed by the General Partner on behalf of the Partnership
shall be conclusive evidence that the Debt Security so authenticated has been duly authenticated
and delivered hereunder.
In case any officer of the General Partner who shall have signed any of the Debt Securities
shall cease to be such officer before the Debt Securities so signed shall have been authenticated
and delivered by the Trustee, or disposed of by the Partnership, such Debt Securities nevertheless
may be authenticated and delivered or disposed of as though the Person who signed such Debt
Securities had not ceased to be such officer of the General Partner; and any Debt Security may be
signed on behalf of the General Partner by such Persons as, at the actual date of the execution of
such Debt Security, shall be the proper officers of the General Partner, although at the date of
such Debt Security or of the execution of this Indenture any such Person was not such officer.
Section 2.05.
Authentication and Delivery of Debt Securities
. At any time and from time to
time after the execution and delivery of this Indenture, the Partnership may deliver Debt
Securities of any series executed by the Partnership to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said Debt Securities to or upon a Partnership
11
Order. In authenticating such Debt Securities, and accepting the additional responsibilities under
this Indenture in relation to such Debt Securities, the Trustee shall be entitled to receive, and
(subject to Section 7.01) shall be fully protected in relying upon:
(a) a copy of any resolution or resolutions of the Board of Directors, certified by the
Secretary or Assistant Secretary of the General Partner, authorizing the terms of issuance of any
series of Debt Securities;
(b) an executed supplemental Indenture, if any;
(c) an Officers Certificate; and
(d) an Opinion of Counsel prepared in accordance with Section 13.05 which shall also state:
(i) that the form of such Debt Securities has been established by or pursuant to a
resolution of the Board of Directors or by a supplemental Indenture as permitted by
Section 2.01 in conformity with the provisions of this Indenture;
(ii) that the terms of such Debt Securities have been established by or pursuant to a
resolution of the Board of Directors or by a supplemental Indenture as permitted by
Section 2.03 in conformity with the provisions of this Indenture;
(iii) that such Debt Securities, when authenticated and delivered by the Trustee and
issued by the Partnership in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of the
Partnership, enforceable in accordance with their terms except as the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors rights generally and rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of general
applicability;
(iv) that the Partnership has the partnership power to issue such Debt Securities and
has duly taken all necessary partnership action with respect to such issuance;
(v) that the issuance of such Debt Securities will not contravene the organizational
documents of the Partnership or result in any material violation of any of the terms or
provisions of any law or regulation or of any material indenture, mortgage or other
agreement known to such counsel by which the Partnership is bound;
(vi) that authentication and delivery of such Debt Securities and the execution and
delivery of any supplemental Indenture will not violate the terms of this Indenture; and
(vii) such other matters as the Trustee may reasonably request.
Such Opinion of Counsel need express no opinion as to whether a court in the United States
would render a money judgment in a currency other than that of the United States.
12
The Trustee shall have the right to decline to authenticate and deliver any Debt Securities
under this Section 2.05 if the Trustee, being advised by counsel, determines that such action may
not lawfully be taken or if the Trustee in good faith by its board of directors or trustees,
executive committee or a trust committee of directors, trustees or officers (or any combination
thereof) shall determine that such action would expose the Trustee to personal liability to
existing Holders.
The Trustee may appoint an authenticating agent reasonably acceptable to the Partnership to
authenticate Debt Securities of any series. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Debt Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as any Registrar, paying agent or agent for service of
notices and demands.
Unless otherwise provided in the form of Debt Security for any series, each Debt Security
shall be dated the date of its authentication.
Section 2.06.
Denomination of Debt Securities
. Unless otherwise provided in the form of
Debt Security for any series, the Debt Securities of each series shall be issuable only as fully
registered Debt Securities in such Dollar denominations as shall be specified or contemplated by
Section 2.03. In the absence of any such specification with respect to the Debt Securities of any
series, the Debt Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section 2.07.
Registration of Transfer and Exchange.
(a) The Partnership shall keep or cause to be kept a register for each series of Debt
Securities issued hereunder (hereinafter collectively referred to as the Debt Security Register),
in which, subject to such reasonable regulations as it may prescribe, the Partnership shall provide
for the registration of all Debt Securities and the transfer of Debt Securities as in this
Article II provided. At all reasonable times the Debt Security Register shall be open for
inspection by the Trustee. Subject to Section 2.15, upon due presentment for registration of
transfer of any Debt Security at any office or agency to be maintained by the Partnership in
accordance with the provisions of Section 4.02, the Partnership shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new Debt Security or Debt
Securities of authorized denominations for a like aggregate principal amount. In no event may Debt
Securities be issued as, or exchanged for, bearer securities.
Unless and until otherwise determined by the Partnership, the Debt Security Register shall be
kept at the corporate trust office of the Trustee referred to in Section 13.03 and, for this
purpose, the Trustee shall be designated Registrar.
Debt Securities of any series (other than a Global Security, except as set forth below) may be
exchanged for a like aggregate principal amount of Debt Securities of the same series of other
authorized denominations. Subject to Section 2.15, Debt Securities to be exchanged shall be
surrendered at the office or agency to be maintained by the Partnership as provided in
Section 4.02, and the Partnership shall execute and the Trustee shall authenticate and deliver in
13
exchange therefor the Debt Security or Debt Securities which the Holder making the exchange shall
be entitled to receive.
(b) All Debt Securities presented or surrendered for registration of transfer, exchange or
payment shall (if so required by the Partnership, the Trustee or the Registrar) be duly endorsed or
be accompanied by a written instrument or instruments of transfer, in form satisfactory to the
Partnership, the Trustee and the Registrar, duly executed by the Holder or his attorney duly
authorized in writing.
All Debt Securities issued in exchange for or upon transfer of Debt Securities shall be the
valid obligations of the Partnership, evidencing the same debt, and entitled to the same benefits
under this Indenture as the Debt Securities surrendered for such exchange or transfer.
No service charge shall be made for any exchange or registration of transfer of Debt
Securities (except as provided by Section 2.09), but the Partnership may require payment of a sum
sufficient to cover any tax, fee, assessment or other governmental charge that may be imposed in
relation thereto, other than those expressly provided in this Indenture to be made at the
Partnerships own expense or without expense or without charge to the Holders.
The Partnership shall not be required (i) to issue, register the transfer of or exchange any
Debt Securities for a period of 15 days next preceding any mailing of notice of redemption of Debt
Securities of such series or (ii) to register the transfer of or exchange any Debt Securities
selected, called or being called for redemption.
Prior to the due presentation for registration of transfer of any Debt Security, the
Partnership, the Subsidiary Guarantors, the Trustee, any paying agent or any Registrar may deem and
treat the Person in whose name a Debt Security is registered as the absolute owner of such Debt
Security for the purpose of receiving payment of or on account of the principal of, and premium, if
any, and (subject to Section 2.12) interest on, such Debt Security and for all other purposes
whatsoever, whether or not such Debt Security is overdue, and none of the Partnership, the
Subsidiary Guarantors, the Trustee, any paying agent or any Registrar shall be affected by notice
to the contrary.
None of the Partnership, the Subsidiary Guarantors, the Trustee, any agent of the Trustee, any
paying agent or any Registrar will have any responsibility or liability for any aspect of the
records relating to, or payments made on account of, beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Section 2.08.
Temporary Debt Securities
. Pending the preparation of definitive Debt
Securities of any series, the Partnership may execute and the Trustee shall authenticate and
deliver temporary Debt Securities (printed, lithographed, photocopied, typewritten or otherwise
produced) of any authorized denomination, and substantially in the form of the definitive Debt
Securities in lieu of which they are issued, in registered form with such omissions, insertions and
variations as may be appropriate for temporary Debt Securities, all as may be determined by the
Partnership with the concurrence of the Trustee. Temporary Debt Securities may contain such
reference to any provisions of this Indenture as may be appropriate. Every temporary Debt
14
Security
shall be executed by the Partnership and be authenticated by the Trustee upon the same conditions
and in substantially the same manner, and with like effect, as the definitive Debt Securities.
If temporary Debt Securities of any series are issued, the Partnership will cause definitive
Debt Securities of such series to be prepared without unreasonable delay. After the preparation of
definitive Debt Securities of such series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series upon surrender of the temporary Debt
Securities of such series at the office or agency of the Partnership at a Place of Payment for such
series, without charge to the Holder thereof, except as provided in Section 2.07 in connection with
a transfer. Upon surrender for cancellation of any one or more temporary Debt Securities of any
series, the Partnership shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Debt Securities of the same series of authorized
denominations and of like tenor. Until so exchanged, temporary Debt Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as definitive Debt Securities
of such series.
Upon any exchange of a portion of a temporary Global Security for a definitive Global Security
or for the individual Debt Securities represented thereby pursuant to Section 2.07 or this
Section 2.08, the temporary Global Security shall be endorsed by the Trustee to reflect the
reduction of the principal amount evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by the amount to be exchanged and
endorsed.
Section 2.09.
Mutilated, Destroyed, Lost or Stolen Debt Securities
. If (a) any mutilated
Debt Security is surrendered to the Trustee at its corporate trust office or (b) the Partnership
and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any
Debt Security, and there is delivered to the Partnership and the Trustee such security or indemnity
as may be required by them to save each of them and any paying agent harmless, and neither the
Partnership nor the Trustee receives notice that such Debt Security has been acquired by a
protected purchaser, then the Partnership shall execute and, upon a Partnership Order, the Trustee
shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Debt Security, a new Debt Security of the same series of like tenor, form, terms and
principal amount, bearing a number not contemporaneously Outstanding. Upon the issuance of any
substituted Debt Security, the Partnership or the Trustee may require the payment of a sum
sufficient to cover any tax, fee, assessment or other governmental charge that may be imposed in
relation thereto and any other expenses connected therewith. In case any Debt Security which has
matured or is about to mature or which has been called for redemption shall become mutilated or be
destroyed, lost or stolen, the Partnership may, instead of issuing a substituted Debt Security, pay
or authorize the payment of the same (without surrender thereof except in the case of a mutilated
Debt Security) if the applicant for such payment shall furnish the Partnership and the Trustee with
such security or indemnity as either may require to save it harmless from all risk, however remote,
and, in case of destruction, loss or theft, evidence to the satisfaction of the Partnership and the
Trustee of the destruction, loss or theft of such Debt Security and of the ownership thereof.
15
Every substituted Debt Security of any series issued pursuant to the provisions of this
Section 2.09 by virtue of the fact that any Debt Security is destroyed, lost or stolen shall
constitute an original additional contractual obligation of the Partnership, whether or not the
destroyed, lost or stolen Debt Security shall be found at any time, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Debt Securities
of that series duly issued hereunder. All Debt Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debt Securities, and shall preclude any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable instruments or other securities without their
surrender.
Section 2.10.
Cancellation of Surrendered Debt Securities
. All Debt Securities surrendered
for payment, redemption, registration of transfer or exchange shall, if surrendered to the
Partnership or any paying agent or a Registrar, be delivered to the Trustee for cancellation by it,
or if surrendered to the Trustee, shall be canceled by it, and no Debt Securities shall be issued
in lieu thereof except as expressly permitted by any of the provisions of this Indenture. All
canceled Debt Securities held by the Trustee shall be destroyed (subject to the record retention
requirements of the Exchange Act) and certification of their destruction delivered to the
Partnership, unless otherwise directed. On request of the Partnership, the Trustee shall deliver
to the Partnership canceled Debt Securities held by the Trustee. If the Partnership shall acquire
any of the Debt Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the Debt represented thereby unless and until
the same are delivered or surrendered to the Trustee for cancellation. The Partnership may not
issue new Debt Securities to replace Debt Securities it has redeemed, paid or delivered to the
Trustee for cancellation.
Section 2.11.
Provisions of the Indenture and Debt Securities for the Sole Benefit of the
Parties and the Holders
. Nothing in this Indenture or in the Debt Securities, expressed or
implied, shall give or be construed to give to any Person, other than the parties hereto, the
holders of any Senior Indebtedness, the Holders or any Registrar or paying agent, any legal or
equitable right, remedy or claim under or in respect of this Indenture, or under any covenant,
condition or provision herein contained; all its covenants, conditions and provisions being for the
sole benefit of the parties hereto, the Holders and any Registrar and paying agents.
Section 2.12.
Payment of Interest; Interest Rights Preserved.
(a) Interest on any Debt Security that is payable and is punctually paid or duly provided for
on any interest payment date shall be paid to the Person in whose name such Debt Security is
registered at the close of business on the regular record date for such interest notwithstanding
the cancellation of such Debt Security upon any transfer or exchange subsequent to the regular
record date. Payment of interest on Debt Securities shall be made at the corporate trust office of
the Trustee (except as otherwise specified pursuant to Section 2.03), or at the option of the
Partnership, by check mailed to the address of the Person entitled thereto as such address shall
appear in the Debt Security Register or, if provided pursuant to Section 2.03 and in accordance
with arrangements satisfactory to the Trustee, at the option of the Holder by wire transfer to an
account designated by the Holder.
16
(b) Subject to the foregoing provisions of this Section 2.12 and Section 2.17, each Debt
Security of a particular series delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Debt Security of the same series shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other Debt Security.
Section 2.13.
Securities Denominated in Dollars
. Except as otherwise specified pursuant to
Section 2.03 for Debt Securities of any series, payment of the principal of, and premium, if any,
and interest on, Debt Securities of such series will be made in Dollars.
Section 2.14.
Wire Transfers
. Notwithstanding any other provision to the contrary in this
Indenture, the Partnership may make any payment of money required to be deposited with the Trustee
on account of principal of, or premium, if any, or interest on, the Debt Securities (whether
pursuant to optional or mandatory redemption payments, interest payments or otherwise) by wire
transfer in immediately available funds to an account designated by the Trustee by 11:00 a.m., New
York City time, on the date such money is to be paid to the Holders of the Debt Securities in
accordance with the terms hereof.
Section 2.15.
Securities Issuable in the Form of a Global Security
.
(a) If the Partnership shall establish pursuant to Sections 2.01 and 2.03 that the Debt
Securities of a particular series are to be issued in whole or in part in the form of one or more
Global Securities, then the Partnership shall execute and the Trustee or its agent shall, in
accordance with Section 2.05, authenticate and deliver, such Global Security or Securities, which
shall represent, and shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Debt Securities of such series to be represented by such Global Security or
Securities, or such portion thereof as the Partnership shall specify in an Officers Certificate,
shall be registered in the name of the Depositary for such Global Security or Securities or its
nominee, shall be delivered by the Trustee or its agent to the Depositary or pursuant to the
Depositarys instruction and shall bear a legend substantially to the following effect:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO THE PARTNERSHIP OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
17
ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO HEREIN,
or such other legend as may then be required by the Depositary for such Global Security or
Securities.
(b) Notwithstanding any other provision of this Section 2.15 or of Section 2.07 to the
contrary, and subject to the provisions of paragraph (c) below, unless the terms of a Global
Security expressly permit such Global Security to be exchanged in whole or in part for definitive
Debt Securities in registered form, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 2.07, only by the Depositary to a nominee of the Depositary
for such Global Security, or by a nominee of the Depositary to the Depositary or another nominee of
the Depositary, or by the Depositary or a nominee of the Depositary to a successor Depositary for
such Global Security selected or approved by the Partnership, or to a nominee of such successor
Depositary.
(c) (i) If at any time the Depositary for a Global Security or Securities notifies the
Partnership that it is unwilling or unable to continue as Depositary for such Global
Security or Securities or if at any time the Depositary for the Debt Securities for such
series shall no longer be eligible or in good standing under the Exchange Act or other
applicable statute, rule or regulation, the Partnership shall appoint a successor Depositary
with respect to such Global Security or Securities. If a successor Depositary for such
Global Security or Securities is not appointed by the Partnership within 90 days after the
Partnership receives such notice or becomes aware of such ineligibility, the Partnership
shall execute, and the Trustee or its agent, upon receipt of a Partnership Order for the
authentication and delivery of such individual Debt Securities of such series in exchange
for such Global Security or Securities, will authenticate and deliver, individual Debt
Securities of such series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of the Global Security or Securities in
exchange for such Global Security or Securities.
(ii) The Partnership may at any time and in its sole discretion determine that the Debt
Securities of any series or portion thereof issued or issuable in the form of one or more
Global Securities shall no longer be represented by such Global Security or Securities. In
such event the Partnership will execute, and the Trustee, upon receipt of a Partnership
Order for the authentication and delivery of individual Debt Securities of such series in
exchange in whole or in part for such Global Security or Securities, will authenticate and
deliver individual Debt Securities of such series of like tenor and terms in definitive form
in an aggregate principal amount equal to the principal amount of such series or portion
thereof in exchange for such Global Security or Securities.
(iii) If specified by the Partnership pursuant to Sections 2.01 and 2.03 with respect to
Debt Securities issued or issuable in the form of a Global Security, the Depositary for such
Global Security may surrender such Global Security in exchange in whole or in part for
individual Debt Securities of such series of like tenor and terms in definitive form on such
terms as are acceptable to the Partnership, the Trustee and such Depositary. Thereupon the
Partnership shall execute, and the Trustee or its agent upon receipt of a
18
Partnership Order
for the authentication and delivery of definitive Debt Securities of such series shall
authenticate and deliver, without service charge, to each Person specified by such
Depositary a new Debt Security or Securities of the same series of like tenor and terms and
of any authorized denomination as requested by such Person in aggregate principal amount
equal to and in exchange for such Persons beneficial interest in the Global Security; and
to such Depositary a new Global Security of like tenor and terms and in an authorized
denomination equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of Debt Securities delivered
to Holders thereof.
(iv) In any exchange provided for in any of the preceding three paragraphs, the Partnership
will execute and the Trustee or its agent will authenticate and deliver individual Debt
Securities. Upon the exchange of the entire principal amount of a Global Security for
individual Debt Securities, such Global Security shall be canceled by the Trustee or its
agent. Except as provided in the preceding paragraph, Debt Securities issued in exchange
for a Global Security pursuant to this Section 2.15 shall be registered in such names and in
such authorized denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee or the Registrar. The Trustee or the Registrar shall deliver
such Debt Securities to the Persons in whose names such Debt Securities are so registered.
(v) Payments in respect of the principal of and interest on any Debt Securities issued in
global form and registered in the name of the Depositary or its nominee will be payable to
the Depositary or such nominee in its capacity as the registered owner of such Global
Security. The Partnership, the Subsidiary Guarantors and the Trustee may treat the Person
in whose name the Debt Securities, including the Global Security, are registered as the
owner thereof for the purpose of receiving such payments and for any and all other purposes
whatsoever. None of the Partnership, the Subsidiary Guarantors, the Trustee, any Registrar,
the paying agent or any agent of the Partnership or the Trustee will have any responsibility
or liability for any aspect of the records relating to or payments made on account of the
beneficial ownership interests of the Global Security by the Depositary or its nominee or
any of the Depositarys direct or indirect participants, or for maintaining, supervising or
reviewing any records of the Depositary, its nominee or any of its direct or indirect
participants relating to the beneficial ownership interests of the Global Security, the
payments to the beneficial owners of the Global Security of amounts paid to the Depositary
or its nominee, or any other matter relating to the actions and practices of the
Depositary, its nominee or any of its direct or indirect participants. None of the
Partnership, the Subsidiary Guarantors, the Trustee or any such agent will be liable for any
delay by the Depositary, its nominee, or any of its direct or indirect participants in
identifying the beneficial owners of the Debt Securities, and the Partnership and the
Trustee may conclusively rely on, and will be protected in relying on, instructions from the
Depositary or its nominee for all purposes (including with respect to the registration and
delivery, and the respective principal amounts, of the individual Debt Securities to be
issued).
Section 2.16.
Medium Term Securities
. Notwithstanding any contrary provision herein, if
all Debt Securities of a series are not to be originally issued at one time, it shall not be
19
necessary for the Partnership to deliver to the Trustee an Officers Certificate, resolutions of
the Board of Directors, supplemental Indenture, Opinion of Counsel or written order or any other
document otherwise required pursuant to Section 2.01, 2.03, 2.05 or 13.05 at or prior to the time
of authentication of each Debt Security of such series if such documents are delivered to the
Trustee or its agent at or prior to the authentication upon original issuance of the first such
Debt Security of such series to be issued; provided, that any subsequent request by the Partnership
to the Trustee to authenticate Debt Securities of such series upon original issuance shall
constitute a representation and warranty by the Partnership that, as of the date of such request,
the statements made in the Officers Certificate delivered pursuant to Section 2.05 or 13.05 shall
be true and correct as if made on such date and that the Opinion of Counsel delivered at or prior
to such time of authentication of an original issuance of Debt Securities shall specifically state
that it shall relate to all subsequent issuances of Debt Securities of such series that are
identical to the Debt Securities issued in the first issuance of Debt Securities of such series.
A Partnership Order delivered by the Partnership to the Trustee in the circumstances set forth
in the preceding paragraph, may provide that Debt Securities which are the subject thereof
will be authenticated and delivered by the Trustee or its agent on original issue from time to
time upon the telephonic or written order of Persons designated in such written order (any such
telephonic instructions to be promptly confirmed in writing by such Person) and that such Persons
are authorized to determine, consistent with the Officers Certificate, supplemental Indenture or
resolution of the Board of Directors relating to such written order, such terms and conditions of
such Debt Securities as are specified in such Officers Certificate, supplemental Indenture or such
resolution.
Section 2.17.
Defaulted Interest
. Any interest on any Debt Security of a particular series
which is payable, but is not punctually paid or duly provided for, on the dates and in the manner
provided in the Debt Securities of such series and in this Indenture (herein called Defaulted
Interest) shall forthwith cease to be payable to the Holder thereof on the relevant record date by
virtue of having been such Holder, and such Defaulted Interest may be paid by the Partnership, at
its election in each case, as provided in clause (i) or (ii) below:
(i) The Partnership may elect to make payment of any Defaulted Interest to the Persons
in whose names the Debt Securities of such series are registered at the close of business on
a special record date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Partnership shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Debt Security of such series and the
date of the proposed payment, and at the same time the Partnership shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly notify the
Partnership of such special record date and, in the name and at the expense of the
Partnership, shall cause notice of the proposed
20
payment of such Defaulted Interest and the
special record date therefor to be mailed, first class postage pre-paid, to each Holder
thereof at its address as it appears in the Debt Security Register, not less than 10 days
prior to such special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Debt Securities of such series are
registered at the close of business on such special record date.
(ii) The Partnership may make payment of any Defaulted Interest on the Debt Securities
of such series in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debt Securities of such series may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the Partnership to the
Trustee of the proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Section 2.18.
CUSIP and ISIN Numbers
. The Partnership in issuing the Debt Securities may
use CUSIP and corresponding ISIN numbers (if then generally in use), and, if so, the Trustee
shall use CUSIP and corresponding ISIN numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is made as to the accuracy
of such numbers either as printed on the Debt Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification numbers printed on the
Debt Securities, and any such redemption shall not be affected by any defect in or omission of such
numbers. The Partnership will promptly notify the Trustee in writing of any change in the CUSIP
and ISIN numbers.
ARTICLE III
REDEMPTION OF DEBT SECURITIES
Section 3.01.
Applicability of Article
. The provisions of this Article shall be applicable
to the Debt Securities of any series which are redeemable before their Stated Maturity except as
otherwise specified as contemplated by Section 2.03 for Debt Securities of such series.
Section 3.02.
Notice of Redemption; Selection of Debt Securities
. In case the Partnership
shall desire to exercise the right to redeem all or, as the case may be, any part of the Debt
Securities of any series in accordance with their terms, by resolution of the Board of Directors or
a supplemental Indenture, the Partnership shall fix a date for redemption and shall give notice of
such redemption at least 30 and not more than 60 days prior to the date fixed for redemption to the
Holders of Debt Securities of such series so to be redeemed as a whole or in part, in the manner
provided in Section 13.03; provided, however, such notice may be given more than 60 days prior to
the Redemption Date if the notice is given in connection with a satisfaction and discharge pursuant
to Section 11.02(a). The notice if given in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives such notice. In any case,
failure to give such notice or any defect in the notice to the Holder of any Debt Security of a
series designated for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debt Security of such series.
21
Each such notice of redemption shall specify (i) the Redemption Date, (ii) the redemption
price at which Debt Securities of such series are to be redeemed (or the method of calculating such
redemption price), (iii) the Place or Places of Payment that payment will be made upon presentation
and surrender of such Debt Securities, (iv) that any interest accrued to the Redemption Date will
be paid as specified in said notice, (v) that the redemption is for a sinking fund payment (if
applicable), (vi) that, unless otherwise specified in such notice, if the Partnership defaults in
making such redemption payment or if the Debt Securities of that series are subordinated pursuant
to the terms of Article XII, the paying agent is prohibited from making such payment pursuant to
the terms of this Indenture, (vii) that on and after said date any interest thereon or on the
portions thereof to be redeemed will cease to accrue, (viii) that in the case of
Original Issue Discount Securities original issue discount accrued after the Redemption Date
will cease to accrue, (ix) the terms of the Debt Securities of that series pursuant to which the
Debt Securities of that series are being redeemed and (x) that no representation is made as to the
correctness or accuracy of the CUSIP or ISIN number, if any, listed in such notice or printed on
the Debt Securities of that series. If less than all the Debt Securities of a series are to be
redeemed at any time, the notice of redemption shall specify the certificate numbers of the Debt
Securities of that series to be redeemed. In case any Debt Security of a series is to be redeemed
in part only, the notice of redemption shall state the portion of the principal amount thereof to
be redeemed and shall state that on and after the Redemption Date, upon surrender of such Debt
Security, a new Debt Security or Debt Securities of that series in principal amount equal to the
unredeemed portion thereof, will be issued.
At least five days before giving of any notice of redemption, unless the Trustee consents to a
shorter period, the Partnership shall give written notice to the Trustee of the Redemption Date,
the principal amount of Debt Securities to be redeemed and the series and terms of the Debt
Securities pursuant to which such redemption will occur. Such notice shall be accompanied by an
Officers Certificate and an Opinion of Counsel from the Partnership to the effect that such
redemption will comply with the conditions herein, and such notice may be revoked at any time prior
to the giving of a notice of redemption to the Holders pursuant to this Section 3.02. If fewer
than all the Debt Securities of a series are to be redeemed, the record date relating to such
redemption shall be selected by the Partnership and given in writing to the Trustee, which record
date shall be not less than 15 days after the date of notice to the Trustee.
By 11 a.m., New York City time, on the Redemption Date for any Debt Securities, the
Partnership shall deposit with the Trustee or with a paying agent (or, if the Partnership is acting
as its own paying agent, segregate and hold in trust) an amount of money in Dollars (except as
provided pursuant to Section 2.03) sufficient to pay the redemption price of such Debt Securities
or any portions thereof that are to be redeemed on that date, together with any interest accrued to
the Redemption Date.
If less than all the Debt Securities of like tenor and terms of a series are to be redeemed
(other than pursuant to a mandatory sinking fund), the Trustee shall select, on a
pro rata
basis,
by lot or by such other method as in its sole discretion it shall deem appropriate and fair, the
Debt Securities of that series or portions thereof (in multiples of $1,000) to be redeemed. In any
case where more than one Debt Security of such series is registered in the same name, the Trustee
in its discretion may treat the aggregate principal amount so registered as if it were represented
by one Debt Security of such series. The Trustee shall promptly notify the
22
Partnership in writing
of the Debt Securities selected for redemption and, in the case of any Debt Securities selected for
partial redemption, the principal amount thereof to be redeemed. If any Debt Security called for
redemption shall not be so paid upon surrender thereof on such Redemption Date, the principal,
premium, if any, and interest shall bear interest until paid from the Redemption Date at the rate
borne by the Debt Securities of that series. If less than all the Debt Securities of unlike tenor
and terms of a series are to be redeemed, the particular Debt Securities to be redeemed shall be
selected by the Partnership. Provisions of this Indenture that apply to Debt Securities called for
redemption also apply to portions of Debt Securities called for redemption.
Section 3.03.
Payment of Debt Securities Called for Redemption
. If notice of redemption
has been given as provided in Section 3.02, the Debt Securities or portions of Debt Securities of
the series with respect to which such notice has been given shall become due and payable on the
date and at the Place or Places of Payment stated in such notice at the applicable redemption
price, together with any interest accrued to the Redemption Date, and on and after said date
(unless the Partnership shall default in the payment of such Debt Securities at the applicable
redemption price, together with any interest accrued to said date) any interest on the Debt
Securities or portions of Debt Securities of any series so called for redemption shall cease to
accrue, and any original issue discount in the case of Original Issue Discount Securities shall
cease to accrue. On presentation and surrender of such Debt Securities at the Place or Places of
Payment in said notice specified, the said Debt Securities or the specified portions thereof shall
be paid and redeemed by the Partnership at the applicable redemption price, together with any
interest accrued thereon to the Redemption Date.
Any Debt Security that is to be redeemed only in part shall be surrendered at the Place of
Payment with, if the Partnership, the Registrar or the Trustee so requires, due endorsement by, or
a written instrument of transfer in form satisfactory to the Partnership, the Registrar and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing, and the
Partnership shall execute, and the Trustee shall authenticate and deliver to the Holder of such
Debt Security without service charge, a new Debt Security or Debt Securities of the same series, of
like tenor and form, of any authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unredeemed portion of the principal of the Debt
Security so surrendered; except that if a Global Security is so surrendered, the Partnership shall
execute, and the Trustee shall authenticate and deliver to the Depositary for such Global Security,
without service charge, a new Global Security in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Global Security so surrendered. In the case of a Debt
Security providing appropriate space for such notation, at the option of the Holder thereof, the
Trustee, in lieu of delivering a new Debt Security or Debt Securities as aforesaid, may make a
notation on such Debt Security of the payment of the redeemed portion thereof.
Section 3.04.
Mandatory and Optional Sinking Funds
. The minimum amount of any sinking fund
payment provided for by the terms of Debt Securities of any series, resolution of the Board of
Directors or a supplemental Indenture is herein referred to as a mandatory sinking fund payment,
and any payment in excess of such minimum amount provided for by the terms of Debt Securities of
any series, resolution of the Board of Directors or a supplemental Indenture is herein referred to
as an optional sinking fund payment.
23
In lieu of making all or any part of any mandatory sinking fund payment with respect to any
Debt Securities of a series in cash, the Partnership may at its option (a) deliver to the Trustee
Debt Securities of that series theretofore purchased or otherwise acquired by the Partnership or
(b) receive credit for the principal amount of Debt Securities of that series which have been
redeemed either at the election of the Partnership pursuant to the terms of such Debt Securities or
through the application of permitted optional sinking fund payments pursuant to the terms of
such Debt Securities, resolution or supplemental Indenture; provided, that such Debt
Securities have not been previously so credited. Such Debt Securities shall be received and
credited for such purpose by the Trustee at the redemption price specified in such Debt Securities,
resolution or supplemental Indenture for redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
Section 3.05.
Redemption of Debt Securities for Sinking Fund
. Not less than 60 days prior
to each sinking fund payment date for any series of Debt Securities, the Partnership will deliver
to the Trustee an Officers Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, any resolution or supplemental
Indenture, the portion thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Debt Securities of that
series pursuant to this Section 3.05 (which Debt Securities, if not previously redeemed, will
accompany such certificate) and whether the Partnership intends to exercise its right to make any
permitted optional sinking fund payment with respect to such series. Such certificate shall also
state that no Event of Default has occurred and is continuing with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Partnership shall be obligated to make
the cash payment or payments therein referred to, if any, by 11 a.m., New York City time, on the
next succeeding sinking fund payment date. Failure of the Partnership to deliver such certificate
(or to deliver the Debt Securities specified in this paragraph) shall not constitute a Default, but
such failure shall require that the sinking fund payment due on the next succeeding sinking fund
payment date for that series shall be paid entirely in cash and shall be sufficient to redeem the
principal amount of such Debt Securities subject to a mandatory sinking fund payment without the
option to deliver or credit Debt Securities as provided in this Section 3.05 and without the right
to make any optional sinking fund payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused
balance of any preceding sinking fund payments made in cash which shall equal or exceed $100,000
(or a lesser sum if the Partnership shall so request) with respect to the Debt Securities of any
particular series shall be applied by the Trustee on the sinking fund payment date on which such
payment is made (or, if such payment is made before a sinking fund payment date, on the sinking
fund payment date following the date of such payment) to the redemption of such Debt Securities at
the redemption price specified in such Debt Securities, resolution or supplemental Indenture for
operation of the sinking fund together with any accrued interest to the date fixed for redemption.
Any sinking fund money not so applied or allocated by the Trustee to the redemption of Debt
Securities shall be added to the next cash sinking fund payment received by the Trustee for such
series and, together with such payment, shall be applied in accordance with the provisions of this
Section 3.05. Any and all sinking fund money with respect to the Debt Securities of any particular
series held by the Trustee on the last sinking fund payment date with respect to Debt Securities of
such series and not held for the payment or redemption of
24
particular Debt Securities shall be
applied by the Trustee, together with other money, if necessary, to be deposited sufficient for the
purpose, to the payment of the principal of the Debt Securities of that series at its Stated
Maturity.
The Trustee shall select the Debt Securities to be redeemed upon such sinking fund payment
date in the manner specified in the last paragraph of Section 3.02, and the Partnership shall cause
notice of the redemption thereof to be given in the manner provided in Section 3.02 except that the
notice of redemption shall also state that the Debt Securities are being redeemed by operation of
the sinking fund. Such notice having been duly given, the redemption of such Debt Securities shall
be made upon the terms and in the manner stated in Section 3.03.
The Trustee shall not redeem any Debt Securities of a series with sinking fund money or mail
any notice of redemption of such Debt Securities by operation of the sinking fund for such series
during the continuance of a Default in payment of interest on such Debt Securities or of any Event
of Default (other than an Event of Default occurring as a consequence of this paragraph) with
respect to such Debt Securities, except that if the notice of redemption of any such Debt
Securities shall theretofore have been mailed in accordance with the provisions hereof, the Trustee
shall redeem such Debt Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article III. Except as aforesaid,
any money in the sinking fund for such series at the time when any such Default or Event of Default
shall occur and any money thereafter paid into such sinking fund shall, during the continuance of
such Default or Event of Default, be held as security for the payment of such Debt Securities;
provided, however, that in case such Default or Event of Default shall have been cured or waived as
provided herein, such money shall thereafter be applied on the next sinking fund payment date for
such Debt Securities on which such money may be applied pursuant to the provisions of this
Section 3.05.
ARTICLE IV
PARTICULAR COVENANTS OF THE PARTNERSHIP
Section 4.01.
Payment of Principal of, and Premium, If Any, and Interest on, Debt
Securities
. The Partnership, for the benefit of each series of Debt Securities, will duly and
punctually pay or cause to be paid the principal of, and premium, if any, and interest on, each of
the Debt Securities at the place, at the respective times and in the manner provided herein or in
the Debt Securities. Each installment of interest on the Debt Securities (other than those
represented by a Global Security) may at the Partnerships option be paid by mailing checks for
such interest payable to the Person entitled thereto pursuant to Section 2.07(a) to the address of
such Person as it appears on the Debt Security Register.
Principal of and premium and interest on Debt Securities of any series shall be considered
paid on the date due if, by 11 a.m., New York City time, on such date the Trustee or any paying
agent holds in accordance with this Indenture money sufficient to pay all principal, premium and
interest then due and, in the case of Debt Securities subordinated pursuant to the terms of Article
XII, the Trustee or such paying agent, as the case may be, is not prohibited from paying such money
to the Holders on that date pursuant to the terms of this Indenture.
25
The Partnership shall pay interest on overdue principal or premium, if any, at the rate
specified therefor in the Debt Securities and it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
Section 4.02.
Maintenance of Offices or Agencies for Registration of Transfer, Exchange and
Payment of Debt Securities
. The Partnership will maintain in New York, New York and in any
other Place of Payment for any series of Debt Securities an office or agency where Debt Securities
of such series may be presented or surrendered for payment. Initially, such office or agency shall
be the office of the Trustee at 45 Broadway, 14
th
Floor, New York, New York 10006-3007.
The Partnership shall also maintain (in or outside such Place of Payment) an office or agency where
Debt Securities of such series may be surrendered for transfer or exchange and where notices and
demands to or upon the Partnership in respect of the Debt Securities of such series and this
Indenture may be served. Initially, such office or agency shall be the office of the Trustee
referred to in Section 13.03. The Partnership will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at any time the
Partnership shall fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and demands may be made
or served at the office of the Trustee referred to in Section 13.03, and the Partnership hereby
appoints the Trustee as its agent to receive all presentations, surrenders, notices and demands.
The Partnership may also from time to time designate different or additional offices or
agencies to be maintained for such purposes (in or outside of such Place of Payment), and may from
time to time rescind any such designation; provided, however, that no such designation or
rescission shall in any manner relieve the Partnership of its obligations described in the
preceding paragraph. The Partnership will give prompt written notice to the Trustee of any such
additional designation or rescission of designation and any change in the location of any such
different or additional office or agency.
Section 4.03.
Appointment to Fill a Vacancy in the Office of Trustee
. The Partnership,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner
provided in Section 7.08, a Trustee, so that there shall at all times be a Trustee hereunder with
respect to each series of Debt Securities.
Section 4.04.
Duties of Paying Agents, etc
. The Partnership shall cause each paying agent,
if any, other than the Trustee, to execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of this Section 4.04,
(i) that it will hold all sums held by it as such agent for the payment of the
principal of, and premium, if any, or interest on, the Debt Securities of any series
(whether such sums have been paid to it by the Partnership or by any other obligor on the
Debt Securities of such series) in trust for the benefit of the Holders of the Debt
Securities of such series;
(ii) that it will give the Trustee notice of any failure by the Partnership (or by any
other obligor on the Debt Securities of such series) to make any payment of the
26
principal
of, and premium, if any, or interest on, the Debt Securities of such series when the same
shall be due and payable; and
(iii) that it will at any time during the continuance of an Event of Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held by it as such
agent.
(b) If the Partnership shall act as its own paying agent, it will, by 11 a.m., New York City
time, on each due date of the principal of, and premium, if any, or interest on, the Debt
Securities of any series, set aside, segregate and hold in trust for the benefit of the Holders of
the Debt Securities of such series a sum sufficient to pay such principal, premium, if any, or
interest so becoming due. The Partnership will promptly notify the Trustee of any failure by the
Partnership to take such action or the failure by any other obligor on such Debt Securities to make
any payment of the principal of, and premium, if any, or interest on, such Debt Securities when the
same shall be due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the Partnership may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust by it or any paying agent, as
required by this Section 4.04, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Partnership or such paying agent.
(d) Whenever the Partnership shall have one or more paying agents with respect to any series
of Debt Securities, it will, prior to each due date of the principal of, and premium, if any, or
interest on, any Debt Securities of such series, deposit with any such paying agent a sum
sufficient to pay the principal, premium or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled thereto, and (unless any such paying agent is the Trustee)
the Partnership will promptly notify the Trustee of its action or failure so to act.
(e) Anything in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 4.04 is subject to the provisions of Section 11.05.
Section 4.05.
SEC Reports; Financial Statements
.
(a) The Partnership shall, so long as any of the Debt Securities are Outstanding, file with
the Trustee, within 15 days after it files the same with the SEC, copies of the annual reports and
the information, documents and other reports (or copies of such portions of any of the foregoing as
the SEC may by rules and regulations prescribe) that the Partnership is required to file with the
SEC pursuant to Section 13 or 15(d) of the Exchange Act. If the Partnership is not subject to the
requirements of such Section 13 or 15(d), the Partnership shall file with the Trustee, within 15
days after it would have been required to file the same with the SEC, financial statements,
including any notes thereto (and with respect to annual reports, an auditors report by a firm of
established national reputation), and a Managements Discussion and Analysis of Financial
Condition and Results of Operations, both comparable to that which the Partnership would have been
required to include in such annual reports, information, documents or other reports if the
Partnership had been subject to the requirements of such Section 13 or 15(d). The Partnership
shall also comply with the provisions of TIA Section 314(a).
27
(b) If the Partnership is required to furnish annual or quarterly reports to its capital
stockholders pursuant to the Exchange Act, the Partnership shall, so long as any of the Debt
Securities are outstanding, cause any annual report furnished to its capital stockholders
generally and any quarterly or other financial reports furnished by it to its capital stockholders
generally to be filed with the Trustee and mailed to the Holders in the manner and to the extent
provided in Section 5.03.
(c) The Partnership shall provide the Trustee with a sufficient number of copies of all
reports and other documents and information that the Trustee may be required to deliver to Holders
under this Section.
Section 4.06.
Compliance Certificate.
(a) The Partnership shall, so long as any of the Debt Securities are Outstanding, deliver to
the Trustee, within 120 days after the end of each fiscal year of the Partnership, an Officers
Certificate, on behalf of itself and each of the Subsidiary Guarantors, stating that a review of
the activities of the Partnership and its Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing Officers of the General Partner with a view to
determining whether each of the Partnership and the Subsidiary Guarantors has kept, observed,
performed and fulfilled its obligations under this Indenture, and further stating, as to each such
Officer signing such certificate, that to the best of his knowledge each of the Partnership and the
Subsidiary Guarantors has kept, observed, performed and fulfilled each and every covenant contained
in this Indenture and is not in default in the performance or observance of any of the terms,
provisions and conditions hereof, without regard to any grace period or requirement of notice
required by this Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which such Officer may have knowledge and what action the
Partnership or any Subsidiary Guarantor is taking or proposes to take with respect thereto) and
that to the best of his knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of, or premium, if any, or interest, if any, on the Debt
Securities are prohibited or, if such event has occurred, a description of the event and what
action the Partnership or any Subsidiary Guarantor is taking or proposes to take with respect
thereto.
(b) The Partnership shall, so long as any of the Debt Securities are Outstanding, deliver to
the Trustee within 30 days after the occurrence of any Default or Event of Default under this
Indenture, an Officers Certificate specifying such Default or Event of Default, the status thereof
and what curative action the Partnership is taking or proposes to take with respect thereto.
Section 4.07.
Further Instruments and Acts
. The Partnership will, upon request of the
Trustee, execute and deliver such further instruments and do such further acts as may reasonably be
necessary or proper to carry out more effectually the purposes of this Indenture.
Section 4.08.
Existence
. Except as permitted by Article X hereof, the Partnership shall do
or cause to be done all things necessary to preserve and keep in full force and effect its
existence and all rights (charter and statutory) and franchises of the Partnership, provided that
the Partnership shall not be required to
preserve any such right or franchise, if the Partnership shall
28
determine that the preservation
thereof is no longer desirable in the conduct of the business of the Partnership.
Section 4.09.
Maintenance of Properties
. The Partnership shall cause all properties owned
by the Partnership or any of its Subsidiaries or used or held for use in the conduct of its
business or the business of any such Subsidiary to be maintained and kept in good condition, repair
and working order (reasonable wear and tear excepted) and supplied with all necessary equipment and
will cause to be made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Partnership may be necessary so that the business carried on
in connection therewith may be properly and advantageously conducted at all times; provided that
nothing in this Section shall prevent the Partnership from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, in the judgment of the
Partnership, desirable in the conduct of its business or the business of any such Subsidiary and
not disadvantageous in any material respect to the Holders.
Section 4.10.
Payment of Taxes and Other Claims
. The Partnership shall pay or discharge or
cause to be paid or discharged, before the same shall become delinquent, (i) all taxes, assessments
and governmental charges levied or imposed upon the Partnership or any of its Subsidiaries or upon
the income, profits or property of the Partnership or any of its Subsidiaries, and (ii) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a Lien upon the
property of the Partnership or any of its Subsidiaries; provided that the Partnership shall not be
required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith by appropriate
proceedings.
Section 4.11.
Waiver of Certain Covenants
. The Partnership and the Subsidiary Guarantors
may, with respect to the Debt Securities of any series, omit in any particular instance to comply
with any covenant set forth in this Article IV (except Sections 4.01 through 4.08) or made
applicable to such Debt Securities pursuant to Section 2.03, if, before or after the time for such
compliance, the Holders of at least a majority in principal amount of the Outstanding Debt
Securities of each series affected, waive such compliance in such instance with such covenant, but
no such waiver shall extend to or affect such covenant except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Partnership and the
Subsidiary Guarantors and the duties of the Trustee in respect of any such covenant shall remain in
full force and effect.
ARTICLE V
HOLDERS LISTS AND REPORTS BY THE TRUSTEE
Section 5.01.
Partnership to Furnish Trustee Information as to Names and Addresses of Holders;
Preservation of Information
. The Partnership covenants and agrees that it will furnish or cause to be furnished to the
Trustee with respect to the Debt Securities of each series:
29
(a) not more than 10 days after each record date with respect to the payment of interest, if
any, a list, in such form as the Trustee may reasonably require, of the names and addresses of the
Holders as of such record date, and
(b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Partnership of any such request, a list of similar form and contents as of a date
not more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee shall be the Registrar, such lists shall not be
required to be furnished.
The Trustee shall preserve, in as current a form as is reasonably practicable, all information
as to the names and addresses of the Holders (i) contained in the most recent list furnished to it
as provided in this Section 5.01 or (ii) received by it in the capacity of paying agent or
Registrar (if so acting) hereunder.
The Trustee may destroy any list furnished to it as provided in this Section 5.01 upon receipt
of a new list so furnished.
Section 5.02.
Communications to Holders
. Holders may communicate pursuant to
Section 312(b) of the TIA with other Holders with respect to their rights under this Indenture or
the Debt Securities. The Partnership, the Trustee, the Registrar and anyone else shall have the
protection of Section 312(c) of the TIA.
Section 5.03.
Reports by Trustee
. Within 60 days after each January 31, beginning with the
first January 31 following the date of this Indenture, and in any event on or before April 1 in
each year, the Trustee shall mail to Holders a brief report dated as of such January 31 that
complies with TIA Section 313(a); provided, however, that if no event described in TIA
Section 313(a) has occurred within the twelve months preceding the reporting date, no report need
be transmitted. The Trustee also shall comply with TIA Section 313(b).
Reports pursuant to this Section 5.03 shall be transmitted by mail:
(a) to all Holders, as the names and addresses of such Holders appear in the Debt Security
Register; and
(b) except in the cases of reports under Section 313(b)(2) of the TIA, to each Holder of a
Debt Security of any series whose name and address appear in the information preserved at the time
by the Trustee in accordance with Section 5.01.
A copy of each report at the time of its mailing to Holders shall be filed with the SEC and
each stock exchange (if any) on which the Debt Securities of any series are listed. The
Partnership agrees to notify promptly the Trustee whenever the Debt Securities of any series
become listed on any stock exchange and of any delisting thereof.
Section 5.04.
Record Dates for Action by Holders
. If the Partnership shall solicit from
the Holders of Debt Securities of any series any action (including the making of any demand or
request, the giving of any direction, notice, consent or waiver or the taking of any
30
other action),
the Partnership may, at its option, by resolution of the Board of Directors, fix in advance a
record date for the determination of Holders of Debt Securities entitled to take such action, but
the Partnership shall have no obligation to do so. Any such record date shall be fixed at the
Partnerships discretion. If such a record date is fixed, such action may be sought or given
before or after the record date, but only the Holders of Debt Securities of record at the close of
business on such record date shall be deemed to be Holders of Debt Securities for the purpose of
determining whether Holders of the requisite proportion of Debt Securities of such series
Outstanding have authorized or agreed or consented to such action, and for that purpose the Debt
Securities of such series Outstanding shall be computed as of such record date.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
Section 6.01.
Events of Default
. If any one or more of the following shall have occurred
and be continuing with respect to Debt Securities of any series (each of the following, an Event
of Default):
(a) default in the payment of any installment of interest upon any Debt Securities of that
series as and when the same shall become due and payable, whether or not such payment shall be
prohibited by Article XII, if applicable, and continuance of such default for a period of 30 days;
or
(b) default in the payment of the principal of or premium, if any, on any Debt Securities of
that series as and when the same shall become due and payable, whether at Stated Maturity, upon
redemption, by declaration, upon required repurchase or otherwise, whether or not such payment
shall be prohibited by Article XII, if applicable; or
(c) default in the payment of any sinking fund payment with respect to any Debt Securities of
that series as and when the same shall become due and payable; or
(d) failure on the part of the Partnership, or if any series of Debt Securities Outstanding
under this Indenture is entitled to the benefits of a Guarantee, any of the Subsidiary Guarantors,
duly to observe or perform any other of the covenants or agreements on the part of the Partnership,
or, if applicable, any of the Subsidiary Guarantors, in the Debt Securities of that series, in any
resolution of the Board of Directors authorizing the issuance of that series of Debt Securities, in
this Indenture with respect to such series or in any supplemental Indenture with respect to such
series (other than a covenant a default in the performance of which is elsewhere in this Section
specifically dealt with), continuing for a period of 60 days after the date on which written notice
specifying such failure and requiring the Partnership, or if applicable, the
Subsidiary Guarantor, to remedy the same shall have been given, to the Partnership, or if
applicable, the Subsidiary Guarantor, by the Trustee or to the Partnership, or if applicable, the
Subsidiary Guarantor, and the Trustee by the Holders of at least 25% in aggregate principal amount
of the Debt Securities of that series at the time Outstanding; or
(e) the Partnership, or if any series of Debt Securities Outstanding under this Indenture is
entitled to the benefits of a Guarantee, any of the Subsidiary Guarantors, pursuant to or within
the meaning of any Bankruptcy Law,
31
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or for all or substantially all
of its property; or
(iv) makes a general assignment for the benefit of its creditors;
(f) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Partnership, or if any series of Debt Securities
Outstanding under this Indenture is entitled to the benefits of a Guarantee, any of the
Subsidiary Guarantors, as debtor in an involuntary case,
(ii) appoints a Custodian of the Partnership, or if any series of Debt Securities
Outstanding under this Indenture is entitled to the benefits of a Guarantee, any of the
Subsidiary Guarantors, or a Custodian for all or substantially all of the property of the
Partnership, or if applicable, any of the Subsidiary Guarantors, or
(iii) orders the liquidation of the Partnership, or if any series of Debt Securities
Outstanding under this Indenture is entitled to the benefits of a Guarantee, any of the
Subsidiary Guarantors,
and the order or decree remains unstayed and in effect for 60 days;
(g) if any series of Debt Securities Outstanding under this Indenture is entitled to the
benefits of a Guarantee, the Guarantee of any of the Subsidiary Guarantors ceases to be in full
force and effect with respect to Debt Securities of that series (except as otherwise provided in
this Indenture) or is declared null and void in a judicial proceeding or any of the Subsidiary
Guarantors denies or disaffirms its obligations under this Indenture or such Guarantee; or
(h) any other Event of Default provided with respect to Debt Securities of that series;
then and in each and every case that an Event of Default described in clause (a), (b), (c), (d),
(g), or (h) with respect to Debt Securities of that series at the time Outstanding occurs and is
continuing, unless the principal of, premium, if any, and interest on all the Debt Securities of
that series shall have already become due and payable, either the Trustee or the Holders of not
less
than 25% in aggregate principal amount of the Debt Securities of that series then Outstanding
hereunder, by notice in writing to the Partnership (and to the Trustee if given by Holders), may
declare the entire principal of (or, if the Debt Securities of that series are Original Issue
Discount Debt Securities, such portion of the principal amount as may be specified in the terms of
that series), premium, if any, and accrued and unpaid interest on all the Debt Securities of that
series to be due and payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Indenture or in the Debt Securities of that
series contained to the contrary notwithstanding. If an Event of Default described in clause (e)
or (f) occurs, then and in each and every such case, unless the principal of and interest on all
the
32
Debt Securities shall have become due and payable, the entire principal of (or, if any Debt
Securities are Original Issue Discount Debt Securities, such portion of the principal amount as may
be specified in the terms of that series), premium, if any, and accrued and unpaid interest on all
the Debt Securities then Outstanding hereunder shall
ipso facto
become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any Holders, anything in
this Indenture or in the Debt Securities contained to the contrary notwithstanding.
The Holders of a majority in aggregate principal amount of the Debt Securities of a particular
series by written notice to the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree of a court of competent jurisdiction
already rendered and if all existing Events of Default with respect to Debt Securities of that
series have been cured or waived except nonpayment of principal, premium, if any, or interest that
has become due solely because of acceleration. Upon any such rescission, the parties hereto shall
be restored respectively to their several positions and rights hereunder, and all rights, remedies
and powers of the parties hereto shall continue as though no such proceeding had been taken.
Section 6.02.
Collection of Debt by Trustee, etc.
If an Event of Default occurs and is
continuing, the Trustee, in its own name and as trustee of an express trust, shall be entitled and
empowered to institute any action or proceedings at law or in equity for the collection of the sums
so due and unpaid or enforce the performance of any provision of the Debt Securities of the
affected series or this Indenture, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against any of the Subsidiary
Guarantors or the Partnership or any other obligor upon the Debt Securities of such series (and
collect in the manner provided by law out of the property of any of the Subsidiary Guarantors or
the Partnership or any other obligor upon the Debt Securities of such series wherever situated the
money adjudged or decreed to be payable).
In case there shall be pending proceedings for the bankruptcy or for the reorganization of any
of the Subsidiary Guarantors or the Partnership or any other obligor upon the Debt Securities of
any series under any Bankruptcy Law, or in case a Custodian shall have been appointed for its
property, or in case of any other similar judicial proceedings relative to any of the Subsidiary
Guarantors or the Partnership or any other obligor upon the Debt Securities of any series, its
creditors or its property, the Trustee, irrespective of whether the principal of Debt Securities of
any series shall then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this
Section 6.02, shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of principal, premium, if
any, and interest (or, if the Debt Securities of such series are Original Issue Discount Debt
Securities, such portion of the principal amount as may be specified in the terms of such series)
owing and unpaid in respect of the Debt Securities of such series, and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the Trustee (including
any claim for reasonable compensation to the Trustee, its agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances made, by the Trustee
except as a result of its negligence or bad faith) and of the Holders thereof allowed in any such
judicial proceedings relative to any of the Subsidiary Guarantors or the Partnership, or any other
obligor upon the Debt Securities of such series, its creditors or its property, and to collect and
33
receive any money or other property payable or deliverable on any such claims, and to distribute
all amounts received with respect to the claims of such Holders and of the Trustee on their behalf,
and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each
of such Holders to make payments to the Trustee, and, in the event that the Trustee shall consent
to the making of payments directly to such Holders, to pay to the Trustee such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other reasonable expenses and liabilities incurred, and all advances made, by the Trustee
except as a result of its negligence or bad faith.
All rights of action and of asserting claims under this Indenture, or under any of the Debt
Securities of any series, may be enforced by the Trustee without the possession of any such Debt
Securities, or the production thereof in any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of
an express trust, and any recovery of judgment (except for any amounts payable to the Trustee
pursuant to Section 7.06) shall be for the ratable benefit of the Holders of all the Debt
Securities in respect of which such action was taken.
In case of an Event of Default hereunder the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or
in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power granted in this
Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Section 6.03.
Application of Money Collected by Trustee
. Any money or other property
collected by the Trustee pursuant to Section 6.02 with respect to Debt Securities of any series
shall be applied, after giving effect to the provisions of Article XII, if applicable, in the order
following, at the date or dates fixed by the Trustee for the distribution of such money or other
property, upon presentation of the several Debt Securities of such series in respect of which money
or other property have been collected, and the notation thereon of the payment, if only partially
paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all money due the Trustee pursuant to Section 7.06;
SECOND: In case the principal of the Outstanding Debt Securities in respect of which such
money has been collected shall not have become due, to the payment of interest on the Debt
Securities of such series in the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the Trustee) upon the overdue
installments of interest at the rate or Yield to Maturity (in the case of Original Issue Discount
Debt Securities) borne by the Debt Securities of such series, such payments to be made ratably to
the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Outstanding Debt Securities in respect of which such
money has been collected shall have become due, by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon the Debt Securities of such series for principal and
premium, if any, and interest, with interest on the overdue principal and premium, if any,
34
and (to
the extent that such interest has been collected by the Trustee) upon overdue installments of
interest at the rate or Yield to Maturity (in the case of Original Issue Discount Debt Securities)
borne by the Debt Securities of such series; and, in case such money shall be insufficient to pay
in full the whole amount so due and unpaid upon the Debt Securities of such series, then to the
payment of such principal and premium, if any, and interest, without preference or priority of
principal and premium, if any, over interest, or of interest over principal and premium, if any, or
of any installment of interest over any other installment of interest, or of any Debt Security of
such series over any Debt Security of such series, ratably to the aggregate of such principal and
premium, if any, and interest; and
FOURTH: The remainder, if any, shall be paid to any of the Subsidiary Guarantors or the
Partnership, as applicable, its successors or assigns, or to whomsoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 6.03. At least 15 days before such record date, the Partnership shall mail to each Holder
and the Trustee a notice that states the record date, the payment date and amount to be paid.
Section 6.04.
Limitation on Suits by Holders
. No Holder of any Debt Security of any series
shall have any right by virtue or by availing of any provision of this Indenture to institute any
action or proceeding at law or in equity or in bankruptcy or otherwise, upon or under or with
respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written notice of an Event
of Default with respect to Debt Securities of that same series and of the continuance thereof and
unless the Holders of not less than 25% in aggregate principal amount of the Outstanding Debt
Securities of that series shall have made written request upon the Trustee to institute such action
or proceedings in respect of such Event of Default in its own name as Trustee hereunder and shall
have offered to the Trustee such reasonable indemnity or security as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity or security shall have failed to
institute any such action or proceedings and no direction inconsistent with such written request
shall have been given to the Trustee pursuant to Section 6.06; it being understood and intended,
and being expressly covenanted by
the Holder of every Debt Security with every other Holder and the Trustee, that no one or more
Holders shall have any right in any manner whatever by virtue or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any Holders, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and common benefit of
all such Holders. For the protection and enforcement of the provisions of this Section 6.04, each
and every Holder and the Trustee shall be entitled to such relief as can be given either at law or
in equity.
Notwithstanding any other provision in this Indenture, however, the right of any Holder of any
Debt Security to receive payment of the principal of, and premium, if any, and (subject to
Section 2.12) interest on, such Debt Security, on or after the respective due dates expressed in
such Debt Security, and to institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such Holder.
35
Section 6.05.
Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of
Default
. All powers and remedies given by this Article VI to the Trustee or to the Holders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or the Holders, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and agreements contained in
this Indenture, and no delay or omission of the Trustee or of any Holder to exercise any right or
power accruing upon any Default occurring and continuing as aforesaid, shall impair any such right
or power, or shall be construed to be a waiver of any such Default or an acquiescence therein; and,
subject to the provisions of Section 6.04, every power and remedy given by this Article VI or by
law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Holders.
Section 6.06.
Rights of Holders of Majority in Principal Amount of Debt Securities to Direct
Trustee and to Waive Default
. The Holders of not less than a majority in aggregate principal
amount of the Debt Securities of any series at the time Outstanding shall have the right to direct
the time, method, and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any right, trust or power conferred on the Trustee, with respect to the Debt
Securities of such series; provided, however, that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture, and that subject to the provisions of
Section 7.01, the Trustee shall have the right to decline to follow any such direction if the
Trustee being advised by counsel shall determine that the action so directed may not lawfully be
taken or is inconsistent with any provision of this Indenture, or if the Trustee shall by a
responsible officer or officers determine that the action so directed would involve it in personal
liability or would be unduly prejudicial to Holders of Debt Securities of such series not taking
part in such direction; and provided, further, however, that nothing contained in this Indenture
shall impair the right of the Trustee to take any action deemed proper by the Trustee and which is
not inconsistent with such direction by such Holders. The Holders of not less than a majority in
aggregate principal amount of the Debt Securities of that series at the time Outstanding may on
behalf of the Holders of all the Debt
Securities of that series waive any past Default or Event of Default and its consequences for that
series, except a Default or Event of Default in the payment of the principal of, and premium, if
any, or interest on, any of the Debt Securities and a Default or Event of Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of each Holder affected
thereby. In case of any such waiver, such Default shall cease to exist, any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this Indenture, and the
Subsidiary Guarantors, the Partnership, the Trustee and the Holders of the Debt Securities of that
series shall be restored to their former positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other Default or Event of Default or impair any right
consequent thereon.
Section 6.07.
Trustee to Give Notice of Defaults Known to It, but May Withhold Such Notice in
Certain Circumstances
. The Trustee shall, within 90 days after the occurrence of a Default
known to it with respect to a series of Debt Securities, give to the Holders thereof, in the manner
provided in Section 13.03, notice of all Defaults with respect to such series known to the Trustee,
unless such Defaults shall have been cured or waived before the giving of such notice; provided,
that, except in the case of Default in the payment of the principal of, or premium, if any, or
interest on, any of the Debt Securities of such series or in the making of any sinking fund payment
with respect to the Debt Securities of such series, the Trustee shall be
36
protected in withholding
such notice if and so long as the board of directors, the executive committee, or a committee of
directors or responsible officers, of the Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders thereof.
Section 6.08.
Requirement of an Undertaking to Pay Costs in Certain Suits under the Indenture
or Against the Trustee
. All parties to this Indenture agree, and each Holder of any Debt
Security by his acceptance thereof shall be deemed to have agreed, that any 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 it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit in the manner and to
the extent provided in the TIA, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys fees and expenses, 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; but
the provisions of this Section 6.08 shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate more than 25 percent
in principal amount of the Outstanding Debt Securities of that series or to any suit instituted by
any Holder for the enforcement of the payment of the principal of, or premium, if any, or interest
on, any Debt Security on or after the due date for such payment expressed in such Debt Security.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01.
Certain Duties and Responsibilities
. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiving of
all Events of Default which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of Default has occurred
(which has not been cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure to act, its own bad faith or its own willful
misconduct, except that:
(a) this paragraph shall not be construed to limit the effect of the first paragraph of this
Section 7.01;
(b) prior to the occurrence of an Event of Default with respect to the Debt Securities of a
series and after the curing or waiving of all Events of Default with respect to such series which
may have occurred:
(i) the duties and obligations of the Trustee with respect to Debt Securities of any
series shall be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties and obligations with
respect to such series as are specifically set forth in this Indenture, and no implied
covenants or obligations with respect to such series shall be read into this Indenture
against the Trustee;
37
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates or opinions
which by any provision hereof 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;
(iii) the Trustee shall not be liable for an error of judgment made in good faith by a
responsible officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iv) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it with respect to Debt Securities of any series in good faith in accordance with
the direction of the Holders of not less than a majority in aggregate principal amount of
the Outstanding Debt Securities of that 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, under this Indenture with respect to Debt Securities of
such series.
None of the provisions of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any personal financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
Section 7.02.
Certain Rights of Trustee
. Except as otherwise provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note or other paper or document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Partnership mentioned herein shall be
sufficiently evidenced by a Partnership Order or Partnership Request (unless other evidence in
respect thereof be herein specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant
Secretary of the General Partner;
(c) the Trustee may consult with counsel, and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of any
38
action taken or
suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Holders of Debt Securities of
any series pursuant to the provisions of this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it in good faith and
reasonably believed by it to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(f) prior to the occurrence of an Event of Default and after the curing of all Events of
Default which may have occurred, the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, approval or other paper or document, unless requested
in writing to do so by the Holders of a majority in aggregate principal amount of the then
Outstanding Debt Securities of a series affected by such matter; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is not, in the opinion of the Trustee,
reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such costs, expenses or liabilities as a
condition to so
proceeding, and the reasonable expense of every such investigation shall be paid by the
Partnership or, if paid by the Trustee, shall be repaid by the Partnership upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed by it
with due care hereunder; and
(h) if any property other than cash shall at any time be subject to a Lien in favor of the
Holders, the Trustee, if and to the extent authorized by a receivership or bankruptcy court of
competent jurisdiction or by the supplemental instrument subjecting such property to such Lien,
shall be entitled to make advances for the purpose of preserving such property or of discharging
tax Liens or other prior Liens or encumbrances thereon.
Section 7.03.
Trustee Not Liable for Recitals in Indenture or in Debt Securities
. The
recitals contained herein, in the Debt Securities (except the Trustees certificate of
authentication) shall be taken as the statements of the Partnership, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Debt Securities of any series, except that the
Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate
the Debt Securities and perform its obligations hereunder, and that the statements made by it or to
be made by it in a Statement of Eligibility and Qualification on Form T-1 supplied to the
Partnership are true and accurate. The Trustee shall not be accountable for the use or application
by the Partnership of any of the Debt Securities or of the proceeds thereof.
39
Section 7.04.
Trustee, Paying Agent or Registrar May Own Debt Securities
. The Trustee or
any paying agent or Registrar, in its individual or any other capacity, may become the owner or
pledgee of Debt Securities and subject to the provisions of the TIA relating to conflicts of
interest and preferential claims may otherwise deal with the Partnership with the same rights it
would have if it were not Trustee, paying agent or Registrar.
Section 7.05.
Money Received by Trustee to Be Held in Trust
. Subject to the provisions of
Section 11.05, all money received by the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which it was received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no liability for interest
on any money received by it hereunder. So long as no Event of Default shall have occurred and be
continuing, all interest allowed on any such money shall be paid from time to time to the
Partnership upon a Partnership Order.
Section 7.06.
Compensation and Reimbursement
. The Partnership covenants and agrees to pay
in Dollars to the Trustee from time to time, and the Trustee shall be entitled to, reasonable
compensation for all services rendered by it hereunder (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust), including, without
limitation, paying agent and Registrar, and, except as
otherwise expressly provided herein, the Partnership will pay or reimburse in Dollars the Trustee
upon its request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents, attorneys and counsel and of all
Persons not regularly in its employ), including without limitation, Section 6.02, except any such
expense, disbursement or advances as may arise from its negligence, willful misconduct or bad
faith. The Partnership also covenants to indemnify and defend the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence, willful misconduct or
bad faith on the part of the Trustee, arising out of or in connection with the acceptance or
administration of this trust or trusts hereunder, including the reasonable costs and expenses of
defending itself against any claim of liability in connection with the exercise or performance of
any of its powers or duties hereunder. The obligations of the Partnership under this Section 7.06
to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional Debt hereunder and shall survive the
satisfaction and discharge of this Indenture. The Partnership and the Holders agree that such
additional Debt shall be secured by a Lien prior to that of the Debt Securities upon all property
and funds held or collected by the Trustee, as such, except funds held in trust for the payment of
principal of, and premium, if any, or interest on, particular Debt Securities.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(e) or (f) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
Section 7.07.
Right of Trustee to Rely on an Officers Certificate Where No Other Evidence
Specifically Prescribed
. Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein specifically
40
prescribed)
may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
Section 7.08.
Separate Trustee; Replacement of Trustee
. The Partnership may, but need not,
appoint a separate Trustee for any one or more series of Debt Securities. The Trustee may resign
with respect to one or more or all series of Debt Securities at any time by giving notice to the
Partnership. The Holders of a majority in principal amount of the Debt Securities of a particular
series may remove the Trustee for such series and only such series by so notifying the Trustee and
may appoint a successor Trustee. The Partnership may at any time remove the Trustee with respect
to the Debt Securities of any particular series by giving the Trustee written notice of removal and
thereupon appoint a successor trustee,
provided
that (i) no Default exists at time of such
removal, (ii) such Trustee was not appointed by the Holders of such series pursuant to this Section
7.8 and (iii) the
corporate trust business of the successor Trustee is of nationally recognized standing. The
Partnership shall remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a Custodian takes charge of the Trustee or its property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Partnership or by the Holders of a majority in principal
amount of the Debt Securities of a particular series and such Holders do not reasonably promptly
appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the
Trustee in such event being referred to herein as the retiring Trustee), the Partnership shall
promptly appoint a successor Trustee. No resignation or removal of the Trustee and no appointment
of a successor Trustee shall become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of this Section 7.08.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Partnership. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders of Debt Securities of each applicable series. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, subject to the Lien provided for in
Section 7.06.
If a successor Trustee does not take office within 60 days after the retiring Trustee gives
notice of resignation or is removed, the retiring Trustee or the Holders of 25% in principal amount
of the Debt Securities of any applicable series may petition any court of competent jurisdiction
for the appointment of a successor Trustee for the Debt Securities of such series.
41
If the Trustee fails to comply with Section 7.10, any Holder of Debt Securities of any
applicable series may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee for the Debt Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.08, the
Partnerships obligations under Section 7.06 shall continue for the benefit of the retiring
Trustee.
In the case of the appointment hereunder of a separate or successor Trustee with respect to
the Debt Securities of one or more series, the Partnership, any retiring Trustee and each successor
or separate Trustee with respect to the Debt Securities of any applicable series shall execute and
deliver an Indenture supplemental hereto (i) which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties of any retiring
Trustee with respect to the Debt Securities of any series as to which any such retiring Trustee is
not retiring shall continue to be vested in such retiring Trustee and (ii) that shall add to or
change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one trustee, it being understood that
nothing herein or in such supplemental Indenture shall constitute such Trustees co-trustees of
the same trust and that each such separate, retiring or successor Trustee shall be Trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any
other such Trustee.
Section 7.09.
Successor Trustee by Merger
. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or transferee corporation or
banking association without any further act shall be the successor Trustee.
In case at the time such successor or successors to the Trustee by merger, conversion or
consolidation shall succeed to the trusts created by this Indenture any of the Debt Securities
shall have been authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such Debt Securities so
authenticated; and in case at that time any of the Debt Securities shall not have been
authenticated, any successor to the Trustee may authenticate such Debt Securities either in the
name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the Debt Securities or in
this Indenture provided that the certificate of the Trustee shall have.
Section 7.10.
Eligibility; Disqualification
. The Trustee shall at all times satisfy the
requirements of Section 310(a) of the TIA. The Trustee shall have a combined capital and surplus
of at least $50,000,000 as set forth in its most recent published annual report of condition. No
obligor upon the Debt Securities of a particular series or Person directly or indirectly
controlling, controlled by or under common control with such obligor shall serve as Trustee for the
Debt Securities of such series. The Trustee shall comply with Section 310(b) of the TIA; provided,
however, that there shall be excluded from the operation of Section 310(b)(1) of the TIA this
Indenture or any indenture or indentures under which other securities or certificates of interest
or participation in other securities of the Partnership are outstanding if the requirements for
such exclusion set forth in Section 310(b)(1) of the TIA are met.
42
Section 7.11.
Preferential Collection of Claims Against Partnership
. The Trustee shall
comply with Section 311(a) of the TIA, excluding any creditor relationship listed in Section 311(b)
of the TIA. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the
TIA to the extent indicated therein.
Section 7.12.
Compliance with Tax Laws
. The Trustee hereby agrees to comply with all U.S.
Federal income tax information reporting and withholding requirements applicable to it with respect
to payments of premium (if any) and interest on the Debt Securities, whether acting as Trustee,
Registrar, paying agent or otherwise with respect to the Debt Securities.
ARTICLE VIII
CONCERNING THE HOLDERS
Section 8.01.
Evidence of Action by Holders
. Whenever in this Indenture it is provided
that the Holders of a specified percentage in aggregate principal amount of the Debt Securities of
any or all series may take action (including the making of any demand or request, the giving of any
direction, notice, consent or waiver or the taking of any other action) the fact that at the time
of taking any such action the Holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor executed by Holders
in Person or by agent or proxy appointed in writing, (b) by the record of the Holders voting in
favor thereof at any meeting of Holders duly called and held in accordance with the provisions of
this Indenture, (c) by a combination of such instrument or instruments and any such record of such
a meeting of Holders or (d) in the case of Debt Securities evidenced by a Global Security, by any
electronic transmission or other message, whether or not in written format, that complies with the
Depositarys applicable procedures.
Section 8.02.
Proof of Execution of Instruments and of Holding of Debt Securities
. Subject
to the provisions of Sections 7.01, 7.02 and 13.09, proof of the execution of any instrument by a
Holder or his agent or proxy shall be sufficient if made in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. The ownership of Debt Securities of any series shall be proved by the Debt Security
Register or by a certificate of the Registrar for such series. The Trustee may require such
additional proof of any matter referred to in this Section 8.02 as it shall deem necessary.
Section 8.03.
Who May Be Deemed Owner of Debt Securities
. Prior to due presentment for
registration of transfer of any Debt Security, the Partnership, the Subsidiary Guarantors, the
Trustee, any paying agent and any Registrar may deem and treat the Person in whose name any Debt
Security shall be registered upon the books of the Partnership as the absolute owner of such Debt
Security (whether or not such Debt Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or on account of the
principal of and premium, if any, and (subject to Section 2.12) interest on such Debt Security and
for all other purposes, and neither the Partnership nor the Subsidiary Guarantors nor the Trustee
nor any paying agent nor any Registrar shall be affected by any notice to the contrary; and all
such payments so made to any such Holder for the time being, or upon his order, shall be valid and,
to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for
money payable upon any such Debt Security.
43
None of the Partnership, the Subsidiary Guarantors, the Trustee or any agent of the Trustee,
any paying agent or any Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests, or for any action taken or any failure to act by a Depositary
with respect to any Debt Securities including, without limitation, any failure of the owner of a
beneficial interest in such Debt Securities to receive any payments or notices provided hereunder
or for the selection of beneficial interests in such Debt Securities to be redeemed.
Section 8.04.
Instruments Executed by Holders Bind Future Holders
. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any
action by the Holders of the percentage in aggregate principal amount of the Debt Securities of any
series specified in this Indenture in connection with such action and subject to the following
paragraph, any Holder of a Debt Security which is shown by the evidence to be included in the Debt
Securities the Holders of which have consented to such action may, by filing written notice with
the Trustee at its corporate trust office and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Debt Security. Except as aforesaid any such action
taken by the Holder of any Debt Security shall be conclusive and binding upon such Holder and upon
all future Holders and owners of such Debt Security and of any Debt Security issued upon transfer
thereof or in exchange or substitution therefor, irrespective of whether or not any notation in
regard thereto is made upon such Debt Security or such other Debt Securities. Any action taken by
the Holders of the percentage in aggregate principal amount of the Debt Securities of any series
specified in this Indenture in connection with such action shall be conclusively binding upon the
Partnership, the Subsidiary Guarantors, the Trustee and the Holders of all the Debt Securities of
such series.
The Partnership may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders of Debt Securities entitled to give their consent or take any other action
required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were Holders of Debt
Securities at such record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to take any such action,
whether or not such Persons continue to be Holders of Debt Securities after such record date. No
such consent shall be valid or effective for more than 120 days after such record date unless the
consent of the Holders of the percentage in aggregate principal amount of the Debt Securities of
such series specified in this Indenture shall have been received within such 120-day period.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01.
Purposes for Which Supplemental Indenture May Be Entered into Without Consent of
Holders
. The Partnership, the Subsidiary Guarantors and the Trustee may from time to time and
at any time, without the consent of Holders, enter into an Indenture or Indentures supplemental
hereto (which shall conform to the provisions of the TIA as in force at the date of the execution
thereof) for one or more of the following purposes:
44
(a) to evidence the succession pursuant to Article X of another Person to the Partnership, or
successive successions, and the assumption by the Successor Partnership (as defined in
Section 10.01) of the covenants, agreements and obligations of the Partnership in this Indenture
and in the Debt Securities;
(b) to surrender any right or power herein conferred upon the Partnership or the Subsidiary
Guarantors, to add to the covenants of the Partnership or the Subsidiary Guarantors such further
covenants, restrictions, conditions or provisions for the protection of the Holders of all or any
series of Debt Securities (and if such covenants are to be for the benefit of less than all series
of Debt Securities, stating that such covenants are expressly being included solely for the benefit
of such series) as the Board of Directors shall consider to be for the protection of the Holders of
such Debt Securities, and to make the occurrence, or the occurrence and continuance, of a Default
in any of such additional covenants, restrictions, conditions or provisions a Default or an Event
of Default permitting the enforcement of all or any of the several remedies provided in this
Indenture; provided, that in respect of any such additional covenant, restriction, condition or
provision such supplemental Indenture may provide for a particular period of grace after Default
(which period may be shorter or longer than that allowed in the case of other Defaults) or may
provide for an immediate enforcement upon such Default or may limit the remedies available to the
Trustee upon such Default or may limit the right of the Holders of a majority in aggregate
principal amount of any or all series of Debt Securities to waive such default;
(c) to cure any ambiguity or omission or to correct or supplement any provision contained
herein, in any supplemental Indenture or in any Debt Securities of any series that may be defective
or inconsistent with any other provision contained herein, in any supplemental Indenture or in the
Debt Securities of such series;
(d) to permit the qualification of this Indenture or any Indenture supplemental hereto under
the TIA as then in effect, except that nothing herein contained shall permit or authorize the
inclusion in any Indenture supplemental hereto of the provisions referred to in Section 316(a)(2)
of the TIA;
(e) to change or eliminate any restrictions on the payment of principal of, or premium, if
any, on, any Debt Securities of any series; provided, that any such action shall not adversely
affect the interests of the Holders of Debt Securities of such series in any material respect;
(f) to reflect the release of any Subsidiary Guarantor in accordance with Article XIV;
(g) in the case of any Debt Securities subordinated pursuant to Article XII, to make any
change in Article XII that would limit or terminate the benefits available to any holder of Senior
Indebtedness (or Representatives therefor) under Article XII;
(h) to add Subsidiary Guarantors with respect to any or all of the Debt Securities or to
secure any or all of the Debt Securities or a Guarantee;
(i) to make any change that does not adversely affect the rights of any Holder;
45
(j) to add to, change or eliminate any of the provisions of this Indenture in respect of one
or more series of Debt Securities; provided, however, that any such addition, change or elimination
not otherwise permitted under this Section 9.01 shall neither apply to any Debt Security of any
series created prior to the execution of such supplemental Indenture and entitled to the benefit of
such provision nor modify the rights of the Holder of any such Debt Security with respect to such
provision or shall become effective only when there is no such Debt Security Outstanding;
(k) to evidence and provide for the acceptance of appointment hereunder by a successor or
separate Trustee with respect to the Debt Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; and
(l) to establish the form or terms of Debt Securities of any series as permitted by Sections
2.01 and 2.03.
The Trustee is hereby authorized to join with the Partnership and the Subsidiary Guarantors in
the execution of any such supplemental Indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance, transfer, assignment,
mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into
any such supplemental Indenture which affects the Trustees own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental Indenture authorized by the provisions of this Section 9.01 may be executed
by the Partnership, the Subsidiary Guarantors and the Trustee without the consent of the Holders of
any of the Debt Securities at the time Outstanding, notwithstanding any of the provisions of
Section 9.02.
In the case of Debt Securities subordinated pursuant to Article XII, an amendment under this
Section 9.01 may not make any change that adversely affects the rights under Article XII of any
holder of Senior Indebtedness then outstanding unless the holders of such Senior Indebtedness (or
any group or Representative thereof authorized to give a consent) consents to such change.
Section 9.02.
Modification of Indenture with Consent of Holders of Debt Securities
.
Without notice to any Holder but with the consent (evidenced as provided in Section 8.01) of the
Holders of not less than a majority in aggregate principal amount of the Outstanding Debt
Securities of each series affected by such supplemental Indenture (including consents obtained in
connection with a tender offer or exchange offer for any such series of Debt Securities), the
Partnership and the Subsidiary Guarantors, when authorized by resolutions of the Board of
Directors, and the Trustee may from time to time and at any time enter into an Indenture or
Indentures supplemental hereto (which shall conform to the provisions of the TIA as in force at the
date of execution thereof) for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental Indenture or of
modifying in any manner the rights of the Holders of the Debt Securities of such series;
46
provided, that no such supplemental Indenture, without the consent of the Holders of each Debt
Security so affected, shall:
(a) reduce the percentage in principal amount of Debt Securities of any series whose Holders
must consent to an amendment;
(b) reduce the rate of or extend the time for payment of interest on any Debt Security;
(c) reduce the principal of or extend the Stated Maturity of any Debt Security;
(d) reduce the premium payable upon the redemption of any Debt Security or change the time at
which any Debt Security may or shall be redeemed in accordance with Article III;
(e) make any Debt Security payable in currency other than the Dollar;
(f) impair the right of any Holder to receive payment of premium, if any, principal of and
interest on such Holders Debt Securities on or after the due dates therefor or to institute suit
for the enforcement of any payment on or with respect to such Holders Debt Securities;
(g) in the case of any Debt Security subordinated pursuant to Article XII, make any change in
Article XII that adversely affects the rights of any Holder under Article XII;
(h) release any security that may have been granted in respect of the Debt Securities or a
Guarantee;
(i) make any change in Section 6.06 or this Section 9.02; or
(j) except as provided in Section 11.02(b) or 14.04, release any of the Subsidiary Guarantors
or modify a Guarantee in any manner adverse to the Holders.
A supplemental Indenture which changes or eliminates any covenant or other provision of this
Indenture which has been expressly included solely for the benefit of one or more particular series
of Debt Securities or which modifies the rights of the Holders of Debt Securities of such series
with respect to such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Debt Securities of any other series.
Upon the request of the Partnership, accompanied by a copy of resolutions of the Board of
Directors authorizing the execution of any such supplemental Indenture, and upon the filing with
the Trustee of evidence of the consent of Holders as aforesaid, the Trustee shall join with the
Partnership and the Subsidiary Guarantors in the execution of such supplemental Indenture unless
such supplemental Indenture affects the Trustees own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated
to enter into such supplemental Indenture.
It shall not be necessary for the consent of the Holders under this Section 9.02 to approve
the particular form of any proposed supplemental Indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
47
In the case of any Debt Securities subordinated pursuant to Article XII, an amendment under
this Section 9.02 may not make any change that adversely affects the rights under Article XII of
any holder of Senior Indebtedness then outstanding unless the holders of such Senior Indebtedness
(or any group or Representative thereof authorized to give a consent) consents to such change.
After an amendment under this Section 9.02 becomes effective, the Partnership shall mail to
Holders of Debt Securities of each series affected thereby a notice briefly describing such
amendment. The failure to give such notice to all such Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.02.
Section 9.03.
Effect of Supplemental Indentures
. Upon the execution of any supplemental
Indenture pursuant to the provisions of this Article IX, this Indenture shall be and be deemed to
be modified and amended in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Partnership, the
Subsidiary Guarantors and the Holders shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all the terms and
conditions of any such supplemental Indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may receive an Officers
Certificate and an Opinion of Counsel as conclusive evidence that any such supplemental Indenture
complies with the provisions of this Article IX.
Section 9.04.
Debt Securities May Bear Notation of Changes by Supplemental Indentures
.
Debt Securities of any series authenticated and delivered after the execution of any supplemental
Indenture pursuant to the provisions of this Article IX may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in such supplemental
Indenture. New Debt Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture contained in any such
supplemental Indenture may be prepared and executed by the Partnership, authenticated by the
Trustee and delivered in exchange for the Debt Securities of such series then Outstanding. Failure
to make the appropriate notation or to issue a new Debt Security of such series shall not affect
the validity of such amendment.
ARTICLE X
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 10.01.
Consolidations and Mergers of the Partnership
. The Partnership shall not
consolidate or amalgamate with or merge with or into any Person, or sell, convey, transfer, lease
or otherwise dispose of all or substantially all its assets to any Person, whether in a single
transaction or a series of related transactions, except (1) in accordance with the provisions of
its partnership agreement, and (2) unless: (a) either (i) the Partnership shall be
the surviving Person in the case of a merger or (ii) the resulting, surviving or transferee Person
if other than the Partnership (the Successor Partnership), shall be a partnership, limited
liability company or corporation organized and existing under the laws of the United States, any
State thereof or the District of Columbia and the Successor Partnership shall expressly assume, by
an Indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to
the Trustee,
48
all the obligations of the Partnership under this Indenture and the Debt Securities
according to their tenor; (b) immediately after giving effect to such transaction or series of
transactions (and treating any Debt which becomes an obligation of the Successor Partnership or any
Subsidiary of the Successor Partnership as a result of such transaction or series of transactions
as having been incurred by the Successor Partnership or such Subsidiary at the time of such
transaction), no Default or Event of Default would occur or be continuing; (c) if the Partnership
is not the continuing Person, then each Subsidiary Guarantor, unless it has become the Successor
Partnership, shall confirm that its Guarantee shall continue to apply to the obligations under the
Debt Securities and this Indenture; and (d) the Partnership shall have delivered to the Trustee an
Officers Certificate and an Opinion of Counsel, each stating that such consolidation,
amalgamation, merger or disposition and such supplemental Indenture (if any) comply with this
Indenture.
Section 10.02.
Rights and Duties of Successor Partnership
. In case of any consolidation,
amalgamation or merger where the Partnership is not the continuing Person, or disposition of all or
substantially all of the assets of the Partnership in accordance with Section 10.01, the Successor
Partnership shall succeed to and be substituted for the Partnership with the same effect as if it
had been named herein as the respective party to this Indenture, and the predecessor entity shall
be released from all liabilities and obligations under this Indenture and the Debt Securities,
except that no such release will occur in the case of a lease of all or substantially all of the
assets of the Partnership. The Successor Partnership thereupon may cause to be signed, and may
issue either in its own name or in the name of the Partnership, any or all the Debt Securities
issuable hereunder which theretofore shall not have been signed by the Partnership and delivered to
the Trustee; and, upon the order of the Successor Partnership, instead of the Partnership, and
subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Debt Securities which previously shall have been signed
and delivered by the officers of the General Partner on behalf of the Partnership to the Trustee
for authentication, and any Debt Securities which the Successor Partnership thereafter shall cause
to be signed and delivered to the Trustee for that purpose. All the Debt Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture as the Debt
Securities theretofore or thereafter issued in accordance with the terms of this Indenture as
though all such Debt Securities had been issued at the date of the execution hereof.
In case of any such consolidation, amalgamation, merger, sale or other disposition such
changes in phraseology and form (but not in substance) may be made in the Debt Securities
thereafter to be issued as may be appropriate.
ARTICLE XI
SATISFACTION AND DISCHARGE OF
INDENTURE; DEFEASANCE; UNCLAIMED MONEY
Section 11.01.
Applicability of Article
. The provisions of this Article XI relating to
either the satisfaction and discharge or the defeasance of Debt Securities shall be applicable to
each series of Debt Securities except as otherwise specified pursuant to Section 2.03 for Debt
Securities of such series.
49
Section 11.02.
Satisfaction and Discharge of Indenture; Defeasance.
(a) (i) If at any time the Partnership shall have delivered to the Trustee for cancellation
all Debt Securities of any series theretofore authenticated and delivered (other than any Debt
Securities of such series which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.09 and Debt Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Partnership as provided in
Section 11.05) or (ii) all Debt Securities of such series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and (1) the Partnership shall irrevocably
deposit with the Trustee as trust funds money, U.S. Government Obligations on a combination thereof
sufficient to pay at Stated Maturity or upon redemption all Debt Securities of such series not
theretofore delivered to the Trustee for cancellation, including principal and premium, if any, and
interest due or to become due on such date of Stated Maturity or Redemption Date, as the case may
be, and (2) the Partnership shall deliver to the Trustee a certificate to the effect described in
Section 11.03(b) hereof, and if in the case described in either of the preceding clauses (i) and
(ii) the Partnership shall also pay or cause to be paid all other sums then due and payable
hereunder by the Partnership with respect to the Debt Securities of such series, then this
Indenture shall cease to be of further effect with respect to the Debt Securities of such series,
and the Trustee, on demand of the Partnership accompanied by an Officers Certificate and an
Opinion of Counsel and at the cost and expense of the Partnership, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to the Debt Securities of
such series.
(b) Subject to Sections 11.02(c), 11.03 and 11.07, the Partnership at any time may terminate,
with respect to Debt Securities of a particular series, all its obligations under the Debt
Securities of such series and this Indenture with respect to the Debt Securities of such series
(legal defeasance option) or the operation of (x) any covenant made applicable to such Debt
Securities pursuant to Section 2.03, (y) Sections 6.01(d), (g) and (h) (except to the extent
covenants or agreements referenced in Section 6.01(d) remain applicable) and (z), as they relate to
the Subsidiary Guarantors only, Sections 6.01(e) and (f) (covenant defeasance option). If the
Partnership exercises either its legal defeasance option or its covenant defeasance option with
respect to Debt Securities of a particular series that are entitled to the benefit of a Guarantee,
the Guarantee will terminate with respect to that series of Debt Securities and be automatically
released and discharged and any security that may have been granted in respect of such series
shall be automatically released. The Partnership may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option.
If the Partnership exercises its legal defeasance option, payment of the Debt Securities of
the defeased series may not be accelerated because of an Event of Default. If the Partnership
exercises its covenant defeasance option, payment of the Debt Securities of the defeased series may
not be accelerated because of an Event of Default specified in Sections 6.01(d), (g) and (h) and,
with respect to the Subsidiary Guarantors only, Sections 6.01(e) and (f) (except to the extent
covenants or agreements referenced in Section 6.01(d) remain applicable).
50
Upon satisfaction of the conditions set forth herein and upon request of the Partnership, the
Trustee shall acknowledge in writing the discharge of those obligations that the Partnership
terminates.
(c) Notwithstanding clauses (a) and (b) above, the Partnerships obligations in Sections 2.07,
2.09, 4.02, 4.04, 4.05(a), 4.06(a), 5.01, 7.06, 11.05, 11.06 and 11.07 shall survive until the Debt
Securities of the defeased series have been paid in full. Thereafter, the Partnerships
obligations in Sections 7.06, 11.05 and 11.06 shall survive.
Section 11.03.
Conditions of Defeasance
. The Partnership may exercise its legal defeasance
option or its covenant defeasance option with respect to Debt Securities of a particular series
only if:
(a) the Partnership irrevocably deposits in trust with the Trustee money, U.S. Government
Obligations or a combination thereof for the payment of principal of, and premium, if any, and
interest on, the Debt Securities of such series to Stated Maturity or redemption, as the case may
be;
(b) the Partnership delivers to the Trustee a certificate from a nationally recognized firm of
independent accountants expressing their opinion that the payments of principal and interest when
due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money
without investment will provide cash at such times and in such amounts as will be sufficient to pay
the principal, premium, if any, and interest when due on all the Debt Securities of such series to
Stated Maturity or redemption, as the case may be;
(c) 91 days pass after the deposit is made and during the 91-day period no Default specified
in Section 6.01(e) or (f) with respect to the Partnership occurs which is continuing at the end of
the period;
(d) no Default has occurred and is continuing on the date of such deposit and after giving
effect thereto;
(e) the deposit does not constitute a default under any other agreement binding on the
Partnership and, if the Debt Securities of such series are subordinated pursuant to Article XII, is
not prohibited by Article XII;
(f) the Partnership delivers to the Trustee an Opinion of Counsel to the effect that the trust
resulting from the deposit does not constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940;
(g) in the event of the legal defeasance option, the Partnership shall have delivered to the
Trustee an Opinion of Counsel stating that the Partnership has received from the Internal Revenue
Service a ruling, or since the date of this Indenture there has been a change in the applicable
federal income tax law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of Debt Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred;
51
(h) in the event of the covenant defeasance option, the Partnership shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Holders of Debt Securities of such series
will not recognize income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such covenant defeasance had not
occurred; and
(i) the Partnership delivers to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent to the defeasance and discharge of the Debt
Securities of such series as contemplated by this Article XI have been complied with.
Before or after a deposit, the Partnership may make arrangements satisfactory to the Trustee
for the redemption of Debt Securities of such series at a future date in accordance with Article
III.
Section 11.04.
Application of Trust Money
. The Trustee shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to this Article XI. It shall apply the deposited
money and the money from U.S. Government Obligations through any paying agent and in accordance
with this Indenture to the payment of principal of, and premium, if any, and interest on, the Debt
Securities of the defeased series. In the event the Debt Securities of the defeased series are
subordinated pursuant to Article XII, money and securities so held in trust are not subject to
Article XII.
Section 11.05.
Repayment to Partnership
. The Trustee and any paying agent shall promptly
turn over to the Partnership upon request any excess money or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and any paying agent shall pay
to the Partnership upon request any money held by them for the payment of principal, premium or
interest that remains unclaimed for two years, and, thereafter, Holders entitled to such money must
look to the Partnership for payment as general creditors.
Section 11.06.
Indemnity for U.S. Government Obligations
. The Partnership shall pay and shall indemnify the Trustee and the Holders against any tax, fee
or other charge imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.
Section 11.07.
Reinstatement
. If the Trustee or any paying agent is unable to apply any
money or U.S. Government Obligations in accordance with this Article XI by reason of any legal
proceeding or by reason of any order or judgment of any court or government authority enjoining,
restraining or otherwise prohibiting such application, the Partnerships obligations under this
Indenture and the Debt Securities of the defeased series shall be revived and reinstated as though
no deposit had occurred pursuant to this Article XI until such time as the Trustee or any paying
agent is permitted to apply all such money or U.S. Government Obligations in accordance with this
Article XI.
52
ARTICLE XII
SUBORDINATION OF DEBT SECURITIES AND GUARANTEE
Section 12.01.
Applicability of Article; Agreement to Subordinate
. The provisions of
this Article XII shall only be applicable to the Debt Securities of any series (Debt Securities of
such series referred to in this Article XII as Subordinated Debt Securities) designated, pursuant
to Section 2.03, as subordinated to Senior Indebtedness and any related Guarantee of such
Subordinated Debt Securities. Each Holder by accepting a Subordinated Debt Security agrees that
the Debt evidenced by such Subordinated Debt Security and any related Guarantee of such
Subordinated Debt Security is subordinated in right of payment, to the extent and in the manner
provided in this Article XII, to the prior payment of all Senior Indebtedness and that the
subordination is for the benefit of and enforceable by the holders of Senior Indebtedness. All
provisions of this Article XII shall be subject to Section 12.12.
Section 12.02.
Liquidation, Dissolution, Bankruptcy
. Upon any payment or distribution
of the assets of any of the Partnerhsip or the Subsidiary Guarantors to creditors (i) upon a
liquidation or a dissolution of any of the Partnership or the Subsidiary Guarantors or (ii) in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to any of the
Partnership or the Subsidiary Guarantors or its property:
(a) holders of Senior Indebtedness of the Partnership or any Subsidiary Guarantor, as the case
may be, shall be entitled to receive payment in full in cash of such Senior Indebtedness of such
Person (including interest (if any), accruing on or after the commencement of a proceeding in
bankruptcy, whether or not allowed as a claim against the Partnership or any of the Subsidiary
Guarantors, as the case may be, in such bankruptcy proceeding) before Holders of Subordinated Debt
Securities and any related Guarantee shall be entitled to receive any payment of principal of, or
premium, if any, or interest on, the Subordinated Debt Securities from the Partnership, or any
payment in respect of the Guarantee from the Subsidiary Guarantors; and
(b) until the Senior Indebtedness of the Partnership or any Subsidiary Guarantor, as the case
may be, is paid in full, any distribution to which Holders of Subordinated Debt Securities and any
related Guarantee would be entitled but for this Article XII shall be made to
holders of Senior Indebtedness of the Partnership or the Subsidiary Guarantors, as the case
may be, as their interests may appear, except that such Holders may receive capital stock and any
debt securities that are subordinated to Senior Indebtedness of any of the Partnership or the
Subsidiary Guarantors, as the case may be, to at least the same extent as the Subordinated Debt
Securities of the Partnership or the related Guarantee of any Subsidiary Guarantor, respectively.
Section 12.03.
Default on Senior Indebtedness
. The Partnership and the Subsidiary
Guarantors may not pay the principal of, or premium, if any, or interest on, the Subordinated Debt
Securities or any related Guarantee or make any deposit pursuant to Article XI and may not
repurchase, redeem or otherwise retire (except, in the case of Subordinated Debt Securities that
provide for a mandatory sinking fund pursuant to Section 3.05, by the delivery of Subordinated Debt
Securities by the Partnership to the Trustee pursuant to the first paragraph of Section 3.05) any
Subordinated Debt Securities (collectively, pay the Subordinated Debt Securities) if any
principal, premium or interest in respect of Senior Indebtedness of such Person is not paid within
any applicable grace period (including at maturity) or any other default on Senior Indebtedness
53
of
such Person occurs and the maturity of such Senior Indebtedness is accelerated in accordance with
its terms unless and until the default has been cured or waived and any such acceleration has been
rescinded or such Senior Indebtedness has been paid in full in cash; provided, however, that the
Partnership and the Subsidiary Guarantors may make payments on the Subordinated Debt Securities or
any related Guarantee without regard to the foregoing if the Partnership and the Trustee receive
written notice approving such payment from the Representative of each issue of Designated Senior
Indebtedness. During the continuance of any other default with respect to any Designated Senior
Indebtedness pursuant to which the maturity thereof may be accelerated immediately without further
notice (except such notice as may be required to effect such acceleration) or the expiration of any
applicable grace periods, the Partnership and the Subsidiary Guarantors may not make payments on
the Subordinated Debt Securities or any related Guarantee for a period (a Payment Blockage
Period) commencing upon the receipt by the Partnership and the Trustee (and if such Designated
Senior Indebtedness is Debt of a Subsidiary Guarantor, the Subsidiary Guarantor) of written notice
of such default from the Representative of any Designated Senior Indebtedness specifying an
election to effect a Payment Blockage Period (a Blockage Notice) and ending 179 days thereafter
(or earlier if such Payment Blockage Period is terminated by written notice to the Trustee and the
Partnership (and if such Designated Senior Indebtedness is Debt of a Subsidiary Guarantor, the
Subsidiary Guarantor) from the Person or Persons who gave such Blockage Notice, by repayment in
full in cash of such Designated Senior Indebtedness or because the default giving rise to such
Blockage Notice is no longer continuing). Notwithstanding the provisions described in the
immediately preceding sentence (but subject to the provisions contained in Section 12.02 and the
first sentence of this Section 12.03), unless the holders of such Designated Senior Indebtedness or
the Representative of such holders shall have accelerated the maturity of such Designated Senior
Indebtedness, the Partnership and the Subsidiary Guarantors may resume payments on the Subordinated
Debt Securities and related Guarantees after such Payment Blockage Period. Not more than one
Blockage Notice may be given in any consecutive 360-day period, irrespective of the number of
defaults with respect to any number of issues of Designated Senior Indebtedness during such period,
unless otherwise specified pursuant to Section 2.03 for the Subordinated Debt Securities of a
series; provided, however, that in no event may the total number of days during which any Payment
Blockage Period or Periods is in effect exceed 179 days in the aggregate during any 360 consecutive
day period. For purposes of this Section 12.03, no default or event of default which
existed or was continuing on the date of the commencement of any Payment Blockage Period with
respect to the Designated Senior Indebtedness initiating such Payment Blockage Period shall be, or
be made, the basis of the commencement of a subsequent Payment Blockage Period by the
Representative of such Designated Senior Indebtedness, whether or not within a period of 360
consecutive days, unless such default or event of default shall have been cured or waived for a
period of not less than 90 consecutive days.
Section 12.04.
Acceleration of Payment of Debt Securities
. If payment of the
Subordinated Debt Securities is accelerated because of an Event of Default, the Partnership shall
promptly notify the holders of the Designated Senior Indebtedness (or their Representatives) of the
acceleration.
Section 12.05.
When Distribution Must Be Paid Over
. If a distribution is made to
Holders of Subordinated Debt Securities or a related Guarantee that because of this Article XII
54
should not have been made to them, the Holders who receive such distribution shall hold it in trust
for holders of Senior Indebtedness and pay it over to them as their interests may appear.
Section 12.06.
Subrogation
. After all Senior Indebtedness is paid in full and until
the Subordinated Debt Securities are paid in full, Holders thereof shall be subrogated to the
rights of holders of Senior Indebtedness to receive distributions applicable to Senior
Indebtedness. A distribution made under this Article XII to holders of Senior Indebtedness which
otherwise would have been made to Holders of Subordinated Debt Securities is not, as between the
Partnership or the Subsidiary Guarantors, as the case may be, and such Holders, a payment by the
Partnership or the Subsidiary Guarantors, as the case may be, on Senior Indebtedness.
Section 12.07.
Relative Rights
. This Article XII defines the relative rights of
Holders of Subordinated Debt Securities and holders of Senior Indebtedness. Nothing in this
Indenture shall:
(a) impair, as between the Partnership or the Subsidiary Guarantors, as the case may be, and
Holders of Subordinated Debt Securities, the obligation of the Partnership or the Subsidiary
Guarantors, as the case may be, which is absolute and unconditional, to pay principal of, and
premium, if any, and interest on, the Subordinated Debt Securities in accordance with their terms;
or
(b) prevent the Trustee or any Holder of Subordinated Debt Securities from exercising its
available remedies upon an Event of Default, subject to the rights of holders of Senior
Indebtedness to receive distributions otherwise payable to Holders of Subordinated Debt Securities.
Section 12.08.
Subordination May Not Be Impaired by Partnership
. No right of any
holder of Senior Indebtedness to enforce the subordination of the Debt evidenced by the
Subordinated Debt Securities and the Guarantee in respect thereof shall be impaired by any act or
failure to act by the Partnership or any of the Subsidiary Guarantors or by its failure to comply
with this Indenture.
Section 12.09.
Rights of Trustee and Paying Agent
. Notwithstanding Sections 12.02 and
12.03, the Trustee or any paying agent may continue to make payments on Subordinated Debt
Securities and shall not be charged with knowledge of the existence of facts that would
prohibit the making of any such payments unless, not less than two Business Days prior to the date
of such payment, a responsible officer of the Trustee receives notice satisfactory to it that
payments may not be made under this Article XII. The Partnership, the Registrar, any paying agent,
a Representative or a holder of Senior Indebtedness may give the notice; provided, however, that,
if an issue of Senior Indebtedness has a Representative, only the Representative may give the
notice on behalf of the Holders of the Senior Indebtedness of that issue.
The Trustee in its individual or any other capacity may hold Senior Indebtedness with the same
rights it would have if it were not Trustee. The Registrar and any paying agent may do the same
with like rights. The Trustee shall be entitled to all the rights set forth in this Article XII
with respect to any Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness; and nothing in Article VII shall deprive the Trustee
55
of
any of its rights as such holder. Nothing in this Article XII shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.06.
Section 12.10.
Distribution or Notice to Representative
. Whenever a distribution is
to be made or a notice given to holders of Senior Indebtedness, the distribution may be made and
the notice given to their Representative (if any).
Section 12.11.
Article XII Not to Prevent Defaults or Limit Right to Accelerate
. The
failure to make a payment pursuant to the Subordinated Debt Securities, whether directly or
pursuant to the Guarantee, by reason of any provision in this Article XII shall not be construed as
preventing the occurrence of a Default. Nothing in this Article XII shall have any effect on the
right of the Holders or the Trustee to accelerate the maturity of either the Subordinated Debt
Securities or the Debt Securities, as the case may be.
Section 12.12.
Trust Moneys Not Subordinated
. Notwithstanding anything contained
herein to the contrary, payments from money or the proceeds of U.S. Government Obligations held in
trust under Article XI by the Trustee for the payment of principal of, and premium, if any, and
interest on, the Subordinated Debt Securities or the Debt Securities shall not be subordinated to
the prior payment of any Senior Indebtedness or subject to the restrictions set forth in this
Article XII, and none of the Holders thereof shall be obligated to pay over any such amount to the
Partnership, the Subsidiary Guarantors or any holder of Senior Indebtedness of the Partnership or
the Subsidiary Guarantors or any other creditor of the Partnership or the Guarantor.
Section 12.13.
Trustee Entitled to Rely
. Upon any payment or distribution pursuant to
this Article XII, the Trustee and the Holders shall be entitled to rely upon any order or decree
of a court of competent jurisdiction in which any proceedings of the nature referred to in Section
12.02 are pending, upon a certificate of the liquidating trustee or agent or other Person making
such payment or distribution to the Trustee or to such Holders or upon the Representatives for the
holders of Senior Indebtedness for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and other Debt of the
Partnership or any of the Subsidiary Guarantors, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article
XII. In the event that the Trustee determines, in good faith, that evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article XII, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled to participate in
such payment or distribution and other facts pertinent to the rights of such Person under this
Article XII, and, if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive such payment. The
provisions of Sections 7.01 and 7.02 shall be applicable to all actions or omissions of actions by
the Trustee pursuant to this Article XII.
Section 12.14.
Trustee to Effectuate Subordination
. Each Holder by accepting a
Subordinated Debt Security authorizes and directs the Trustee on his behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination between the
56
Holders
of Subordinated Debt Securities and the holders of Senior Indebtedness as provided in this Article
XII and appoints the Trustee as attorney-in-fact for any and all such purposes.
Section 12.15.
Trustee Not Fiduciary for Holders of Senior Indebtedness
. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not
be liable to any such holders if it shall mistakenly pay over or distribute to Holders of
Subordinated Debt Securities the Partnership or any of the Subsidiary Guarantors or any other
Person, money or assets to which any holders of Senior Indebtedness shall be entitled by virtue of
this Article XII or otherwise.
Section 12.16.
Reliance by Holders of Senior Indebtedness on Subordination Provisions
.
Each Holder by accepting a Subordinated Debt Security acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an inducement and a consideration to each
holder of any Senior Indebtedness, whether such Senior Indebtedness was created or acquired before
or after the issuance of the Subordinated Debt Securities, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and continuing to hold,
or in continuing to hold, such Senior Indebtedness.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01.
Successors and Assigns of Partnership Bound by Indenture
. All the
covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the
Partnership, the Subsidiary Guarantors or the Trustee shall bind their respective successors and
assigns, whether so expressed or not.
Section 13.02.
Acts of Board, Committee or Officer of Successor Partnership Valid
. Any act
or proceeding authorized or required by any provision of this Indenture to be done or performed by
any board, committee or officer of the General Partner on behalf of the Partnership shall and may
be done and performed with like force and effect by the like board, committee or officer of any
Successor Partnership.
Section 13.03.
Required Notices or Demands
. Any notice or communication by the
Partnership, the Subsidiary Guarantors or the Trustee to the others is duly given if in writing (in
the English language) and delivered in Person or mailed by registered or certified mail (return
receipt requested), telecopier or overnight air courier guaranteeing next day delivery, to the
others address:
If to the Partnership or any of the Subsidiary Guarantors:
Spectra Energy Partners, LP
5400 Westheimer Court
Houston, Texas 77056
57
Attention: [
]
Telecopy No. [
]
If to the Trustee:
Wells Fargo Bank, N.A.
1445 Ross Avenue, 2
nd
Floor
Dallas, Texas 75202-2812
Attention: Corporate Trust Services
Telecopy No.: (214) 777-4086
The Partnership, the Subsidiary Guarantors or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or communications.
All notices and communications shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; on the first Business Day on or after being sent, if telecopied and the sender
receives confirmation of successful transmission; and the next Business Day after timely delivery
to the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice required or permitted to a Holder by the Partnership, the Subsidiary Guarantors or
the Trustee pursuant to the provisions of this Indenture shall be deemed to be properly mailed by
being deposited postage prepaid in a post office letter box in the United States addressed to such
Holder at the address of such Holder as shown on the Debt Security Register. Any report pursuant
to Section 313 of the TIA shall be transmitted in compliance with subsection (c) therein.
Notwithstanding the foregoing, any notice to Holders of Floating Rate Debt Securities
regarding the determination of a periodic rate of interest, if such notice is required pursuant to
Section 2.03, shall be sufficiently given if given in the manner specified pursuant to
Section 2.03.
In the event of suspension of regular mail service or by reason of any other cause it shall be
impracticable to give notice by mail, then such notification as shall be given with the approval of
the Trustee shall constitute sufficient notice for every purpose hereunder.
In the event it shall be impracticable to give notice by publication, then such notification
as shall be given with the approval of the Trustee shall constitute sufficient notice for every
purpose hereunder.
Failure to mail a notice or communication to a Holder or any defect in it or any defect in any
notice by publication as to a Holder shall not affect the sufficiency of such notice with respect
to other Holders. If a notice or communication is mailed or published in the manner provided
above, it is conclusively presumed duly given.
Section 13.04.
Indenture and Debt Securities to Be Construed in Accordance with the Laws of the
State of New York
. THIS INDENTURE, EACH DEBT SECURITY AND EACH GUARANTEE SHALL BE DEEMED TO BE
NEW YORK CONTRACTS, AND FOR ALL
58
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF SAID STATE.
Section 13.05.
Officers Certificate and Opinion of Counsel to Be Furnished upon Application or
Demand by the Partnership
. Upon any application or demand by the Partnership to the Trustee to
take any action under any of the provisions of this Indenture, the Partnership shall furnish to the
Trustee an Officers Certificate stating that all covenants and conditions precedent provided for
in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel
stating that, in the opinion of such counsel, all such covenants and conditions precedent have been
complied with, except that in the case of any such application or demand as to which the furnishing
of such document is specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture shall include
(a) a statement that the Person making such certificate or opinion has read such covenant or
condition, (b) 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, (c) 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 (d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 13.06.
Payments Due on Legal Holidays
. In any case where the date of maturity of
interest on or principal of and premium, if any, on the Debt Securities of a series shall not be a
Business Day at any Place of Payment for the Debt Securities of such series, then payment of
interest or principal and premium, if any, need not be made on such date at such Place of Payment,
but may be made on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the date of maturity, and no interest shall accrue for the period after
such date. If a record date is not a Business Day, the record date shall not be affected.
Section 13.07.
Provisions Required by TIA to Control
. If and to the extent that 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 to 318,
inclusive, of the TIA, such required provision shall control.
Section 13.08.
Computation of Interest on Debt Securities
. Interest, if any, on the Debt
Securities shall be computed on the basis of a 360-day year of twelve 30-day months, except as may
otherwise be provided pursuant to Section 2.03.
Section 13.09.
Rules by Trustee, Paying Agent and Registrar
. The Trustee may make
reasonable rules for action by or a meeting of Holders. The Registrar and any paying agent may
make reasonable rules for their functions.
59
Section 13.10.
No Recourse Against Others
. The partners, directors, officers, employees,
incorporators and members of each of the Partnership and the Subsidiary Guarantors, as such, shall
have no liability for any obligations of the Subsidiary Guarantors or the Partnership under the
Debt Securities, this Indenture or any Guarantee or for any claim based on, in respect of, or by
reason of, such obligations or their creation. By accepting a Debt Security, each Holder shall
waive and release all such liability. The waiver and release shall be part of the consideration
for the issue of the Debt Securities.
Section 13.11.
Severability
. In case any provision in this Indenture or the Debt
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 13.12.
Effect of Headings
. The article and section headings herein and in the
Table of Contents are for convenience only and shall not affect the construction hereof.
Section 13.13.
Indenture May Be Executed in Counterparts
. This Indenture may be executed
in any number of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
ARTICLE XIV
GUARANTEE
Section 14.01.
Unconditional Guarantee
.
(a) Notwithstanding any provision of this Article XIV to the contrary, the provisions of this
Article XIV shall be applicable only to, and inure solely to the benefit of, the Debt
Securities of any series designated, pursuant to Section 2.03, as entitled to the benefits of
the Guarantee of any of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and
absolutely guarantees (the Guarantee) to the Holders and to the Trustee the due and punctual
payment of the principal of, and premium, if any, and interest on the Debt Securities and all other
amounts due and payable under this Indenture and the Debt Securities by the Partnership, when and
as such principal, premium, if any, interest and other amounts shall become due and payable,
whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise,
according to the terms of the Debt Securities and this Indenture, subject to (i) the limitations
set forth in Section 14.03 and (ii) in the case of the Guarantee of the Subordinated Debt
Securities, to the subordination provisions contained in Article XII.
(c) Failing payment when due of any amount guaranteed pursuant to its Guarantee, for whatever
reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay the same
immediately, subject, in the case of the Guarantee of the Subordinated Debt Securities, to the
subordination provisions contained in Article XII. The Guarantee hereunder (other than the
Guarantee of Subordinated Debt Securities) is intended to be a general, unsecured, senior
obligation of each of the Subsidiary Guarantors and will rank
pari passu
in right of payment with
all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of
payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations
hereunder shall be full, unconditional and absolute, irrespective of the
60
validity, regularity or
enforceability of the Debt Securities, its Guarantee (including the Guarantee of any other
Subsidiary Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver
or consent by the Trustee or any Holder of the Debt Securities with respect to any provisions
hereof or thereof, the recovery of any judgment against the Partnership or any other Subsidiary
Guarantor, or any action to enforce the same or any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of any of the Subsidiary Guarantors. Each of
the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the principal
of, or premium, if any, or interest on the Debt Securities, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted
by the Trustee on behalf of the Holders or, subject to Section 6.04, by the Holders, on the terms
and conditions set forth in this Indenture, directly against such Subsidiary Guarantor to enforce
its Guarantee without first proceeding against the Partnership or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XIV shall be as
aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited
by any occurrence or condition whatsoever, including, without limitation, (A) any compromise,
settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in,
any of the obligations and liabilities of the Partnership or any of the Subsidiary Guarantors
contained in the Debt Securities or this Indenture, (B) any impairment, modification, release or
limitation of the liability of the Partnership, any of the Subsidiary Guarantors or any of their
estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of
any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or
from the decision of any court, (C) the assertion or exercise by the Partnership, any of the
Subsidiary Guarantors or the Trustee of any rights or remedies under the Debt
Securities or this Indenture or their delay in or failure to assert or exercise any such
rights or remedies, (D) the assignment or the purported assignment of any property as security for
the Debt Securities, including all or any part of the rights of the Partnership or any of the
Subsidiary Guarantors under this Indenture, (E) the extension of the time for payment by the
Partnership or any of the Subsidiary Guarantors of any payments or other sums or any part thereof
owing or payable under any of the terms and provisions of the Debt Securities or this Indenture or
of the time for performance by the Partnership or any of the Subsidiary Guarantors of any other
obligations under or arising out of any such terms and provisions or the extension or the renewal
of any thereof, (F) the modification or amendment (whether material or otherwise) of any duty,
agreement or obligation of the Partnership or any of the Subsidiary Guarantors set forth in this
Indenture, (G) the voluntary or involuntary liquidation, dissolution, sale or other disposition of
all or substantially all of the assets, marshaling of assets and liabilities, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of, or other similar proceeding affecting, the Partnership or any of
the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Debt
Securities, the Guarantee or this Indenture in any such proceeding, (H) the release or discharge of
the Partnership or any of the Subsidiary Guarantors from the performance or observance of any
agreement, covenant, term or condition contained in any of such instruments by operation of law,
(I) the unenforceability of the Debt Securities, any other Guarantee or this Indenture or (J) any
other circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to
the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or
guarantor.
61
(e) Each of the Subsidiary Guarantors hereby (A) waives diligence, presentment, demand of
payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the
Partnership or any of the other Subsidiary Guarantors, and all demands whatsoever, (B) acknowledges
that any agreement, instrument or document evidencing its Guarantee may be transferred and that the
benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or
document evidencing the Guarantee without notice to it and (C) covenants that its Guarantee will
not be discharged except by complete performance of the Guarantee. Each of the Subsidiary
Guarantors further agrees that if at any time all or any part of any payment theretofore applied by
any Person to its Guarantee is, or must be, rescinded or returned for any reason whatsoever,
including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or
any of the other Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or
must be rescinded or returned, be deemed to have continued in existence notwithstanding such
application, and the Guarantee shall continue to be effective or be reinstated, as the case may be,
as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the
Trustee against the Partnership in respect of any amounts paid by such Subsidiary Guarantor
pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor,
shall not be entitled to enforce or to receive any payments arising out of, or based upon, such
right of subrogation until all of the Debt Securities and each Guarantee shall have been paid in
full or discharged.
Section 14.02.
Execution and Delivery of Notation of Guarantee
. To further evidence its Guarantee set forth in Section 14.01, each of the Subsidiary Guarantors
hereby agrees that a notation relating to such Guarantee, substantially in the form attached hereto
as Annex A, shall be endorsed on each Debt Security entitled to the benefits of the Guarantee
authenticated and delivered by the Trustee and executed by either manual or facsimile signature of
an officer of such Subsidiary Guarantor, or in the case of a Subsidiary Guarantor that is a
limited partnership, an officer of the general partner of such Subsidiary Guarantor. Each of the
Subsidiary Guarantors hereby agrees that its Guarantee set forth in Section 14.01 shall remain in
full force and effect notwithstanding any failure to endorse on each Debt Security a notation
relating to the Guarantee. If any officer of any Subsidiary Guarantor, or in the case of a
Subsidiary Guarantor that is a limited partnership, any officer of the general partner of the
Subsidiary Guarantor, whose signature is on this Indenture or a Debt Security no longer holds that
office at the time the Trustee authenticates such Debt Security or at any time thereafter, the
Guarantee of such Debt Security shall be valid nevertheless. The delivery of any Debt Security by
the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the
Guarantee set forth in this Indenture on behalf of each of the Subsidiary Guarantors.
The Trustee hereby accepts the trusts in this Indenture upon the terms and conditions herein
set forth.
Section 14.03.
Limitation on Subsidiary Guarantors Liability
. Each Subsidiary Guarantor
and by its acceptance hereof each Holder of a Debt Security entitled to the benefits of a Guarantee
hereby confirm that it is the intention of all such parties that the guarantee by such Subsidiary
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or conveyance for purposes
of any federal or state law. To effectuate the foregoing intention, the Holders of a
62
Debt Security
entitled to the benefits of a Guarantee and the Subsidiary Guarantors hereby irrevocably agree that
the obligations of each Subsidiary Guarantor under its Guarantee shall be limited to the maximum
amount as will, after giving effect to all other contingent and fixed liabilities of such
Subsidiary Guarantor and to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its
Guarantee, result in the obligations of such Subsidiary Guarantor under its Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under federal or state law.
Section 14.04.
Release of Subsidiary Guarantors from Guarantee
.
(a) Notwithstanding any other provisions of this Indenture, the Guarantee of any Subsidiary
Guarantor may be released upon the terms and subject to the conditions set forth in
Section 11.02(b) and in this Section 14.04. Provided that no Default shall have occurred and shall
be continuing under this Indenture, any Guarantee incurred by a Subsidiary Guarantor pursuant to
this Article XIV shall be unconditionally released and discharged (i) automatically upon (A) any
sale, exchange or transfer, whether by way of merger or otherwise, to any Person that is not an
Affiliate of the Partnership, of all of the Partnerships direct or indirect limited liability
company or other equity interests in such Subsidiary Guarantor (provided such sale, exchange or
transfer is not prohibited by this Indenture) or (B) the merger of such Subsidiary Guarantor into
the Partnership or any other Subsidiary Guarantor or the liquidation and dissolution of such
Subsidiary Guarantor (in each case to the extent not prohibited by this
Indenture) or (ii) following delivery of a written notice of such release or discharge by the
Partnership to the Trustee, upon the release or discharge of all guarantees by such Subsidiary
Guarantor of any Debt of the Partnership other than obligations arising under this Indenture and
any Debt Securities issued hereunder, except a discharge or release by or as a result of payment
under such guarantees.
(b) The Trustee shall deliver an appropriate instrument evidencing any release of a Subsidiary
Guarantor from its Guarantee upon receipt of a Partnership Request accompanied by an Officers
Certificate and an Opinion of Counsel to the effect that the Subsidiary Guarantor is entitled to
such release in accordance with the provisions of this Indenture. Any Subsidiary Guarantor not so
released shall remain liable for the full amount of principal of and premium, if any, and interest
on the Debt Securities entitled to the benefits of such Guarantee as provided in this Indenture,
subject to the limitations of Section 14.03.
(c) If at any time following any release and discharge of the Guarantee of a Subsidiary
Guarantor pursuant to the provisions of clause (ii) of Section 14.04(a) such Subsidiary Guarantor
shall again guarantee any Debt of the Partnership other than obligations arising under this
Indenture and any Debt Securities issued hereunder, thereupon the Partnership shall cause such
Subsidiary Guarantor to execute and deliver to the Trustee an Indenture supplemental hereto, in
form satisfactory to the Trustee, in order to effect its Guarantee once again.
Section 14.05.
Subsidiary Guarantor Contribution
. In order to provide for just and
equitable contribution among the Subsidiary Guarantors, the Subsidiary Guarantors hereby agree,
inter se
, that in the event any payment or distribution is made by any Subsidiary Guarantor
63
(a
Funding Guarantor) under its Guarantee, such Funding Guarantor shall be entitled to a
contribution from each other Subsidiary Guarantor (if any) in a
pro rata
amount based on the net
assets of each Subsidiary Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Partnerships obligations with
respect to the Debt Securities or any other Subsidiary Guarantors obligations with respect to its
Guarantee.
[Remainder of This Page Intentionally Left Blank.]
64
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as
of the day and year first above written.
|
|
|
|
|
|
|
|
|
SPECTRA ENERGY PARTNERS, LP
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
SPECTRA ENERGY PARTNERS (DE)
GP, LP
|
|
|
|
|
|
|
its General Partner
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
SPECTRA ENERGY PARTNERS GP, LLC
|
|
|
|
|
|
|
its General Partner
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Subsidiary Guarantors]
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
WELLS FARGO BANK, N.A.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
Title:
|
|
|
|
|
65
ANNEX A
NOTATION OF GUARANTEE
Each of the Subsidiary Guarantors (which term includes any successor Person under the
Indenture), has fully, unconditionally and absolutely guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture, the due and punctual payment of the
principal of, and premium, if any, and interest on the Debt Securities and all other amounts due
and payable under the Indenture and the Debt Securities by the Partnership.
The obligations of each of the Subsidiary Guarantors to the Holders of Debt Securities and to
the Trustee pursuant to its Guarantee and the Indenture are expressly set forth in Article XIV of
the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee.
|
|
|
|
|
|
|
|
|
[Subsidiary Guarantors]
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
Title:
|
|
|
|
|
A-1