Exhibit 1.1
Execution Copy
GULF SOUTH PIPELINE COMPANY, LP
$300,000,000
4.000% Senior Notes due 2022
Purchase Agreement
June 7, 2012
Barclays Capital Inc.
J.P. Morgan Securities
LLC
As Representatives of the Initial Purchasers
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
J.P. Morgan
Securities LLC
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:
Gulf South Pipeline Company, LP, a limited partnership organized under the laws of Delaware (the “Partnership”),
together with its general partner, GS Pipeline Company, LLC, a Delaware limited liability company (the “General Partner” and, together with the Partnership, the “Partnership Parties”), proposes to issue and sell to the several
parties named in Schedule I hereto (the “Initial Purchasers”), for whom you (the “Representatives”) are acting as representatives, $300,000,000 principal amount of the Partnership’s 4.000% Senior Notes due 2022 (the
“Securities”). The Securities are to be issued under an indenture, to be dated as of the Closing Date (the “Indenture”), between the Partnership and The Bank of New York Mellon Trust Company, N.A., as trustee (the
“Trustee”). To the extent there are no additional parties listed on Schedule I other than you, the term Representatives as used herein shall mean you as the Initial Purchasers, and the terms Representatives and Initial Purchasers
shall mean either the singular or plural as the context requires. The use of the neuter in this Agreement shall include the feminine and masculine wherever appropriate. Certain terms used herein are defined in Section 21 hereof.
The sale of the Securities to the Initial Purchasers will be made without registration of the Securities under the Act in reliance upon
exemptions from the registration requirements of the Act. Holders of the Securities will be entitled to the benefits of a registration rights agreement, to be dated as of the Closing Date (the “Registration Rights Agreement”), among the
Partnership Parties and the Initial Purchasers, pursuant to which the Partnership will be required to file with the Securities and Exchange Commission (the “Commission”), under the circumstances set forth therein, (i) a registration
statement under the Act relating to an exchange offer (the “Exchange
Offer”) pursuant to which the Partnership will offer to issue a new series of debt securities with terms substantially identical to the Securities (the “Exchange Securities”)
and/or (ii) a shelf registration statement pursuant to Rule 415 of the Act relating to the resale by certain holders of the Securities, and in each case, to use its reasonable best efforts to cause such registration statements to be declared
effective.
In connection with the sale of the Securities, the Partnership has prepared a preliminary offering memorandum,
dated June 7, 2012 (as amended or supplemented at the date thereof, including any and all exhibits thereto, the “Preliminary Memorandum”), and a final offering memorandum, dated June 7, 2012 (as amended or supplemented at the
Execution Time, including any and all exhibits thereto, the “Final Memorandum”). Each of the Preliminary Memorandum and the Final Memorandum sets forth certain information concerning the Partnership and the Securities. The Partnership
hereby confirms that it has authorized the use of the Disclosure Package, the Preliminary Memorandum and the Final Memorandum in connection with the offer and sale of the Securities by the Initial Purchasers.
1.
Representations and Warranties
. Each of the Partnership Parties, jointly and severally, represents and warrants to, and agrees
with, each Initial Purchaser as set forth below in this Section 1.
(a) The Preliminary Memorandum, at the
date thereof, did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. On the date
thereof and on the Closing Date, the Final Memorandum did not and will not (and any amendment or supplement thereto, at the date thereof and on the Closing Date, will not) contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
,
however
, that the Partnership Parties make no representation or warranty as to the
information contained in or omitted from the Preliminary Memorandum or the Final Memorandum in reliance upon and in conformity with information furnished in writing to the Partnership by or on behalf of the Initial Purchasers through the
Representatives specifically for inclusion therein, it being understood and agreed that the only such information furnished by or on behalf of any Initial Purchaser consists of the information described as such in Section 8(b) hereof.
(b) The Disclosure Package, as of the Execution Time, did not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the
Disclosure Package based upon and in conformity with information furnished in writing to the Partnership by or on behalf of the Initial Purchasers through the Representatives specifically for use therein, it being understood and agreed that the only
such information furnished by or on behalf of any Initial Purchaser consists of the information described as such in Section 8(b) hereof.
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(c) No order or decree preventing the use of the Preliminary Memorandum or
the Final Memorandum, nor any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act, has been issued, and no proceeding for that purpose has commenced or is pending or, to the
knowledge of the Partnership Parties, is contemplated.
(d) Except as contemplated by this Agreement, none of
the Partnership Parties, their Affiliates, or any person acting on their behalf has, directly or indirectly, made offers or sales of any Security, or solicited offers to buy, any Security under circumstances that would require the registration
of the Securities under the Act.
(e) None of the Partnership Parties, their Affiliates, or any person acting
on their behalf has: (i) engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Securities or (ii) engaged in any directed selling efforts
(within the meaning of Regulation S) with respect to the Securities; and each of the Partnership Parties, their Affiliates and the persons acting on their behalf has complied with the offering restrictions requirement of Regulation S.
(f) The Securities satisfy the eligibility requirements of Rule 144A(d)(3) under the Act.
(g) Assuming the completeness and accuracy of the representations and warranties of the Initial Purchasers and their
compliance with their agreements, in each case contained in Section 4 hereof, no registration under the Act of the Securities is required for the offer and sale of the Securities to or by the Initial Purchasers in the manner contemplated
herein, in the Disclosure Package and the Final Memorandum.
(h) The Partnership Parties have not paid or
agreed to pay to any person any compensation for soliciting another to purchase any securities of the Partnership (except as contemplated in this Agreement).
(i) The Partnership has not offered, sold or issued any securities, or securities that are convertible into other securities, with terms that are substantially similar to the Securities during the
six-month period preceding the date of the Final Memorandum, including any sales pursuant to Section 4(2) under the Act, Regulation D or Regulation S. No Partnership Party, nor any Affiliate of any Partnership Party, has sold or issued any
securities that would be integrated with the offering of the Securities contemplated by this Agreement pursuant to the Act, the regulations promulgated thereunder or the interpretations thereof by the Commission.
(j) Each of the Preliminary Memorandum and the Final Memorandum, as of its date, and each amendment or supplement thereto,
as of its date, contained or contains the information specified in, and meets the requirements of, Rule 144A(d)(4) under the Act.
(k) The Partnership has been duly formed and is validly existing and in good standing as a limited partnership under the Delaware Revised Uniform Limited
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Partnership Act (the “Delaware LP Act”), has the full partnership power and authority necessary to own or hold its properties and assets and to conduct the businesses in which it is
engaged, and is duly registered or qualified to do business and in good standing as a foreign limited partnership in each jurisdiction listed opposite its name in Schedule II attached hereto, such jurisdictions being the only jurisdictions in which
its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so register or qualify could not reasonably be expected to have a material adverse effect on the condition (financial or
other), results of operations, securityholders’ equity, properties, business or prospects of the Partnership Parties, taken as a whole, whether or not arising in the ordinary course of business (a “Material Adverse Effect”).
(l) The General Partner has been duly formed and is validly existing and in good standing as a limited
liability company under the Delaware Limited Liability Company Act (the “Delaware LLC Act”), has the full limited liability company power and authority necessary to own or hold its properties and assets and to conduct the businesses in
which it is engaged, and is duly registered or qualified to do business and in good standing as a foreign limited liability company in each jurisdiction listed opposite its name in Schedule II attached hereto, such jurisdictions being the only
jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to so register or qualify could not reasonably be expected to have a Material Adverse Effect.
(m) Boardwalk Pipelines, LP, a Delaware limited partnership (the “Operating Partnership”) owns a 100% limited
liability company interest in the General Partner; such limited liability company interest has been duly and validly authorized and issued in accordance with the limited liability company agreement of the General Partner (as the same may be amended
and restated on or prior to the Closing Date, the “GP LLC Agreement”) and is fully paid (to the extent required under the GP LLC Agreement) and non-assessable (except as such non-assessability may be affected by Sections 18-607 and 18-804
of the Delaware LLC Act); and the Operating Partnership owns such limited liability company interest free and clear of all liens, encumbrances, security interests, equities, charges or claims (collectively, “Liens”).
(n) The General Partner is the sole general partner of the Partnership, with a 1.0% general partner interest in the
Partnership; such general partner interest has been duly and validly authorized and issued in accordance with the agreement of limited partnership of the Partnership (as the same may be amended and restated on or prior to the Closing Date, the
“Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all Liens. The Operating Partnership is the sole limited partner of the Partnership, with a 99.0% limited partner interest in the
Partnership; such limited partner interest has been duly and validly authorized and issued in accordance with the Partnership Agreement and is fully paid (to the extent required under the Partnership Agreement) and non-assessable (except as such
non-assessability may be affected by Sections 17-607 and 17-804 of the Delaware LP Act); and the Operating Partnership owns such limited partner interest free and clear of all Liens.
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(o) Other than the General Partner’s 1.0% general partner interest in
the Partnership, no Partnership Party owns, directly or indirectly, any equity or short- or long-term debt securities of any corporation, partnership, limited liability company, joint venture, association or other entity (other than intercompany
advances), and the Partnership has no subsidiaries.
(p) On the Closing Date, the Partnership will have the
requisite partnership power and authority to issue, sell and deliver the Securities, in accordance with and upon the terms and conditions set forth in this Agreement, the Indenture, the Partnership Agreement, the Preliminary Memorandum and the Final
Memorandum. On the Closing Date, all corporate, partnership or limited liability company action, as the case may be, required to be taken by the Partnership Parties or any of their Affiliates, members or partners for the authorization, issuance,
sale and delivery of the Securities, the execution and delivery by the Partnership Parties of this Agreement, the Indenture and the Securities and the consummation of the transactions contemplated by this Agreement, the Indenture and the Securities
shall have been validly taken.
(q) The Partnership Agreement has been duly authorized, executed and delivered
by the General Partner and the Operating Partnership, and is a valid and legally binding agreement of the General Partner and the Operating Partnership, enforceable against the General Partner and the Operating Partnership in accordance with its
terms; and the GP LLC Agreement has been duly authorized, executed and delivered by the Operating Partnership, and is a valid and legally binding agreement of the Operating Partnership, enforceable against the Operating Partnership in accordance
with its terms; except in each case as the enforcement thereof may be (i) limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors’ rights generally and (ii) subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(r) This Agreement has been duly and validly authorized, executed and delivered by each of the Partnership Parties.
(s) The Registration Rights Agreement has been duly and validly authorized by each of the Partnership Parties
and, when duly executed and delivered by the Partnership Parties and the Initial Purchasers, will constitute a valid and binding agreement of each of the Parties, enforceable against each of them in accordance with its terms, except as the
enforcement thereof may be (i) limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally
and (ii) subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(t) The Indenture has been duly authorized by the Partnership and, when duly executed and delivered by the Partnership and the Trustee, will constitute a valid and binding agreement of the Partnership,
enforceable against the Partnership in accordance with its terms, except as the enforcement thereof may be (i) limited by bankruptcy,
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insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and
(ii) subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). While the parties hereto acknowledge that the Indenture will not be qualified under the Trust Indenture Act on
the Closing Date, the Indenture will conform in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture that is qualified thereunder.
(u) The Securities have been duly authorized and, on the Closing Date, will have been duly executed by the Partnership
and, when authenticated, issued and delivered in the manner provided for in the Indenture and delivered against payment of the purchase price therefor as provided in this Agreement, will be duly and validly issued and will constitute valid and
binding obligations of the Partnership, enforceable against the Partnership in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and will be in the form contemplated by, and entitled to the benefits of, the Indenture.
(v) The Exchange Securities have been duly authorized and, when duly executed, authenticated, issued and delivered pursuant to the Exchange Offer in the manner provided for in the Indenture and the
Registration Rights Agreement, will be duly and validly issued and will constitute valid and binding obligations of the Partnership, enforceable against the Partnership in accordance with their terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), and will be in the form contemplated by, and entitled to the benefits of, the Indenture.
(w) The Indenture, the Registration Rights Agreement, the Securities and the Exchange Securities will conform, in all
material respects, to the respective statements relating thereto contained in the Preliminary Memorandum and the Final Memorandum.
(x) None of the offering, issuance or sale by the Partnership of the Securities or the application of the proceeds therefrom as described under the caption “Use of Proceeds” in each of the
Preliminary Memorandum and the Final Memorandum, the execution, delivery or performance of this Agreement, the Registration Rights Agreement, the Indenture, the Securities or the Exchange Securities by the Partnership Parties that are parties
thereto, or the consummation of the transactions contemplated by this Agreement, the Registration Rights Agreement or the Indenture (i) conflicts or will conflict with, or constitutes or will constitute a violation of the certificate or
agreement of limited partnership, certificate of formation, limited liability company agreement or other
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organizational documents of any Partnership Party or, to the knowledge of the Partnership Parties, any of their Affiliates, (ii) conflicts or will conflict with, or constitutes or will
constitute a breach or violation of or a default under (or an event that, with notice or lapse of time or both, would constitute such a breach or violation of or default under), any indenture, mortgage, deed of trust, guarantee, loan agreement,
lease or other agreement or instrument to which any of the Partnership Parties or, to the knowledge of the Partnership Parties, any of their Affiliates is a party, by which any of them is bound or to which any of their respective properties or
assets is subject, (iii) violates or will violate any statute, law, ordinance, regulation, order, judgment, decree or injunction of any court or governmental agency or body to which any of the Partnership Parties or, to the knowledge of the
Partnership Parties, any of their Affiliates or any of their respective properties or assets may be subject or (iv) will result in the creation or imposition of any Lien upon any property or assets of any Partnership Party or, to the knowledge
of the Partnership Parties, any of their Affiliates, which conflicts, breaches, violations, defaults or Liens, in the case of clauses (ii), (iii) or (iv), would, individually or in the aggregate, have a Material Adverse Effect.
(y) Except for such consents, approvals, authorizations, registrations or qualifications as may be required under
applicable state securities laws, the Act and the Trust Indenture Act, no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body to which any of the Partnership Parties or any of their
respective properties or assets is subject is required for the execution, delivery or performance of this Agreement, the Registration Rights Agreement, the Indenture, the Securities or the Exchange Securities by the Partnership Parties, the
consummation of the transactions contemplated by this Agreement, the Registration Rights Agremeent or the Indenture or the application of the proceeds from the sale of the Securities as described under the caption “Use of Proceeds” in each
of the Preliminary Memorandum and the Final Memorandum.
(z) At March 31, 2012, the Partnership would have
had, on the as adjusted basis indicated in each of the Disclosure Package and the Final Memorandum, a capitalization as set forth therein. The historical financial statements (including the related notes and supporting schedules) included in the
Preliminary Memorandum and the Final Memorandum present fairly in all material respects the financial position, results of operations and cash flows of the Partnership on the basis stated therein at the respective dates or for the respective periods
to which they apply, and have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved. The summary historical information set forth in the Preliminary Memorandum and the Final
Memorandum under the caption “Summary Historical Financial and Operating Data” is accurately presented in all material respects and prepared on a basis consistent with the audited and unaudited historical consolidated financial statements
from which it has been derived.
(aa) Deloitte & Touche LLP, who have certified certain financial
statements of the Partnership, whose report appears in each of the Preliminary Memorandum and the Final Memorandum and who have delivered the initial letter referred to in Section 6(e) hereof, are independent certified public accountants with
respect to the Partnership under
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Rule 101 of the AICPA’s Code of Professional Conduct and its interpretations and rulings and were such during the periods covered by the financial statements on which they reported.
(bb) The statistical and market-related data included in each of the Preliminary Memorandum and the Final
Memorandum are based on or derived from sources that the Partnership believes to be reliable and accurate in all material respects.
(cc) Each Partnership Party has good and indefeasible title to all real property and good title to all personal property contemplated as owned by it in each of the Preliminary Memorandum and the Final
Memorandum, in each case free and clear of all Liens and other defects, except as described in the Disclosure Package or that would not materially affect the value of such property and would not materially interfere with the use made and proposed to
be made of such property as described in each of the Preliminary Memorandum and the Final Memorandum. With respect to title to pipeline rights-of-way, neither of the Partnership Parties has received any actual notice or claim from any owner of land
upon which any pipeline that is owned by the Partnership is located that the Partnership does not have sufficient title to enable it to use and occupy the pipeline rights-of-way as they have been used and occupied in the past and are proposed to be
used and occupied in the future as described in each of the Preliminary Memorandum and the Final Memorandum, except where such failure to have sufficient title would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect. All assets held under lease or license by the Partnership Parties are held under valid, subsisting and enforceable leases or licenses, with such exceptions as would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect or materially interfere with the use made and proposed to be made of such assets as they have been used in the past and are proposed to be used in the future as described in each of the Preliminary Memorandum and
the Final Memorandum.
(dd) Each Partnership Party carries or is covered by insurance from insurers of
recognized financial responsibility in such amounts and covering such risks as is reasonably adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar
industries. All policies of insurance of the Partnership Parties are in full force and effect, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the Partnership Parties are in compliance
with the terms of such policies in all material respects; and no Partnership Party has received notice from any insurer or agent of such insurer that any material capital improvements or other expenditures are required or necessary to be made in
order to continue such insurance.
(ee) Each Partnership Party owns or possesses adequate rights to use all
material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the conduct of its business, and no Partnership Party has any reason to believe that the conduct by either Partnership Party of its business will conflict in any material respect with,
and no Partnership Party has received any notice or claim of conflict with, any such rights of any other person or party.
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(ff) Except as described in the Disclosure Package, there are no legal or
governmental proceedings pending to which either Partnership Party is a party or to which any property or asset of the Partnership Parties is subject that could reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect or a material adverse effect on the performance of this Agreement, the Indenture or the Securities or the consummation of the transactions contemplated by this Agreement or the Indenture, and to the knowledge of the Partnership Parties, no
such proceedings are threatened or contemplated by governmental authorities or others. There are no legal or governmental proceedings pending that would be required by the Act to be described in the Preliminary Memorandum and the Final Memorandum,
if the Preliminary Memorandum and the Final Memorandum were prospectuses included in a registration statement on Form S-1 filed with the Commission, that are not so described.
(gg) The statements set forth in each of the Preliminary Memorandum and the Final Memorandum under the caption
“Description of the Notes,” insofar as they purport to constitute a summary of the terms of the Indenture and the Securities or a summary of certain provisions of documents referred to therein, and under the caption “Certain United
States Federal Tax Consequences,” insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate summaries in all material respects
(hh) Except as described in the Disclosure Package, no labor disturbance by the employees of any Partnership Party (and to
the extent that they perform services on behalf of any Partnership Party, employees of any of their Affiliates) exists or, to the knowledge of the Partnership Parties, is imminent or threatened that could reasonably be expected to have a Material
Adverse Effect.
(ii) Since the date as of which information is given in the Preliminary Memorandum, except as
otherwise stated in the Disclosure Package, (i) neither Partnership Party has sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, any labor dispute or any
court or governmental action, order or decree, and (ii) there has not been any adverse change in the partners’ capital, members’ equity or short- or long-term debt of any Partnership Party or any adverse change, or any development
involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, securityholders’ equity, properties, management, business or prospects of any Partnership Party, in each case except as could
not reasonably be expected to have a Material Adverse Effect or as set forth or contemplated in the Disclosure Package.
(jj) Each Partnership Party has filed all tax returns required to be filed through the date hereof, which returns are complete and correct in all material respects, and has paid all taxes shown to be due
pursuant to such returns, other than those that (i) if not paid, could not reasonably be expected to have a Material Adverse Effect or (ii) are being contested in good faith and for which adequate reserves have been established in
accordance with generally accepted accounting principles.
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(kk) Since the date as of which information is given in the Preliminary
Memorandum, except as otherwise stated in the Disclosure Package, neither Partnership Party has (i) issued or granted any securities, (ii) incurred any liability or obligation, direct or contingent, other than liabilities and obligations
that were incurred in the ordinary course of business, (iii) entered into any transaction not in the ordinary course of business or (iv) declared or paid any dividend or distribution on its equity interests.
(ll) Each Partnership Party (i) makes and keeps accurate books and records and (ii) maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorizations, (B) transactions are recorded as necessary to permit
preparation of such Partnership Party’s financial statements in conformity with accounting principles generally accepted in the United States and to maintain accountability for its assets, (C) access to such Partnership Party’s assets
is permitted only in accordance with management’s general or specific authorization and (D) the recorded accountability for such Partnership Party’s assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. The Partnership Parties’ internal controls over financial reporting are effective and the Partnership Parties are not aware of any material weakness in their internal control over financial
reporting.
(mm) Since the date of the most recent balance sheet of the Partnership reviewed or audited by
Deloitte & Touche LLP, (i) the Partnership Parties have not been advised of (A) any significant deficiencies in the design or operation of internal controls that are reasonably likely to adversely affect the ability of the
Partnership to record, process, summarize and report financial data, or any material weaknesses in internal controls (whether or not remediated) and (B) any fraud, whether or not material, that involves management or other employees who have a
significant role in the internal controls of the Partnership, and (ii) since that date, there have been no changes in internal controls that have materially affected, or are reasonably likely to materially affect, internal controls, including
any corrective actions with regard to significant deficiencies and material weaknesses.
(nn) There is no
relationship, direct or indirect, between or among the Partnership Parties, on the one hand, and the directors, officers, securityholders, customers or suppliers of the Partnership Parties, on the other hand, that would be required by the Act to be
described in the Preliminary Memorandum and the Final Memorandum, if the Preliminary Memorandum and the Final Memorandum were prospectuses included in a registration statement on Form S-1 filed with the Commission, that is not so described.
(oo) Neither of the Partnership Parties (i) is in violation of its certificate or agreement of limited
partnership, certificate of formation or limited liability company agreement or other organizational documents, (ii) is in breach of or default under any
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term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, guarantee, lease or other agreement or instrument to which it is a party, by which it is bound or
to which any of its properties or assets is subject (and no event has occurred that, with notice or lapse of time or both, would constitute such a breach or default), (iii) is in violation of any statute, law, ordinance, rule, regulation,
order, judgment, decree or injunction of any court or governmental agency or body to which it or its property or assets may be subject or (iv) has failed to obtain any license, permit, certificate, franchise or other governmental authorization
or permit necessary to the ownership of its property or to the conduct of its business, except, in the case of clauses (ii) or (iv), as could not reasonably be expected to have a Material Adverse Effect.
(pp) Except as described in the Disclosure Package, the Partnership Parties (i) are in compliance with any and all
applicable federal, state and local laws, regulations, ordinances, rules, orders, judgments, decrees or other legal requirements relating to the protection of human health and safety, the environment or natural resources or imposing liability or
standards of conduct concerning any Hazardous Materials (as defined below) (“Environmental Laws”), (ii) have received, and as necessary maintained, all permits required of them under applicable Environmental Laws to conduct their
respective businesses, (iii) are in compliance with all terms and conditions of any such permits and (iv) do not have any liability in connection with the release into the environment of any Hazardous Material, except where such
noncompliance with Environmental Laws, failure to receive and maintain required permits, failure to comply with the terms and conditions of such permits or liability in connection with such releases could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The term “Hazardous Material” means (1) any “hazardous substance” as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended (“CERCLA”), (2) any “hazardous waste” as defined in the Resource Conservation and Recovery Act, as amended, (3) petroleum or any petroleum product, (4) any polychlorinated biphenyl and (5) any
pollutant, contaminant or hazardous, dangerous or toxic chemical, material, waste or substance regulated under or within the meaning of any other Environmental Law. No Partnership Party has been named as a “potentially responsible party”
under CERCLA or any other similar Environmental Law, except with respect to any matters that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Except as described in the Disclosure Package, no
Partnership Party (A) is a party to any proceeding under Environmental Laws in which a governmental authority is also a party, other than proceedings regarding which it is believed that no monetary penalties in excess of $100,000 will be
imposed, (B) has received notice of any potential liability for the disposal or release of any Hazardous Material, except where such liability could not reasonably be expected to have a Material Adverse Effect or (C) anticipates any
material capital expenditures relating to Environmental Laws.
(qq) Each Partnership Party is in compliance in
all material respects with all presently applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”); no “reportable
event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which any Partnership Party would have any
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liability; no Partnership Party has incurred or expects to incur liability under (i) Title IV of ERISA with respect to the termination of, or withdrawal from, any “pension plan” or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (the “Code”); and each “pension plan” that is intended to be qualified under
Section 401(a) of the Code and for which any Partnership Party would have any liability is so qualified and nothing has occurred, whether by action or by failure to act, that would cause the loss of such qualification.
(rr) Each Partnership Party has, or on the Closing Date will have, such permits, consents, licenses, franchises,
certificates and other approvals or authorizations of governmental or regulatory authorities (“Permits”) as are necessary to own or lease its properties and to conduct its business in the manner described in each of the Preliminary
Memorandum and the Final Memorandum, except as disclosed in or specifically contemplated by the Disclosure Package or except for any failure to have any such Permit that could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. Except as described in the Disclosure Package, each Partnership Party has fulfilled and performed all of its material obligations with respect to all such Permits, and no event has occurred that would prevent any such Permit
from being renewed or reissued, that allows, or after notice or lapse of time would allow, revocation or termination of any such Permit or that would result in any other impairment of the rights of the holder of any such Permit, except for any such
non-renewal, revocation, termination or impairment that could not reasonably be expected to have a Material Adverse Effect.
(ss) The Partnership is not, and as of the Closing Date and after giving effect to the application of the net proceeds of the offering as described under the caption “Use of Proceeds” in the
Disclosure Package and the Final Memorandum, the Partnership will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(tt) Neither of the Partnership Parties or, to the knowledge of the Partnership Parties, any of their Affiliates, has
distributed, and prior to the later to occur of the Closing Date and completion of the distribution of the Securities, neither of the Partnership Parties or, to the knowledge of the Partnership Parties, any of their affiliates, will distribute, any
offering material in connection with the offering and sale of the Securities other than the Disclosure Package and the Final Memorandum.
(uu) Neither of the Partnership Parties or, to the knowledge of the Partnership Parties, any of their affiliates has taken, nor will either of the Partnership Parties or, to the knowledge of the
Partnership Parties, any of their affiliates take, directly or indirectly, any action that has constituted, that was designed to cause or result in, or that could reasonably be expected to cause or result in, the stabilization or manipulation of the
price of any security of any Partnership Party to facilitate the sale or resale of the Securities.
(vv) Except
for this Agreement, there are no contracts, agreements or understandings between the Partnership and any person that would give rise to a valid claim against the Partnership Parties or any Initial Purchaser for a brokerage commission, finder’s
fee or other like payment in connection with the offering and sale of the Securities contemplated by this Agreement.
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(ww) Except as disclosed in the Preliminary Memorandum and the Final
Memorandum, the Partnership (i) does not have any material lending or other relationship with any Initial Purchaser or affiliate of any Initial Purchaser and (ii) does not intend to use any of the proceeds from the sale of the Securities
hereunder to repay any outstanding debt owed to any Initial Purchaser or any affiliate of any Initial Purchaser.
(xx) Neither the Partnership Parties nor, to the knowledge of the Partnership Parties, any director, officer, agent,
employee or other person acting on behalf of the Partnership Parties has, in the course of its actions for, or on behalf of, the Partnership Parties, violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder.
(yy) The operations of the Partnership Parties are and have
been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions,
the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by
or before any court or governmental agency, authority or body or any arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Partnership Parties, threatened.
(zz) The Partnership Parties are not and, to the knowledge of the Partnership Parties, no director, officer, agent,
employee, Affiliate or person acting on behalf of the Partnership Parties, is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department.
Any certificate signed by or on behalf of any Partnership Party and delivered to the Representatives or counsel for the
Initial Purchasers in connection with the offering of the Securities shall be deemed a representation and warranty by each such Partnership Party, as to matters covered thereby, to each Initial Purchaser.
2.
Purchase and Sale
. Subject to the terms and conditions and in reliance upon the representations and warranties herein set
forth, the Partnership agrees to sell to each Initial Purchaser, and each Initial Purchaser agrees, severally and not jointly, to purchase from the Partnership, at a purchase price of 98.991% of the principal amount thereof, plus accrued interest,
if any, from June 12, 2012 to the Closing Date, the principal amount of the Securities set forth opposite such Initial Purchaser’s name in Schedule I hereto.
3.
Delivery and Payment
. Delivery of and payment for the Securities shall be made at 10:00 A.M., New York City time, on June 12, 2012, or at such time on such later date not more than three
Business Days after the foregoing date as the Representatives shall designate, which date and time may be postponed by agreement between the Representatives and the
13
Partnership or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several Initial Purchasers against payment by the several Initial Purchasers through the Representatives of the purchase price thereof to or upon the order of the Partnership by
wire transfer payable in same-day funds to the account specified by the Partnership. Delivery of the Securities shall be made through the facilities of The Depository Trust Company, New York, New York (“DTC”) unless the Representatives
shall otherwise instruct.
4.
Offering, Representations and Warranties by Initial Purchasers
.
(a) Each Initial Purchaser acknowledges that the Securities have not been and will not be registered under the Act and may
not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (as defined in Regulation S) except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Act.
(b) Each Initial Purchaser, severally and not jointly, represents and warrants to and agrees with the
Partnership Parties that:
(i) it has not offered or sold, and will not offer or sell, any Securities as
part of their distribution at any time except:
(A) within the United States to persons, or to, or for the
account of benefit of, U.S. persons, in each case whom it reasonably believes to be “qualified institutional buyers” (as defined in Rule 144A under the Act) or
(B) to persons other than U.S. persons outside the United States in accordance with Rule 903 of Regulation S;
(ii) neither it nor any person acting on its behalf has made or will make offers or sales of the Securities in
the United States by means of any form of general solicitation or general advertising (within the meaning of Regulation D) in the United States;
(iii) in connection with each sale pursuant to Section 4(b)(i)(A), it has taken or will take reasonable steps to ensure that the purchaser of such Securities is aware that such sale may be made in
reliance on Rule 144A;
(iv) neither it, nor any of its Affiliates nor any person acting on its or their
behalf, has engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities;
(v) it is an “accredited investor” (as defined in Rule 501(a) of Regulation D);
(vi) without the prior written consent of the Partnership, it has not given and will not give to any prospective purchaser of the Securities any written
14
information concerning the offering of the Securities (“Written Information”) other than materials contained in the Disclosure Package, the Final Memorandum or any other offering
materials prepared by or with the prior written consent of the Partnership; provided that the prior written consent of the Partnership shall be deemed to have been given in respect of (x) preliminary and final term sheets relating to the offer
and sale of the Securities containing customary terms and (y) material relating to the offer and sale of the Securities prepared by the Initial Purchasers that does not contain information provided by or on behalf of the Partnership
specifically for use in such material;
(vii) at or prior to the confirmation of any sale of Securities
pursuant to Regulation S, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it or through it during the distribution compliance period (as defined in
Regulation S) a confirmation or notice to substantially the following effect:
“The Securities covered
hereby have not been registered under the U.S. Securities Act of 1933, as amended (the “Act”), and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering and the date of closing of the offering, except in either case in accordance with Regulation S or Rule 144A under the Act. Terms used
in this paragraph have the meanings given to them by Regulation S;”
(viii) it has only communicated or
caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the
“FSMA”)) received by it in connection with the issue or sale of any Securities, in circumstances in which Section 21(1) of the FSMA does not apply to the Partnership Parties;
(ix) it has complied and will comply with all applicable provisions of the FMSA with respect to anything done by it in
relation to the Securities in, from and otherwise involving the United Kingdom; and
(x) In relation to each
Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member
State (the “Relevant Implementation Date”), it has not made and will not make an offer of the Securities to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Securities which has been
approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive
and the 2010 PD Amending Directive to the extent implemented, except that it may, with effect from and including the Relevant Implementation Date, make an offer of Securities to the public in that Relevant Member State at any time:
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(A)
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to any legal entity which is a qualified investor as defined in the Prospectus Directive or the 2010 PD Amending Directive if the relevant provision has been
implemented;
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(B)
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to fewer than (i) 100 natural or legal persons per Relevant Member State (other than qualified investors as defined in the Prospectus Directive or the 2010 PD
Amending Directive if the relevant provision has been implemented) or (ii) if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150 natural or legal persons per Relevant Member State (other than
qualified investors as defined in the Prospectus Directive or the 2010 PD Amending Directive if the relevant provision has been implemented), subject to obtaining the prior consent of the relevant dealer or dealers nominated by the Company for any
such offer; or
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(C)
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in any other circumstances falling within Article 3(2) of the Prospectus Directive or Article 3(2) of the 2010 PD Amending Directive to the extent implemented;
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provided
that no such offer of Securities shall result in a requirement for the publication by the
Company or any Initial Purchaser of a prospectus pursuant to Article 3 of the Prospectus Directive.
For the
purposes of this provision, the expression an “offer of the Securities to the public,” in relation to any Securities in any Relevant Member State, means the communication in any form and by any means of sufficient information on the terms
of the offer and the notes to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant
Member State, the expression “Prospectus Directive” means Directive 2003/71/EC, and includes any relevant implementing measure in that Relevant Member State, and the expression “2010 PD Amending Directive” means Directive
2010/73/EC.
5.
Agreements
. The Partnership Parties agree with each Initial Purchaser that:
(a) The Partnership will furnish to each Initial Purchaser and to counsel for the Initial Purchasers, without charge,
during the period referred to in Section 5(d) below, as many copies of the Disclosure Package, the Final Memorandum, each amendment or supplement thereto, and the materials contained therein as they may reasonably request.
(b) The Partnership will prepare a final term sheet, containing solely a description of final terms of the Securities and
the offering thereof, in the form approved by you and attached as Schedule III hereto.
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(c) The Partnership will not amend or supplement the Disclosure Package or
the Final Memorandum without the prior written consent of the Representatives.
(d) If at any time prior to the
completion of the sale of the Securities by the Initial Purchasers (as determined by the Representatives), any event occurs as a result of which the Disclosure Package or the Final Memorandum, as then amended or supplemented, would include any
untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading, or if it
should be necessary to amend or supplement the Disclosure Package or the Final Memorandum to comply with applicable law, the Partnership will promptly (i) notify the Representatives of any such event; (ii) subject to the requirements of
Section 5(c), prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any supplemented or amended Disclosure Package or Final Memorandum to the several Initial Purchasers
and counsel for the Initial Purchasers without charge in such quantities as they may reasonably request.
(e)
Without the prior written consent of the Representatives, the Partnership Parties have not given and will not give to any prospective purchaser of the Securities any Written Information other than materials contained in the Disclosure Package, the
Final Memorandum or any other offering materials prepared by or with the prior written consent of the Representatives.
(f) The Partnership will arrange, if necessary, for the qualification of the Securities for sale by the Initial Purchasers under the laws of such jurisdictions as the Representatives may reasonably
designate and will maintain such qualifications in effect so long as reasonably required for the sale of the Securities;
provided
that in no event shall the Partnership be obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action that would subject it to service of process in suits in any jurisdiction where it is not now so subject. The Partnership will promptly advise the Representatives of the receipt by the Partnership of any
notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(g) In connection with any registration of the Securities pursuant to the Registration Rights Agreement, or at such
earlier time as may be so required, to qualify the Indenture under the Trust Indenture Act.
(h) During the
period of two years following the Closing Date, the Partnership Parties will not, and will not permit any of its Affiliates to, resell any Securities that have been acquired by any of them.
(i) None of the Partnership Parties, their Affiliates, or any person acting on their behalf will, directly or indirectly,
make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Securities under the Act.
17
(j) None of the Partnership Parties, their Affiliates, or any person acting
on their behalf will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities.
(k) None of the Partnership Parties, their Affiliates, or any person acting on their behalf will engage in any form of general solicitation or general advertising (within the meaning of Regulation D)
in connection with any offer or sale of the Securities in the United States.
(l) For so long as any of the
Securities are outstanding and are “restricted securities” within the meaning of Rule 144(a)(3) under the Act, the Partnership, during any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange
Act or it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, will provide to each holder of such restricted securities and to each prospective purchaser (as designated by such
holder) of such restricted securities, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Act. This covenant is intended to be for the benefit of the holders, and the
prospective purchasers designated by such holders, from time to time of such restricted securities.
(m) The
Partnership Parties will cooperate with the Representatives and use their commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through DTC.
(n) Each of the Securities will bear, to the extent applicable, the legend contained in “Notice to Investors” in
the Preliminary Memorandum and the Final Memorandum for the time period and upon the other terms stated therein.
(o) The Partnership Parties will not take, directly or indirectly, any action that constitutes, or that is designed to or
that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Securities.
(p) The Partnership will, for a period of twelve months following the Execution Time, furnish to the Representatives
(i) all reports or other communications (financial or other) generally made available to the unitholders of Boardwalk Pipeline Partners, LP, and deliver such reports and communications to the Representatives as soon as they are available,
unless such documents are furnished to or filed with the Commission or any securities exchange on which any class of securities of the Partnership is listed and generally made available to the public, and (ii) such additional information
concerning the business and financial condition of the Partnership as the Representatives may from time to time reasonably request.
(q) The Partnership will comply with all applicable securities and other laws, rules and regulations, and use its best efforts to cause the Partnership Parties’ directors and officers, in their
capacities as such, to comply with such laws, rules and regulations.
18
(r) The Partnership agrees, whether or not the transactions contemplated by
this Agreement are consummated or this Agreement is terminated, to pay all the costs, expenses, fees and taxes incident to and in connection with the following matters: (i) the issuance of the Securities and the Exchange Securities and the fees
of the Trustee; (ii) the preparation, printing or reproduction of the Disclosure Package, the Final Memorandum, each amendment or supplement thereto, and the materials contained therein; (iii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging) of such copies of the Disclosure Package, the Final Memorandum, each amendment or supplement thereto, and the materials contained therein, as may, in each case, be
reasonably requested for use in connection with the offering, purchase, sale and delivery of the Securities; (iv) the authentication, issuance and delivery of the Securities and the Exchange Securities; (v) any stamp or transfer taxes in
connection with the original issuance and sale of the Securities; (vi) the preparation and delivery of any blue sky memorandum; (vii) any registration or qualification of the Securities and the Exchange Securities for offer and sale under
the securities or blue sky laws of the several states and any other jurisdictions specified pursuant to Section 5(f) (including filing fees and the reasonable fees and expenses of counsel for the Initial Purchasers relating to such registration
and qualification); (viii) the transportation and other expenses incurred by or on behalf of Partnership representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the
Partnership’s accountants and the fees and expenses of counsel (including local and special counsel) for the Partnership; and (x) all other costs and expenses incident to the performance by the Partnership of its obligations hereunder;
provided
that, except as provided in this Section 5 and in Section 7 hereof, the Initial Purchasers shall pay their own costs and expenses, including the costs and expenses of their counsel, any transfer taxes on the Securities that
they may sell and the expenses of advertising any offering of the Securities made by the Initial Purchasers.
6.
Conditions
to the Obligations of the Initial Purchasers
. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties of the Partnership Parties contained herein at the
Execution Time and on the Closing Date, to the accuracy of the statements of the Partnership Parties made in any certificates pursuant to the provisions hereof, to the performance by the Partnership Parties of their obligations hereunder and to the
following additional conditions:
(a) The Partnership shall have requested and caused Vinson & Elkins
L.L.P., counsel for the Partnership, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) Assuming the accuracy of the representations and warranties and compliance with the agreements contained herein
(without regard to the representation found in Section 1(g)), no registration under the Act of the Securities is required for the sale and delivery of the Securities by the Partnership to the Initial Purchasers or the offer and sale by the
Initial Purchasers of the Securities solely in the manner contemplated herein, in the Disclosure Package and in the Final Memorandum and no qualification of an indenture under the Trust Indenture Act is required;
provided
,
however
,
that such counsel expresses no opinion as to any subsequent resale of any Security;
19
(ii) The Partnership has been duly formed and is validly existing and in
good standing as a limited partnership under the Delaware LP Act, has the full partnership power and authority necessary to own or hold its properties and assets and to conduct the businesses in which it is engaged, and is duly registered or
qualified to do business and is in good standing as a foreign limited partnership in each jurisdiction listed opposite its name in Schedule II hereto;
(iii) The General Partner has been duly formed and is validly existing and in good standing as a limited liability company under the Delaware LLC Act, has the full limited liability company power and
authority necessary to own or hold its properties and assets and to conduct the businesses in which it is engaged, and is duly registered or qualified to do business and is in good standing as a foreign limited liability company in each jurisdiction
listed opposite its name in Schedule II hereto;
(iv) The Operating Partnership owns a 100% limited liability
company interest in the General Partner; such limited liability company interest has been duly and validly authorized and issued in accordance with the GP LLC Agreement and is fully paid (to the extent required under the GP LLC Agreement) and
non-assessable (except as such non-assessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns such limited liability company interest free and clear of all Liens (except restrictions on
transferability contained in the GP LLC Agreement, as described in the Preliminary Memorandum or created or arising under the Delaware LLC Act) (i) in respect of which a financing statement under the Uniform Commercial Code of the State of
Delaware naming the Operating Partnership as debtor is on file with the Secretary of State of the State of Delaware or (ii) otherwise known to such counsel, without independent investigation;
(v) The General Partner is the sole general partner of the Partnership, with a 1.0% general partner interest in the
Partnership; such general partner interest has been duly and validly authorized and issued in accordance with the Partnership Agreement; and the General Partner owns such general partner interest free and clear of all Liens (except restrictions on
transferability contained in the Partnership Agreement, as described in the Preliminary Memorandum or created or arising under the Delaware LP Act) (A) in respect of which a financing statement under the Uniform Commercial Code of the State of
Delaware naming the General Partner as debtor is on file with the Secretary of State of the State of Delaware or (B) otherwise known to such counsel, without independent investigation. The Operating Partnership is the sole limited partner of
the Partnership, with a 99.0% limited partner interest in the Partnership; such limited partner interest has been duly and validly authorized and issued in accordance with the Partnership Agreement and is fully paid (to the extent required under the
Partnership Agreement) and non-assessable (except as such non-assessability may
20
be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act); and the Operating Partnership owns such limited partner interest free and clear of all Liens (except restrictions on
transferability contained in the Partnership Agreement, as described in the Preliminary Memorandum or created or arising under the Delaware LP Act) (A) in respect of which a financing statement under the Uniform Commercial Code of the State of
Delaware naming the Operating Partnership as debtor is on file with the Secretary of State of the State of Delaware or (B) otherwise known to such counsel, without independent investigation;
(vi) The Purchase Agreement has been duly authorized and validly executed and delivered by each of the Partnership
Parties;
(vii) The Registration Rights Agreement has been duly authorized and validly executed and delivered
by each of the Partnership Parties and (assuming the due authorization, execution and delivery thereof by the Initial Purchasers) constitutes a valid and binding agreement of each of the Partnership Parties, enforceable against each of them in
accordance with its terms, subject to (i) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at law) and (ii) public policy considerations relating to rights to indemnification or contribution and an implied covenant of good faith and fair dealing;
(viii) The Indenture has been duly authorized, executed and delivered by the Partnership and (assuming the due
authorization, execution and delivery thereof by the Trustee) constitutes a valid and binding agreement of the Partnership, enforceable against the Partnership in accordance with its terms, subject to (i) applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and an implied covenant of good faith and fair dealing, (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (iii) public policy considerations relating to rights to indemnification or contribution;
(ix) The Securities have been duly authorized by the Partnership and, assuming that the Securities have been duly
authenticated by the Trustee in the manner described in its certificate delivered to you today (which fact such counsel need not determine by an inspection of the Securities) and have been delivered against payment of the purchase price therefor as
provided in the Purchase Agreement, the Securities have been duly executed, issued and delivered by the Partnership and constitute valid and binding obligations of the Partnership, enforceable against the Partnership in accordance with their terms,
subject to (i) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and an implied covenant of good faith and fair dealing,
(ii) general principles of
21
equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) public policy considerations relating to rights to indemnification or
contribution, and will be in the form contemplated by, and entitled to the benefits of, the Indenture;
(x) The
Exchange Securities have been duly authorized by the Partnership and, when the Exchange Securities have been validly issued and duly authenticated in accordance with the terms of the Indenture, the Registration Rights Agreement and the Exchange
Offer, the Exchange Securities will have been duly executed, issued and delivered by the Partnership and constitute valid and binding obligations of the Partnership, enforceable against the Partnership in accordance with their terms, subject to
(i) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and an implied covenant of good faith and fair dealing, (ii) general
principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) public policy considerations relating to rights to indemnification or contribution, and will be in the form
contemplated by, and entitled to the benefits of, the Indenture;
(xi) None of the offering, issuance or sale
by the Partnership of the Securities, the execution, delivery or performance of this Agreement, the Registration Rights Agreement, the Indenture, the Securities or the Exchange Securities by the Partnership Parties that are parties thereto, or the
consummation of the transactions contemplated by this Agreement, the Registration Rights Agreement or the Indenture (i) constitutes or will constitute a violation of the certificate or agreement of limited partnership, certificate of formation,
limited liability company agreement or other organizational documents of either of the Partnership Parties, (ii) constitutes or will constitute a breach or violation of or a default under (or an event that, with notice or lapse of time or both,
would constitute such a breach or violation of or default under), any agreement filed as an exhibit to Boardwalk Pipeline Partners, LP’s Form 10-K for the year ended December 31, 2011 or any reports filed by Boardwalk Pipeline Partners, LP
under the Exchange Act subsequent to December 31, 2011, or (iii) violates or will violate any applicable law of the United States of America or the State of New York, the Delaware LP Act or the Delaware LLC Act, excluding in the case of
clauses (ii) and (iii) any such breaches, violations and defaults that would not have a Material Adverse Effect;
(xii) Subject to the assumptions contained in (i), no Governmental Approval is required for the execution, delivery or performance of this Agreement, the Registration Rights Agreement, the Indenture, the
Securities or the Exchange Securities by the Partnership Parties that are parties thereto, the consummation of the transactions contemplated by this Agreement, the Registration Rights Agreement or the Indenture or the application of the proceeds
from the sale of the Securities as described under the caption “Use of Proceeds” in each of the Preliminary Memorandum and the Final Memorandum, except for such Governmental Approvals (i) as have been obtained or made, (ii) as
may be
22
required under the Act or the Trust Indenture Act pursuant to the Registration Rights Agreement or (iii) would not have a Material Adverse Effect if not obtained or made;
(xiii) The statements set forth in each of the Preliminary Memorandum and the Final Memorandum under the caption
“Description of the Notes,” insofar as they purport to constitute a summary of the terms of the Indenture and the Securities or a summary of certain provisions of documents referred to therein, and under the caption “Certain United
States Federal Tax Consequences,” insofar as they purport to summarize the laws referred to therein, are accurate summaries in all material respects, subject to the qualifications and assumptions therein; and the Securities and the Indenture
conform in all material respects to the descriptions thereof contained in the Preliminary Memorandum and the Final Memorandum under the caption “Description of the Notes;” and
(xiv) The Partnership is not, and after giving effect to the application of the net proceeds from the offering as
described under the caption “Use of Proceeds” in each of the Preliminary Memorandum and the Final Memorandum, the Partnership will not be, an “investment company” as defined in the Investment Company Act.
In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of
the United States of America, the laws of the State of New York, the Delaware LP Act and the Delaware LLC Act. Such counsel need not express any opinion with respect to the title of any of the Partnership Parties to any of their respective real or
personal property, and need not express any opinion with respect to state or local taxes or tax statutes to which any of the Partnership Parties may be subject.
In addition, such counsel shall state that it has participated in conferences with officers and other representatives of the Partnership Parties, representatives of the independent public accountants of
the Partnership and representatives of the Initial Purchasers, at which the contents of the Disclosure Package and the Final Memorandum and related matters were discussed, and although such counsel did not independently investigate or verify the
information set forth in the Disclosure Package and the Final Memorandum, and such counsel is not passing upon and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Disclosure Package
and the Final Memorandum (except to the extent specified in paragraph (xi) above), based on the foregoing (relying as to factual matters in respect of the determination of materiality to the extent such counsel deems reasonable and appropriate
upon the statements of fact made by officers and other representatives of the Partnership Parties), no facts have come to such counsel’s attention that have led such counsel to believe that:
(A) the Final Memorandum, as of its date and as of the Closing Date, contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
23
(B) the Disclosure Package, as of the Execution Time, contained any untrue
statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
except that in each case such counsel need express no opinion with respect to the financial statements and notes and schedules thereto or
other related financial and accounting data contained in or omitted from the Disclosure Package or the Final Memorandum or any further amendment or supplement thereto.
“Applicable law” means those laws, rules and regulations that, in such counsel’s experience, are normally
applicable to transactions of the type contemplated by the Purchase Agreement, the Indenture and the Securities without such counsel’s having made any special investigation as to the applicability of any specific law, rule or regulation, and
that are not the subject of a specific opinion herein referring expressly to a particular law or laws; provided however, that such references do not include any municipal or other local laws, rules or regulations, any antifraud, environmental,
labor, tax, state securities or Blue Sky, insurance or antitrust laws, rules or regulations, the Natural Gas Act, as amended, the rules and regulations promulgated thereunder by the Federal Energy Regulatory Commission, and the rules and regulations
of FINRA.
“Governmental Approval” means any consent, approval, license, authorization or validation
of, or filing, recording or registration with, any executive, legislative, judicial, administrative or regulatory authority of the State of New York, the State of Delaware or the United States of America, pursuant to (a) applicable laws of the
State of New York, (b) applicable laws of the United States of America, (c) the Delaware LP Act or (d) the Delaware LLC Act.
(b) The Partnership shall have requested and caused Michael E. McMahon, General Counsel for the General Partner, to furnish to the Representatives his opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) Except as described in the Disclosure Package, there are no legal or
governmental proceedings pending to which either Partnership Party is a party or to which any property or asset of either Partnership Party is subject that, if determined adversely to such Partnership Party, could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect or an adverse effect on the performance of the Purchase Agreement or the consummation of the transactions contemplated thereby, and, to his knowledge, no such proceedings are threatened or
contemplated by governmental authorities or others; and to his knowledge, there are no statutes or pending or threatened legal or governmental proceedings that would be required by the Act to be described in the Preliminary Memorandum and the Final
Memorandum, if the Preliminary Memorandum and the Final Memorandum were prospectuses included in a registration statement on Form S-1 filed with the Commission, that are not so described;
24
(ii) The statements made in each of the Preliminary Memorandum and the Final
Memorandum under the caption “Business—Government Regulation,” insofar as they refer to statements of law or legal conclusions, fairly summarize the matters referred to therein in all material respects, subject to the qualifications
and assumptions therein; and
(iii) None of the offering, issuance or sale by the Partnership of the
Securities or the application of the proceeds therefrom as described under the caption “Use of Proceeds” in the Preliminary Memorandum and the Final Memorandum, the execution, delivery or performance of this Agreement, the Indenture or the
Securities by the Partnership Parties, or the consummation of the transactions contemplated by this Agreement or the Indenture violates or will violate the Natural Gas Act, as amended, or the rules and regulations promulgated thereunder by the
Federal Energy Regulatory Commission.
In addition, he shall state that he has participated in conferences with
officers and other representatives of the Partnership Parties, representatives of the independent registered public accounting firm of the Partnership and representatives of the Initial Purchasers, at which the contents of the Disclosure Package and
Final Memorandum and related matters were discussed, and although he did not independently investigate or verify the information set forth in the Disclosure Package and Final Memorandum, and he is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure Package and Final Memorandum (except to the extent specified in paragraphs (i) and (ii) above), based on the foregoing (relying as to
factual matters in respect of the determination of materiality to the extent he deems reasonable and appropriate upon the statements of fact made by officers and other representatives of the Partnership Parties), no facts have come to his attention
that have led such counsel to believe that:
(A) the Final Memorandum, as of its date and as of the Closing
Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; or
(B) the Disclosure Package, as of the Execution Time, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
except that in each case he need express no opinion with respect to the financial statements and notes and schedules thereto or other related financial and accounting data contained in or omitted from the
Disclosure Package or the Final Memorandum or any further amendment or supplement thereto.
25
(c) The Representatives shall have received from Andrews Kurth LLP, counsel
for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Disclosure Package, the Final Memorandum (as amended or
supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such
matters.
(d) The General Partner shall have furnished to the Representatives a certificate of the General
Partner, on behalf of the Partnership, signed by (x) the President of the General Partner and (y) the principal financial or accounting officer of the General Partner, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Disclosure Package and the Final Memorandum, any supplements or amendments thereto, and this Agreement and that:
(i) the representations and warranties of the Partnership Parties in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and each of the
Partnership Parties has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
(ii) since the date of the most recent financial statements included in the Disclosure Package and the Final Memorandum
(exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Partnership Parties, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) At the Execution Time, the Partnership shall have requested and caused Deloitte & Touche LLP to furnish to
the Representatives a letter (the “initial letter”), dated as of the Execution Time, in form and substance satisfactory to the Representatives, (i) confirming that they are independent certified public accountants with respect to the
Partnership under Rule 101 of the AICPA’s Code of Professional Conduct and its interpretations and rulings, (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of
which specified information is given in the Disclosure Package or the Final Memorandum, as of a date not more than three business days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and
(iii) covering such other matters as are ordinarily covered by accountants in “comfort letters” to underwriters in connection with offerings of securities.
(f) On the Closing Date, the Partnership shall have requested and caused Deloitte & Touche LLP to furnish to the
Representatives a letter, dated as of the Closing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent certified public accountants with respect to the Partnership under Rule
26
101 of the AICPA’s Code of Professional Conduct and its interpretations and rulings, (ii) stating, as of the Closing Date (or, with respect to matters involving changes or developments
since the respective dates as of which specified information is given in the Disclosure Package or the Final Memorandum, as of a date not more than three business days prior to the Closing Date), the conclusions and findings of such firm with
respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) Subsequent to the Execution Time or, if earlier, the date of the most recent financial statements included in the
Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred
to in paragraph (e) of this Section 6; or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the
Partnership Parties taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement
thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or delivery of
the Securities as contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto).
(h) The Securities shall be eligible for clearance and settlement through DTC.
(i) Subsequent to the Execution Time, there shall not have been any downgrading in the rating of any debt securities of the Partnership or any of its Affiliates by any “nationally recognized
statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the
direction of the possible change.
(j) The Partnership and the Trustee shall have executed and delivered the
Indenture. The Partnership Parties shall have entered into the Registration Rights Agreement, and the Initial Purchasers shall have received executed counterparts thereof.
(k) Prior to the Closing Date, the Partnership shall have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably request.
If any of the conditions specified
in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial
27
Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Partnership in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6
will be delivered at the office of counsel for the Initial Purchasers, at 600 Travis, Suite 4200, Houston, Texas 77002, on the Closing Date.
7.
Reimbursement of Expenses
. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Initial Purchasers set forth in Section 6
hereof is not satisfied or because of any refusal, inability or failure on the part of either of the Partnership Parties to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Initial
Purchasers, the Partnership Parties will reimburse the Initial Purchasers severally through J.P. Morgan Securities LLC on demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
8.
Indemnification and Contribution
.
(a) The Partnership Parties, jointly and severally, agree to indemnify and hold harmless each Initial
Purchaser, its directors and officers and each person, if any, who controls such Initial Purchaser within the meaning of Section 15 of the Act or Section 20 of the Exchange Act and any affiliates of such Initial Purchaser who have, or who
are alleged to have, participated in the offer, sale or delivery of the Securities as an Initial Purchaser (such affiliates being referred to herein as “Participating Affiliates”), from and against any and all losses, claims, damages and
liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based
upon, any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Memorandum, the Final Memorandum, any Issuer Written Information or any other written information used by or on behalf of the Partnership in
connection with the offer or sale of the Securities (or any amendment or supplement thereto) or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon
and in conformity with any information furnished to the Partnership in writing by such Initial Purchaser through the Representatives expressly for use therein.
(b) Each Initial Purchaser agrees, severally and not jointly, to indemnify and hold harmless the Partnership Parties, their directors and officers and each person, if any, who controls the Partnership
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of,
or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information furnished to the
28
Partnership in writing by such Initial Purchaser through the Representatives expressly for use in the Preliminary Memorandum, the Final Memorandum, any Issuer Written Information or any other
written information used by or on behalf of the Partnership in connection with the offer or sale of the Securities (or any amendment or supplement thereto), it being understood and agreed that: (i) the last paragraph of the cover page of the
Preliminary Memorandum and the Final Memorandum (regarding delivery of the Securities) and (ii) (A) the table of Initial Purchasers (including the principal amount of Securities to be purchased by such Initial Purchasers) and (B) the
7th and 8th paragraphs (related to stabilization and syndicate covering transactions), in each case appearing under the heading “Plan of Distribution” in the Preliminary Memorandum and the Final Memorandum, constitute the only information
furnished in writing by or on behalf of the Initial Purchasers for inclusion in the Preliminary Memorandum or the Final Memorandum.
(c) If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be
sought pursuant to either paragraph (a) or (b) above, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification may be sought (the “Indemnifying Person”) in writing;
provided
that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under this Section 8 except to the extent that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and
provided
,
further
, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under this Section 8.
If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall
not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 8 that the Indemnifying Person may designate in
such proceeding and shall pay the fees and expenses of such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm for any Initial
Purchaser, its directors and officers, Participating Affiliates
29
and any control persons of such Initial Purchaser shall be designated in writing by J.P. Morgan Securities LLC and any such separate firm for the Partnership Parties, their directors and officers
and any control persons of the Partnership Parties shall be designated in writing by the Partnership. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding
in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person,
in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of any Indemnified Person. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent (such consent not to be unreasonably withheld), but if settled with the
consent of the Indemnifying Person or if there be a final judgment for the plaintiff in any such proceeding, the Indemnifying Person agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Partnership Parties on the
one hand and the Initial Purchasers on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative fault of the Partnership Parties on the one hand and the Initial Purchasers on the other in connection with the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Partnership Parties on the one hand and the Initial Purchasers on the other shall be deemed to be in the same respective proportions as the
net proceeds (before deducting expenses) received by the Partnership Parties from the sale of the Securities and the total discounts and commissions received by the Initial Purchasers in connection therewith, as provided in this Agreement, bear to
the aggregate offering price of the Securities. The relative fault of the Partnership Parties on the one hand and the Initial Purchasers on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Partnership Parties or by the Initial Purchasers and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The Partnership Parties and the Initial
Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 8 were determined by
pro rata
allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable
30
considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this
Section 8, in no event shall an Initial Purchaser be required to contribute any amount in excess of the amount by which the total discounts and commissions received by such Initial Purchaser with respect to the offering of the Securities
exceeds the amount of any damages that such Initial Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Initial Purchasers’ obligations to contribute pursuant to this Section 8 are several
in proportion to their respective purchase obligations hereunder and not joint.
(f) The remedies provided for
in this Section 8 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
9.
Default by an Initial Purchaser
. If any one or more Initial Purchasers shall fail to purchase and pay for any of the Securities agreed to be purchased by such Initial Purchaser(s) hereunder and
such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Initial Purchaser(s) shall be obligated severally to take up and pay for (in the respective proportions which the
principal amount of Securities set forth opposite their names in Schedule I hereto bears to the aggregate principal amount of Securities set forth opposite the names of all the remaining Initial Purchaser(s)) the Securities which the defaulting
Initial Purchaser(s) agreed but failed to purchase;
provided
,
however
, that in the event that the aggregate principal amount of Securities which the defaulting Initial Purchaser(s) agreed but failed to purchase shall exceed 10% of the
aggregate principal amount of Securities set forth in Schedule I hereto, the remaining Initial Purchaser(s) shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such
nondefaulting Initial Purchaser(s) do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Initial Purchaser(s) or the Partnership Parties. In the event of a default by any Initial Purchaser as set
forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the required changes in the Final Memorandum or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Initial Purchaser of its liability, if any, to the Partnership Parties or any nondefaulting Initial Purchaser for damages occasioned by its default
hereunder.
10.
Termination
. This Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to the Partnership prior to delivery of and payment for the Securities, if at any time prior to such time (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq Stock Market shall have been suspended or limited or minimum prices shall have been established on such exchange; (ii) trading in any securities of Boardwalk Pipeline Partners, LP or any of its subsidiaries on any exchange or in the
over-the-counter market shall have been suspended or
31
materially limited or minimum prices shall have been established on such exchange or such market; (iii) a banking moratorium shall have been declared either by U.S. federal or New York State
authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war or other calamity or crisis the effect of which on financial markets is such as to make
it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the offer, sale or delivery of the Securities as contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement
thereto).
11.
Representations and Indemnities to Survive
. The respective agreements, representations,
warranties, indemnities and other statements of the Partnership Parties or their officers and of the Initial Purchasers set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or
on behalf of the Initial Purchasers or the Partnership Parties or any of the indemnified persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12.
Notices
. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019 (fax no. (646) 834-8133), Attention: Syndicate
Registration, and J.P. Morgan Securities LLC, 383 Madison Avenue, 3rd Floor, New York, New York 10179, Attn: High Grade Syndicate Desk (fax no.: (713) 834-6081); or, if sent to the Partnership Parties, will be mailed, delivered or telefaxed to
(270) 683-5657 and confirmed to it at the Partnership’s address set forth in the Final Memorandum, attention of the Chief Financial Officer.
13.
Successors
. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the indemnified persons referred to in Section 8 hereof
and their respective successors, and, except as expressly set forth in Section 5(k) hereof, no other person will have any right or obligation hereunder.
14.
Jurisdiction
. The Partnership Parties hereby submit to the non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
15.
Integration
. This
Agreement supersedes all prior agreements and understandings (whether written or oral) between the Partnership Parties and the Initial Purchasers, or any of them, with respect to the subject matter hereof.
16.
Applicable Law
. This Agreement will be governed by and construed in accordance with the laws of the State of New York.
17.
Waiver of Jury Trial
. Each of the Partnership Parties hereby irrevocably waives, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
32
18.
No Fiduciary Duty
. The Partnership Parties hereby acknowledge that (a) the
purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Partnership, on the one hand, and the Initial Purchasers and any Affiliate through which it may be acting, on the other,
(b) the Initial Purchasers are acting as principal and not as an agent or fiduciary of the Partnership and (c) the Partnership’s engagement of the Initial Purchasers in connection with the offering and the process leading up to the
offering is as independent contractors and not in any other capacity. Furthermore, the Partnership agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether any of the Initial
Purchasers has advised or is currently advising the Partnership on related or other matters). The Partnership Parties agree that they will not claim that the Initial Purchasers have rendered advisory services of any nature or respect, or owe an
agency, fiduciary or similar duty to the Partnership Parties, in connection with such transaction or the process leading thereto.
19.
Counterparts
. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
20.
Headings
. The section headings used herein are for convenience only and shall not affect the construction hereof.
21.
Definitions
. The terms that follow, when used in this Agreement, shall have the meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission
promulgated thereunder.
“Affiliate” shall have the meaning specified in Rule 501(b) of
Regulation D.
“Agreement” shall mean this Purchase Agreement.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking
institutions or trust companies are authorized or obligated by law to close in The City of New York.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Preliminary Memorandum, as amended or supplemented at the Execution
Time, (ii) the final term sheet prepared pursuant to Section 5(b) hereto and in the form attached as Schedule III hereto and (iii) any Issuer Written Information.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the
Commission promulgated thereunder.
33
“Execution Time” shall mean the date and time that this Agreement
is executed and delivered by the parties hereto.
“FINRA” shall mean the Financial Industry
Regulatory Authority, Inc.
“Investment Company Act” shall mean the Investment Company Act of 1940,
as amended, and the rules and regulations of the Commission promulgated thereunder.
“Issuer Written
Information” shall mean any writings in addition to the Preliminary Memorandum that the parties expressly agree in writing to treat as part of the Disclosure Package.
“Regulation D” shall mean Regulation D under the Act.
“Regulation S” shall mean Regulation S under the Act.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations of
the Commission promulgated thereunder.
[
Signature page follows
]
34
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Partnership Parties and the several Initial Purchasers.
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Very truly yours,
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GS Pipeline Company, LLC
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By:
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/s/ Jamie L. Buskill
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Name:
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Jamie L. Buskill
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Title:
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Chief Financial Officer
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Gulf South Pipeline Company, LP
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By:
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GS Pipeline Company, LLC, its general partner
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By:
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/s/ Jamie L. Buskill
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Name:
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Jamie L. Buskill
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Title:
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Chief Financial Officer
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Signature Page to Purchase
Agreement
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The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
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Barclays Capital Inc.
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By:
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/s/ Robert Stowe
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Name:
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Robert Stowe
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Title:
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Managing Director
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J.P. Morgan Securities LLC
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By:
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/s/ Robert Bottamedi
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Name:
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Robert Bottamedi
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Title:
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Vice President
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For themselves and the other several Initial Purchasers named in Schedule I to the foregoing Agreement.
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Signature Page to Purchase
Agreement
SCHEDULE I
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Initial Purchasers
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Principal Amount of
Securities to be
Purchased
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Barclays Capital Inc.
|
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$
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75,000,000
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J.P. Morgan Securities LLC
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75,000,000
|
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Citigroup Global Markets Inc.
|
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57,000,000
|
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Deutsche Bank Securities Inc.
|
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|
57,000,000
|
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Mitsubishi UFJ Securities (USA), Inc.
|
|
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12,000,000
|
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RBC Capital Markets, LLC
|
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12,000,000
|
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Wells Fargo Securities, LLC
|
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12,000,000
|
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Total
|
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$
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300,000,000
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I-1
SCHEDULE II
JURISDICTIONS OF QUALIFICATION
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Name of Entity
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Jurisdiction of
Formation
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Jurisdictions of
Qualification
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GS Pipeline Company, LLC
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Delaware
|
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Alabama, Florida, Louisiana, Mississippi, Texas
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Gulf South Pipeline Company, LP
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Delaware
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Alabama, Florida, Kansas, Louisiana, Mississippi, Texas
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II-1
SCHEDULE III
Pricing Term Sheet
June 7, 2012
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ISSUER: Gulf South Pipeline Company, LP
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RATINGS*: Baa1 / BBB / BBB+
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SECURITY: 4.000% Senior Notes due 2022
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PRINCIPAL AMOUNT: $300,000,000
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TRADE DATE: June 7, 2012
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EXPECTED SETTLEMENT DATE: June 12, 2012
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MATURITY DATE: June 15, 2022
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ISSUE PRICE: 99.641%
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COUPON: 4.000%
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INTEREST PAYMENT DATES: Semi-annually on June 15 and December 15, commencing on December 15, 2012
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SPREAD TO BENCHMARK TREASURY: +240 bps
|
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BENCHMARK TREASURY: 1.750% due May 15, 2022
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BENCHMARK TREASURY YIELD: 1.644%
|
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RE-OFFER YIELD: 4.044%
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MAKE-WHOLE CALL: T+37.5 bps
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OPTIONAL REDEMPTION: The notes may be redeemed at the issuer’s option, in whole or from time to time in part, before the
date that is 90 days prior to the maturity date, at the make-whole redemption price. At any time on or after the date that is 90 days prior to the maturity date, the notes may be redeemed at the issuer’s option, in whole or from time to time in
part, at par plus accrued interest to the date of redemption.
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CUSIP/ISIN (144A): 402524 AD4 / US402524AD42
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CUSIP/ISIN (Reg S): U4034C AD4 / USU4034CAD49
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JOINT BOOK-RUNNING MANAGERS: Barclays Capital Inc., J.P. Morgan Securities LLC, Citigroup Global Markets Inc., Deutsche Bank
Securities Inc.
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CO-MANAGERS: Mitsubishi UFJ Securities (USA), Inc., RBC Capital Markets, LLC, Wells Fargo Securities, LLC
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*
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Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
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All information (including financial information) presented in the Preliminary Offering Memorandum is deemed to have changed to the extent affected by
the changes described herein.
This material is strictly confidential and is for your information only and is not intended to be used
by anyone other than you. This material is personal to each offeree and does not constitute an offer to any other person or the public generally to subscribe for or otherwise acquire the Securities. This Pricing Supplement supplements the
description of the Securities and the offering in the Preliminary Offering Memorandum and does not purport to be complete. Please refer to the Preliminary Offering Memorandum for a more complete description.
This communication is not intended to be a confirmation as required under Rule 10b-10 of the Securities Exchange Act of 1934, as amended. A formal
confirmation will be delivered to you
III-1
separately. This communication shall not constitute an offer to sell or a solicitation of an offer to buy, nor shall there be any sale of the Securities in any state or jurisdiction in which such
offer, solicitation or sale would be unlawful. The Securities have not been registered under the Securities Act or any state securities laws, and may not be offered or sold in the United States or to, or for the account or benefit of, U.S. persons
absent registration or an applicable exemption from the registration requirement.
The Notes have not been registered under the U.S.
Securities Act of 1933 and are being offered only to qualified institutional buyers under Rule 144A and outside the United States in compliance with Regulation S with registration rights as set forth in the Preliminary Offering Memorandum.
You may obtain a copy of the Preliminary Offering Memorandum and Final Offering Memorandum (when available) for this transaction by
calling your Barclays, J.P. Morgan, Citigroup or Deutsche Bank Securities sales representative.
Any disclaimers or other notices that
may appear below the text of this legend are not applicable to this Pricing Supplement and should be disregarded. Such disclaimers or other notices may have been automatically generated as a result of this Pricing Supplement being sent via, or
posted on, Bloomberg email or another electronic communication system.
III-2
Exhibit 4.1
Execution Copy
GULF SOUTH PIPELINE COMPANY, LP
$300,000,000
4.000% NOTES DUE 2022
INDENTURE
Dated as of June 12, 2012
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
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TABLE OF CONTENTS
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ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE
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1
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Section 1.1
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Definitions
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1
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Section 1.2
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Other Definitions
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9
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Section 1.3
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Incorporation by Reference of Trust Indenture Act
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9
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Section 1.4
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Rules of Construction
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10
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ARTICLE TWO NOTES
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10
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Section 2.1
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Form and Dating
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10
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Section 2.2
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Execution and Authentication
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12
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Section 2.3
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Registrar and Paying Agent
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12
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Section 2.4
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Paying Agent to Hold Money in Trust
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13
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Section 2.5
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Holder Lists
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13
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Section 2.6
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Transfer and Exchange
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13
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Section 2.7
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Replacement Notes
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27
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Section 2.8
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Outstanding Notes
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27
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Section 2.9
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[Reserved]
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28
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Section 2.10
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Temporary Notes
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28
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Section 2.11
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Cancellation
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28
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Section 2.12
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Defaulted Interest
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28
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Section 2.13
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CUSIP or ISIN Numbers
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29
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Section 2.14
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Issuance of Additional Notes
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29
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Section 2.15
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Record Date
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30
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Section 2.16
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Place of Payment
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30
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Section 2.17
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Registration Rights Agreement
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30
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Section 2.18
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References to Interest
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30
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ARTICLE THREE COVENANTS OF THE ISSUER
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30
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Section 3.1
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Payment of Principal and Interest
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30
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Section 3.2
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Appointment to Fill a Vacancy in Office of Trustee
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30
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Section 3.3
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Written Statements to Trustee
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31
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Section 3.4
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Limitations upon Liens
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31
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Section 3.5
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Limitation on Sale and Leaseback Transactions
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34
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Section 3.6
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Holders Lists
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35
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Section 3.7
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Reports by the Issuer
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35
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Section 3.8
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Reports by the Trustee
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35
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ARTICLE FOUR DEFAULTS AND REMEDIES
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36
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Section 4.1
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Event of Default Defined, Acceleration of Maturity, Waiver of Default
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36
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Section 4.2
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Collection of Indebtedness by Trustee; Trustee May Prove Debt
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38
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Section 4.3
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Application of Proceeds
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39
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Section 4.4
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Suits for Enforcement
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40
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Section 4.5
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Restoration of Rights on Abandonment of Proceedings
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40
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Section 4.6
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Limitations on Suits by Holders
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41
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Section 4.7
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Unconditional Right of Holders to Institute Certain Suits
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41
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Section 4.8
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Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default
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41
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Section 4.9
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Control by Holders of Notes
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42
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Section 4.10
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Waiver of Past Defaults
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42
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Section 4.11
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Trustee to Give Notice of Default, But May Withhold in Certain Circumstances
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43
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Section 4.12
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Right of Court to Require Filing of Undertaking to Pay Costs
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43
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ARTICLE FIVE CONCERNING THE TRUSTEE
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43
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Section 5.1
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Duties and Responsibilities of the Trustee; During Default; Prior to Default
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43
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Section 5.2
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Certain Rights of Trustee
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44
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Section 5.3
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Trustee Not Responsible for Recitals Disposition of Notes or Applications of Proceeds Thereof
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46
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Section 5.4
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Trustee and Agents May Hold Notes, Collections etc
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46
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Section 5.5
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Moneys Held by Trustee
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46
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Section 5.6
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Compensation and Indemnification of Trustee and Its Prior Claim
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46
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Section 5.7
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Right of Trustee to Rely on Officers’ Certificate
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47
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Section 5.8
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Persons Eligible for Appointment as Trustee
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47
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Section 5.9
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Resignation and Removal; Appointment of Successor Trustee
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48
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Section 5.10
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Acceptance and Appointment of Successor Trustee
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49
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Section 5.11
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Merger, Conversion, Consolidation or Succession to Business of Trustee
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49
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Section 5.12
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Appointment of Authenticating Agent
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50
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ARTICLE SIX CONCERNING THE HOLDERS
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51
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Section 6.1
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Evidence of Action Taken by Holders
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51
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Section 6.2
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Proof of Execution of Instruments and of Holding of Notes
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51
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Section 6.3
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Holders to be Treated as Owners
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52
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Section 6.4
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Notes Owned by Issuer Deemed Not Outstanding
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52
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Section 6.5
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Right of Revocation of Action Taken
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53
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ARTICLE SEVEN AMENDMENTS
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53
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Section 7.1
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Amendments and Supplements Without Consent of Holders
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53
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Section 7.2
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Amendments and Supplements With Consent of Holders
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54
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Section 7.3
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Effect of Amendment or Supplement to this Indenture
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55
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Section 7.4
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Documents to Be Given to Trustee
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55
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Section 7.5
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Notation on Notes in Respect of Amendments and Supplements
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56
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ARTICLE EIGHT SUCCESSORS
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56
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Section 8.1
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Merger, Consolidation or Sale of Assets of the Issuer
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56
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Section 8.2
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Successor Person Substituted
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56
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ARTICLE NINE SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
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57
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Section 9.1
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Satisfaction and Discharge of Indenture
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57
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Section 9.2
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Application by Trustee of Funds Deposited for Payment of Notes
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60
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Section 9.3
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Repayment of Moneys Held by Paying Agent
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60
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Section 9.4
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Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years
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60
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Section 9.5
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Indemnity for U.S. Government Obligations
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61
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Section 9.6
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Excess Funds
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61
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ARTICLE TEN MISCELLANEOUS PROVISIONS
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61
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Section 10.1
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Incorporators, Sponsors, Members, Partners, Holders of Equity Interests, Officers and Directors of Issuer Exempt from Individual Liability
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61
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Section 10.2
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Provisions of Indenture for the Sole Benefit of Parties and Holders of Notes
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62
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Section 10.3
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Successors and Assigns of Issuer Bound by Indenture
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62
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Section 10.4
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Notices and Demands on Issuer, Trustee and Holders of Notes
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62
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Section 10.5
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Officers’ Certificates and Opinions of Counsel; Statements to Be Contained Therein
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63
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Section 10.6
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Payments Due on Saturdays, Sundays and Holidays
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64
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Section 10.7
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Conflict of Any Provision of Indenture with Trust Indenture Act of 1939
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64
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Section 10.8
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New York Law to Govern; Submission to Jurisdiction
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64
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Section 10.9
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Counterparts
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65
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Section 10.10
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Effect of Headings
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65
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Section 10.11
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Waiver of Jury Trial
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65
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Section 10.12
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Force Majeure
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65
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ARTICLE ELEVEN REDEMPTION AND PREPAYMENT
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65
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Section 11.1
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Notices to Trustee
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65
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Section 11.2
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Selection of Notes to Be Redeemed
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65
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Section 11.3
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Notice of Redemption
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66
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Section 11.4
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Effect of Notice of Redemption
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67
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Section 11.5
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Deposit of Redemption Price
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67
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Section 11.6
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Notes Redeemed in Part
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67
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Section 11.7
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Optional Redemption
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68
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Section 11.8
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No Mandatory Redemption
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68
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This INDENTURE, dated as of June 12, 2012, is entered into between Gulf South Pipeline
Company, LP, a Delaware limited partnership (the “Issuer”), and The Bank of New York Mellon Trust Company, N.A., a national banking association, as Trustee (the “Trustee”).
The Issuer and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the
4.000% Notes due 2022 (the “Notes”):
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1
Definitions.
For all
purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
“
144A
Global Note
” means a Global Note in the form of Exhibit A-1 hereto bearing the Global Note Legend and the Private Placement Legend and deposited with and registered in the name of the Depositary or its nominee that shall be issued in a
denomination equal to the Outstanding principal amount of the Notes sold for initial resale in reliance on Rule 144A.
“
Additional Interest
” means all additional interest then owing pursuant to the Registration Rights Agreement.
“
Additional Notes
” means any Notes (other than Initial Notes and Notes issued under Sections 2.6, 2.7 and
2.10 hereof) issued under this Indenture in accordance with Sections 2.2 and 2.14 hereof, as part of the same series as the Initial Notes.
“
Affiliate
” of any specified Person means any other Person directly or indirectly controlling, controlled by or under direct or indirect common control with the specified Person. For
purposes of this definition, “control,” including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with,” as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of the Person, whether through the ownership of voting securities, by agreement or otherwise.
“
Agent
” means any Registrar, co-registrar, Paying Agent or additional paying agent.
“
Applicable Procedures
” means, with respect to any transfer, redemption or exchange of or for beneficial interests in
any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer, redemption or exchange.
“
Attributable Debt
” means, with respect to any Sale and Lease-Back Transaction as of any particular time, the present value discounted at a rate of interest implicit in the terms of the
lease of the obligations of the lessee under such lease for net rental payments during the remaining term of the lease (including any period for which such lease has been extended or may, at the option of the lessee, be extended).
“
Authenticating Agent
” shall have the meaning set forth in
Section 5.12.
“
Bankruptcy Law
” means Title 11, U.S. Code or any similar federal or state law for the
relief of debtors, or the law of any other jurisdiction relating to bankruptcy, insolvency, winding up, liquidation, reorganization or relief of debtors.
“
Board of Directors
” means either the Board of Directors of the general partner of the Issuer or any committee of such Board duly authorized to act on its behalf.
“
Board Resolution
” means a copy of one or more resolutions, certified by the secretary or an assistant secretary of the
general partner of the Issuer to have been duly adopted or consented to by the Board of Directors and to be in full force and effect, and delivered to the Trustee.
“
Broker-Dealer
” means any broker or dealer registered under the Exchange Act.
“
Business Day
” means, with respect to any Note, a day that in New York City is not a day on which banking institutions are authorized or required by law or regulation to close.
“
Capital Lease Obligation
” means, at the time any determination of the obligation is to be made, the amount
of the liability in respect of a capital lease that would at the time be so required to be capitalized on the balance sheet in accordance with GAAP.
“
Clearstream
” means Clearstream Banking S.A. and any successor thereto.
“
Code
” means the U.S. Internal Revenue Code of 1986, as amended.
“
Commission
” means the Securities and Exchange Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing
such duties on such date.
“
Comparable Treasury Issue
” means the United States Treasury security selected by
an Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of such Notes.
“
Comparable Treasury
Price
” means, with respect to any redemption date, (i) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if
the Issuer obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such Quotations.
“
Consolidated Funded Indebtedness
” means the aggregate of all Outstanding Funded Indebtedness of the Issuer and its
consolidated Subsidiaries, determined on a consolidated basis in accordance with generally accepted accounting principles.
2
“
Consolidated Net Tangible Assets
” means the total assets appearing on a
consolidated balance sheet of a Person and its consolidated Subsidiaries less, in general: (1) intangible assets; (2) current and accrued liabilities (other than Consolidated Funded Indebtedness and capitalized rentals or leases), deferred
credits, deferred gains and deferred income; and (3) reserves.
“
Corporate Trust Office of the Trustee
”
means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the dated hereof is located at 2 N. LaSalle Street, Suite 1020, Chicago, Illinois 60602 Attention: Corporate Trust
Administration, or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuer, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may
designate from time to time by notice to the Holders and the Issuer).
“
Custodian
” means, with respect to the
Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.3(c) hereof as Custodian with respect to the Notes, and any and all successors thereto appointed as custodian hereunder and having become such
pursuant to the applicable provisions of this Indenture.
“
Default
” means with respect to the Notes, any
event that is, or with the passage of time or the giving of notice or both would be, an Event of Default with respect to the Notes.
“
Definitive Note
” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.6 or 2.10 hereof, in substantially the form of
Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.
“
Depositary
” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person
specified in Section 2.3(b) hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provisions of this Indenture.
“
Distribution Compliance Period
” means the 40-day distribution compliance period as defined in Regulation S.
“
Dollar
” means the coin or currency of the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
“
Euroclear
” means Euroclear Bank, S.A./N.V., as operator of the
Euroclear systems, and any successors thereto.
“
Event of Default
” means any event or condition specified as
such in Section 4.1.
“
Exchange Act
” means the U.S. Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder, including any successor legislation and rules and regulations.
3
“
Exchange Notes
” means the Notes issued in the Exchange Offer pursuant to
Section 2.6(f) hereof.
“
Exchange Offer
” has the meaning set forth in the Registration Rights Agreement.
“
Exchange Offer Registration Statement
” has the meaning set forth in the Registration Rights Agreement.
“
Funded Indebtedness
” means any Indebtedness that matures more than one year after the date as of which
Funded Indebtedness is being determined less any such Indebtedness as will be retired through or by means of any deposit or payment required to be made within one year from such date under any prepayment provision, sinking fund, purchase fund, or
otherwise.
“
GAAP
” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in other statements by another entity as have been approved
by a significant segment of the accounting profession, as in effect from time to time; provided, however, that any change in GAAP that would cause the Issuer to record an existing item as a liability upon its balance sheet, which item was not
previously required by GAAP to be so recorded, shall not constitute an incurrence of Indebtedness for purposes hereof.
“
Global Note Legend
” means the legend set forth in Section 2.6(g)(ii) hereof, which is required to be placed on all
Global Notes issued under this Indenture.
“
Global Notes
” means the global Notes in the form of Exhibit A
hereto issued in accordance with Article 2 hereof.
“
Government Notes
” means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which obligations or guarantee the full faith and credit of the United States of America is pledged.
“
Holder
” means, in general, a Person in whose name the Notes are registered, or, if not registered, the bearer thereof.
“
Indebtedness
” means indebtedness which is for money borrowed from others.
“
Indenture
” means this instrument as originally executed and delivered or, if amended or supplemented as herein
provided, as so amended or supplemented or both, and shall include the forms and terms of particular series of Notes established as contemplated hereunder.
“
Independent Investment Banker
” means one of the Reference Treasury Dealers appointed by the Issuer.
“
Indirect Participant
” means a Person who holds a beneficial interest in a Global Note through a Participant.
4
“
Initial Notes
” means $300 million aggregate principal amount of Notes
issued under this Indenture on the date hereof.
“
Initial Purchasers
” means Barclays Capital Inc., J.P.
Morgan Securities LLC, Citigroup Global Markets Inc., Deutsche Bank Securities Inc., Mitsubishi UFJ Securities (USA), Inc., RBC Capital Markets, LLC and Wells Fargo Securities, LLC.
“
Interest Payment Dates
” shall have the meaning set forth in paragraph 1 of each Note.
“
Issue Date
” means June 12, 2012.
“
Issue Order
” means a written statement, request or order on behalf of the Issuer signed in its name by the Chairman of the Board, the President or Vice President, a Secretary or a
Treasurer of the general partner of the Issuer.
“
Letter of Transmittal
” means the letter of transmittal to
be prepared by the Issuer and sent to all Holders of the Notes for use by such Holders in connection with the Exchange Offer.
“
Obligations
” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
“
Officer
” means the Chief Executive
Officer, the President, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Secretary or any Vice President of the general partner of the Issuer.
“
Officers’ Certificate
” means a certificate signed by the Chairman of the Board, the President or a Vice President, and by the Chief Financial Officer, Controller, Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the general partner of the Issuer and delivered to the Trustee. Each such certificate shall comply with § 314 of the Trust Indenture Act of 1939 and include the statements provided
for in Section 10.5, if applicable.
“
Opinion of Counsel
” means an opinion, reasonably acceptable to the
Trustee, in writing signed by legal counsel who may be an employee of or counsel to the Issuer. Each such opinion shall comply with § 314 of the Trust Indenture Act of 1939 and include the statements provided for in Section 10.5, if
applicable.
“
Outstanding
” when used with reference to Notes, shall, subject to the provisions of
Section 6.4, mean, as of any particular time, all Notes authenticated and delivered by the Trustee under this Indenture, except
(a) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Notes, or portions thereof, for the payment or redemption of which moneys or U.S. Government Obligations (as provided for in Section 9.1) in the necessary
5
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have been set aside, segregated and held in trust by the Issuer for the
Holders of such Notes (if the Issuer shall act as its own paying agent), provided that if such Notes, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such notice; and
(c) Notes which shall have been paid
or in substitution for which other Notes shall have been authenticated and delivered pursuant to the terms of Section 2.7 (except with respect to any such Note as to which proof satisfactory to the Trustee is presented that such Note is held by
a Person in whose hands such Note is a legal, valid and binding obligation of the Issuer).
“
Participant
”
means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively, and, with respect to DTC, shall include Euroclear and Clearstream.
“
Person
” means any individual, corporation, company (including any limited liability company), association, partnership,
joint venture, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“
Predecessor Note
” of any particular Note means every previous Note evidencing all or a portion of the same Indebtedness as that evidenced by such particular Note; and any Note
authenticated and delivered under Section 2.7 in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same Indebtedness as the lost, destroyed or stolen Note.
“
Principal Property
” means any natural gas pipeline, gathering or storage property or facility, or natural gas
processing plant located in the United States, except any such property that in the opinion of the Board of Directors is not of material importance to the total business conducted by the Issuer and its consolidated Subsidiaries; provided, however,
that “Principal Property” shall not include production and proceeds from production from gas processing plants or oil or natural gas or petroleum products in any pipeline or storage field.
“
Private Placement Legend
” means the legend set forth in Section 2.6(g)(i) hereof to be placed on all Notes issued
under this Indenture except as otherwise permitted by the provisions of this Indenture.
“
QIB
” means a
“qualified institutional buyer” as deemed in Rule 144A.
“
Reference Treasury Dealer
” means each of
Barclays Capital Inc. and J.P. Morgan Securities LLC. If any of the Reference Treasury Dealers resigns, the successor dealer shall be a primary U.S. Government securities dealer in New York City selected by the Issuer.
“
Reference Treasury Dealer Quotations
” means, with respect to each Reference Treasury Dealer and any redemption date,
the average, as determined by the Issuer, of the bid and ask prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Issuer by such Reference Treasury Dealer at 5:00 p.m. on
the third business day preceding such redemption date.
6
“
Registration Rights Agreement
” means (a) with respect to the Notes
issued on the Issue Date, the Registration Rights Agreement, dated the Issue Date, among the Issuer and the Initial Purchasers and (2) with respect to any Additional Notes, any registration rights agreement between the Issuer and the other
parties thereto relating to the registration by the Issuer of such Additional Notes under the Securities Act.
“
Regular Record Date
” for the interest payable on any Interest Payment Date means the applicable date specified as a
“Record Date” on the face of the Note.
“
Regulation S
” means Regulation S promulgated under the
Securities Act.
“Regulation S Global Note”
means a Regulation S Temporary Global Note or Regulation S
Permanent Global Note, as appropriate.
“
Regulation S Permanent Global Note
” means a Global Note in the form
of Exhibit A-1 hereto bearing the Global Note Legend and the Private Placement Legend and deposited with and registered in the name of the Depositary or its nominee that shall be issued in a denomination equal to the Outstanding principal amount of
the Regulation S Temporary Global Note upon expiration of the Distribution Compliance Period.
“Regulation S Temporary
Global Note”
means a temporary Global Note in the form of Exhibit A-2 hereto deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of
the Notes initially sold in reliance on Rule 903 of Regulation S.
“
Reporting Failure
” means our failure to
file with the Trustee (a) within 90 days after the end of each fiscal year, audited balance sheets as of the end of the two most recent fiscal years and audited statements of income and cash flows for each of the three fiscal years preceding
the date of the most recent audited balance sheet or (b) within 60 days of the end of each of the first three fiscal quarters, unaudited interim balance sheets as of the end of the most recent fiscal quarter and unaudited interim statements of
income and cash flows for the period between the latest audited balance sheet and the most recent interim balance sheet provided, and for the corresponding period of the preceding fiscal year.
“
Responsible Officer
,” when used with respect to the Trustee, means any officer within the Corporate Trust Department of
the Trustee (or any successor group of the Trustee) with direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of
his or her knowledge of and familiarity with the particular subject.
“
Restricted Definitive Note
” means one
or more Definitive Notes bearing the Private Placement Legend.
“
Restricted Global Notes
” means 144A Global
Notes and Regulation S Global Notes.
“
Rule 144
” means Rule 144 promulgated under the Securities Act.
“
Rule 144A
” means Rule 144A promulgated under the Securities Act.
7
“
Rule 903
” means Rule 903 promulgated under the Securities Act.
“
Rule 904
” means Rule 904 promulgated under the Securities Act.
“
Securities Act
” means the U.S. Securities Act of 1933, as amended, and the rules and regulations thereunder, including
any successor legislation and rules and regulations.
“
Shelf Registration Statement
” has the meaning set
forth in the Registration Rights Agreement.
“
Significant Subsidiary
” means any Subsidiary that would be a
“significant subsidiary” of the Issuer within the meaning of Rule 1-02 under Regulation S-X promulgated by the Commission.
“
Stated Maturity
” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which such payment of interest or principal was scheduled to
be paid in the original documentation governing such Indebtedness, and shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
“
Subsidiary
” means, in respect of any Person, any corporation, company (including any limited liability
company), association, partnership, joint venture or other business entity of which at least a majority of the outstanding equity interests having ordinary voting power is at the time owned or controlled, directly or indirectly, by: (a) such
Person; (b) such Person and one or more Subsidiaries of such Person, or (c) one or more Subsidiaries of such Person.
“
Tax
” means any tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and any
other liabilities related thereto).
“
Trust Indenture Act of 1939
” means the U.S. Trust Indenture Act of
1939, as amended, and the rules and regulations thereunder, including any successor legislation and rules and regulations.
“
Treasury Rate
” means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent Yield
to Maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
“
Trustee
” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor
Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.
“
Unrestricted Definitive Notes
” means one or more Definitive Notes that do not and are not required to bear the Private Placement Legend.
8
“
Unrestricted Global Notes
” means one or more Global Notes that do not and
are not required to bear the Private Placement Legend and are deposited with and registered in the name of the Depositary or its nominee.
“
U.S. Government Obligations
” shall have the meaning set forth in Section 9.1(a).
“
Yield to Maturity
” means the yield to maturity on the Notes, calculated at the time of issuance of the Notes, and calculated in accordance with accepted financial practice.
Section 1.2
Other Definitions.
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Term
|
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Defined in Section
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“Authentication Order”
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2.2(d)
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“Issuer”
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Preamble
|
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“covenant defeasance”
|
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9.1
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“DTC”
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2.3(b)
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“Event of Default”
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4.1
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“lien”
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3.4
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“mortgage”
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3.4
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“Notes”
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Preamble
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“Paying Agent”
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2.3(a)
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“Registrar”
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2.3(a)
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“Security Register”
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11.3
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Section 1.3
Incorporation by Reference of Trust Indenture Act.
(a) Whenever this Indenture refers to a provision of the Trust Indenture Act of 1939, the provision is incorporated by reference in and
made a part of this Indenture.
(b) The following Trust Indenture Act of 1939 terms used in this Indenture have the following
meanings:
“
indenture securities
” means the Notes;
“
indenture security holder
” means a Holder of a Note;
“
indenture to be qualified
” means this Indenture;
“
indenture trustee
” or “
institutional trustee
” means the Trustee; and
“
obligor
” on the Notes means the Issuer and any successor obligor upon the Notes.
(c) All other terms used in this Indenture that are defined by the Trust Indenture Act of 1939, defined by Trust Indenture Act of 1939
reference to another statute or defined by Commission rule under the Trust Indenture Act of 1939 and not otherwise defined herein have the meanings so assigned to them either in the Trust Indenture Act of 1939, by another statute or Commission rule,
as applicable.
9
Section 1.4
Rules of Construction.
(a) Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting
term not otherwise defined herein has the meaning assigned to it in accordance with GAAP;
(iii) “or”
is not exclusive;
(iv) words in the singular include the plural, and in the plural include the singular;
(v) all references in this instrument to “Articles,” “Sections” and other subdivisions are
to the designated Articles, Sections and subdivisions of this instrument as originally executed;
(vi) the
words “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
(vii) “including” means “including without limitation;”
(viii) provisions apply to successive events and transactions; and
(ix) references to sections of or rules under the Securities Act, the Exchange Act or the Trust Indenture Act of 1939
shall be deemed to include substitute, replacement or successor sections or rules adopted by the Commission from time to time thereunder.
ARTICLE TWO
NOTES
Section 2.1
Form and Dating.
(a)
General.
The Notes and the Trustee’s certificate of authentication shall be substantially in the form
included in Exhibit A hereto, which is hereby incorporated in and expressly made part of this Indenture. The Notes may have notations, legends or endorsements required by law, exchange rule or usage in addition to those set forth on Exhibit A. Each
Note shall be dated the date of its authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The terms and provisions contained in the Notes shall constitute a part of this Indenture, and the
Issuer and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. To the extent any provision of any Note conflicts with the express provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling.
10
(b)
Global Notes
. Notes shall be issued initially in global form and shall be
substantially in the form of Exhibits A-1 or A-2 attached hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form shall be
substantially in the form of Exhibit A attached hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note shall represent such aggregate
principal amount of the Outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of Outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of
Outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions and transfers of interests therein. Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of Outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by
Section 2.6 hereof.
(c)
Temporary Global Notes.
Notes offered and sold in reliance on Regulation S will be issued
initially in the form of the Regulation S Temporary Global Note, which will be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, at its New York office, as Custodian for the Depositary, and registered in the
name of the Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. The Distribution
Compliance Period will be terminated upon the receipt by the Trustee of:
(1) a written certificate from the
Depositary, together with copies of certificates from Euroclear and Clearstream certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of the Regulation S Temporary Global
Note (except to the extent of any beneficial owners thereof who acquired an interest therein during the Distribution Compliance Period pursuant to another exemption from registration under the Securities Act and who will take delivery of a
beneficial ownership interest in a 144A Global Note bearing a Private Placement Legend, all as contemplated by Section 2.6(b) hereof); and
(2) an Officers’ Certificate.
Following the termination of
the Distribution Compliance Period, beneficial interests in the Regulation S Temporary Global Note will be exchanged for beneficial interests in the Regulation S Permanent Global Note pursuant to the Applicable Procedures. Simultaneously with the
authentication of the Regulation S Permanent Global Note, the Trustee will cancel the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Note may from
time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee, as the case may be, in connection with transfers of interest as hereinafter provided.
11
(d)
Book-Entry Provisions
. This Section 2.1(d) shall apply only to Global Notes
deposited with the Trustee, as Custodian for the Depositary. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or impair, as between the Depositary and its Participants or Indirect Participants, the Applicable Procedures or the operation of customary practices of the Depositary governing the exercise of the
rights of a holder of a beneficial interest in any Global Note.
(e)
Euroclear and Clearstream Procedures Applicable
.
The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream” and “Customer Handbook” of
Clearstream shall be applicable to transfers of beneficial interests in Global Notes that are held by Participants through Euroclear or Clearstream.
Section 2.2
Execution and Authentication.
(a) One Officer shall execute the Notes on behalf of the Issuer by manual or facsimile signature.
(b) If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated by the Trustee, the Note
shall nevertheless be valid.
(c) A Note shall not be valid until authenticated by the manual signature of the Trustee. The
signature shall be conclusive evidence that the Note has been authenticated under this Indenture. The form of Trustee’s certificate of authentication to be borne by the Note shall be substantially as set forth in Exhibit A hereto.
(d) The Trustee shall, upon a written order of the Issuer signed by an Officer (an “Authentication Order”), authenticate Notes
for original issue.
Section 2.3
Registrar and Paying Agent.
(a) The Issuer shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange
(“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar shall keep a register of the Notes and of their transfer and exchange. The Issuer may appoint one or more
co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Issuer may enter into an appropriate agency agreement
with any Agent not party to this Indenture, which may incorporate the provisions of the Trust Indenture Act of 1939. Such Agreement shall implement the provisions of this Indenture that relate to such Agent. The Issuer may change any Paying Agent or
Registrar without notice to any Holder. The Issuer shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Issuer fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such and shall be entitled to appropriate compensation in accordance with Section 5.6 hereof. The Issuer or any of its Subsidiaries may act as Paying Agent or Registrar.
12
(b) The Issuer initially appoints The Depository Trust Company (“DTC”) to act as
Depositary with respect to the Global Notes.
(c) The Issuer initially appoints the Trustee to act as Registrar and Paying
Agent, agent for service of notices and demands in connection with the Global Note and to act as Custodian with respect to the Global Notes, and the Trustee hereby agrees so to initially act.
Section 2.4
Paying Agent to Hold Money in Trust.
The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent
for the payment of principal, premium, if any, or interest on the Notes, and shall notify the Trustee of any Default by the Issuer in making any such payment. While any such Default continues, the Trustee may require a Paying Agent to pay all funds
held by it relating to the Notes to the Trustee. The Issuer at any time may require a Paying Agent to pay all funds held by it relating to the Notes to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer) shall
have no further liability for such funds. If the Issuer or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all funds held by it as Paying Agent. Upon any Event of Default under
Sections 4.1(d) and (e) hereof relating to the Issuer, the Trustee shall serve as Paying Agent for the Notes.
Section 2.5
Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with Trust Indenture
Act of 1939 §312(a). If the Trustee is not the Registrar, the Issuer shall furnish or cause to be furnished to the Trustee at least three Business Days before each Interest Payment Date and at such other times as the Trustee may request in
writing, a list in such form and as of such date or such shorter time as the Trustee may allow, as the Trustee may reasonably require of the names and addresses of the Holders and the Issuer shall otherwise comply with Trust Indenture Act of 1939
§312(a).
Section 2.6
Transfer and Exchange.
(a)
Transfer and Exchange of Global Notes
. A Global Note may not be transferred as a whole except by the Depositary to a nominee of
the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. The Issuer shall exchange Global
Notes for Definitive Notes if: (1) the Issuer delivers to the Trustee a notice from the Depositary that the Depositary is unwilling or unable to continue to act as Depositary for the Global Notes or that it has ceased to be a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Issuer within 120 days after the date of such notice from the Depositary; (2) the Issuer at its option determines
13
that the Global Notes shall be exchanged for Definitive Notes and delivers a written notice to such effect to the Trustee;
provided
that in no event shall the Regulation S Temporary Global
Note be exchanged by the Issuer for Definitive Notes prior to (x) the expiration of the Distribution Compliance Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities
Act; or (3) a Default or Event of Default shall have occurred and be continuing. Upon the occurrence of any of the preceding events in clauses (1), (2) or (3) above, Definitive Notes shall be issued in denominations of $2,000 or
integral multiples of $1,000 in excess thereof and in such names as the Depositary shall instruct the Trustee in writing. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.7 and 2.10 hereof. Except as
provided above, every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.6 or Section 2.7 or 2.10 hereof, shall be authenticated and delivered in the form of,
and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.6(a), and beneficial interests in a Global Note may not be transferred and exchanged other than as provided in
Section 2.6(b), (c) or (f) hereof.
(b)
Transfer and Exchange of Beneficial Interests in the Global
Notes
. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in Restricted Global
Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in Global Notes also shall require compliance with either clause (i) or
(ii) below, as applicable, as well as one or more of the other following clauses, as applicable:
(i)
Transfer of Beneficial Interests in the Same Global Note
. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in
accordance with the transfer restrictions set forth in the Private Placement Legend and any Applicable Procedures; provided, however, that prior to the expiration of the Distribution Compliance Period, transfers of beneficial interests in the
Regulation S Temporary Global Note may not be made to or for the account or benefit of a “U.S. Person” (as defined in Rule 902(k) of Regulation S) (other than a “distributor” (as defined in Rule 902(d) of Regulation S)).
Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. Except as may be required by any Applicable Procedures, no written
orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.6(b)(i).
(ii)
All Other Transfers and Exchanges of Beneficial Interests in Global Notes
. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.6(b)(i)
above, the transferor of such beneficial interest must deliver to the Registrar either (A)(1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary
to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase or (B) if
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permitted under Section 2.6(a) hereof, (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (B)(1) above;
provided
that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in the
Regulation S Temporary Global Note prior to (A) the expiration of the Distribution Compliance Period and (B) the receipt by the Registrar of any certificates required pursuant to Rule 903 under the Securities Act. Upon completion of an
Exchange Offer by the Issuer in accordance with Section 2.6(f) hereof, the requirements of this Section 2.6(b)(ii) shall be deemed to have been satisfied upon receipt by the Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests in the Restricted Global Notes. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes
or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.6(h) hereof.
(iii)
Transfer of Beneficial Interests in a Restricted Global Note to Another Restricted Global Note
. A beneficial
interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.6(b)(ii) above
and the Registrar receives the following:
(A) if the transferee shall take delivery in the form of a
beneficial interest in a 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof or, if permitted by Applicable Procedures, item (3) thereof; and
(B) if the transferee shall take delivery in the form of a beneficial interest in a Regulation S Global Note,
then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof.
(iv)
Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note
. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the exchange or transfer
complies with the requirements of Section 2.6(b)(ii) above and:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the holder of the beneficial interest to be transferred, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Issuer;
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(B) such transfer is effected pursuant to the Shelf Registration Statement
in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following: (1) if the holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or (2) if the
holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such
holder in the form of Exhibit B hereto, including the certifications in item (4) thereof, and, in each such case, if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel to the effect that such exchange or
transfer shall be effected in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend shall no longer be required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an Unrestricted Global
Note has not yet been issued, the Issuer shall execute and, upon receipt of an Authentication Order in accordance with Section 2.2 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount
equal to the aggregate principal amount of beneficial interests transferred pursuant to subparagraph (B) or (D) above.
(v)
Transfer or Exchange of Beneficial Interests in Unrestricted Global Notes for Beneficial Interests in Restricted Global Notes Prohibited
. Beneficial interests in an Unrestricted Global Note may
not be exchanged for, or transferred to Persons who take delivery thereof in the form of, beneficial interests in a Restricted Global Note.
(c)
Transfer or Exchange of Beneficial Interests for Definitive Notes
.
(i)
Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes
. Subject to Section 2.6(a) hereof, if any holder of a beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
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(A) if the holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item (1) thereof,
(C) if such beneficial
interest is being transferred to a “non-U.S. Person” (as defined in Rule 902(k) of Regulation S) in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in accordance with Rule 144 under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to the Issuer or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof, or
(F) if such
beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item 3(c) thereof,
the Trustee shall reduce or cause to be reduced in a corresponding amount pursuant to Section 2.6(h) hereof the aggregate principal amount of the
applicable Restricted Global Note, and the Issuer shall execute and, upon receipt of an Authentication Order in accordance with Section 2.2 hereof, the Trustee shall authenticate and deliver a Restricted Definitive Note in the appropriate
principal amount to the Person designated by the holder of such beneficial interest in instructions delivered to the Registrar by the Depositary and the applicable Participant or Indirect Participant on behalf of such holder. Any Restricted
Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.6(c)(i) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such
beneficial interest shall designate in such instructions. The Trustee shall deliver such Restricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Restricted Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.6(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
(ii)
Beneficial Interests in Regulation S Temporary Global Note to Definitive Notes
.
Notwithstanding
Sections 2.6(c)(i)(A) and (C) hereof, a beneficial interest in the Regulation S Temporary Global Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to
(A) the expiration of the Distribution Compliance Period and (B)
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the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, except in the case of a transfer pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 903 or Rule 904.
(iii)
Beneficial Interests
in Restricted Global Notes to Unrestricted Definitive Notes
. Subject to Section 2.6(a) hereof, a holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may
transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the holder of the beneficial interest to be transferred, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is
an affiliate (as defined in Rule 144) of the Issuer;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by
a Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following: (1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note,
a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof, or (2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest
to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof, and, in each such case, if the
Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel to the effect that such exchange or transfer shall be effected in compliance with the Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend shall no longer be required in order to maintain compliance with the Securities Act.
Upon
satisfaction of the conditions of any of the clauses of this Section 2.6(c)(ii) the Issuer shall execute, and, upon receipt of an Authentication Order in accordance with Section 2.2 hereof, the Trustee shall authenticate and deliver an
Unrestricted Definitive Note in the appropriate principal amount to the Person designated by the holder of such beneficial interest in instructions delivered to the Registrar by the Depositary and the applicable Participant or Indirect Participant
on behalf of such holder, and the Trustee shall reduce or cause to be reduced in a corresponding amount pursuant to Section 2.6(h) hereof the aggregate principal amount of the applicable Restricted Global Note.
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(iv)
Beneficial Interests in Unrestricted Global Notes to Unrestricted
Definitive Notes
. Subject to Section 2.6(a) hereof, if any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note, then, upon satisfaction of the applicable conditions set forth in Section 2.6(b)(ii) hereof, the Trustee shall reduce or cause to be reduced in a
corresponding amount pursuant to Section 2.6(h) hereof the aggregate principal amount of the applicable Unrestricted Global Note, and the Issuer shall execute and, upon receipt of an Authentication Order in accordance with Section 2.2
hereof, the Trustee shall authenticate and deliver an Unrestricted Definitive Note in the appropriate principal amount to the Person designated by the holder of such beneficial interest in instructions delivered to the Registrar by the Depositary
and the applicable Participant or Indirect Participant on behalf of such holder. Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.6(c)(iv) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such beneficial interest shall designate in such instructions. The Trustee shall deliver such Unrestricted Definitive Notes to the Persons in whose names such Notes are so registered.
Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.6(c)(iv) shall not bear the Private Placement Legend.
(d)
Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i)
Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes
. If any holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
(A) if the holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest
in a Restricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item
(1) thereof;
(C) if such Restricted Definitive Note is being transferred to a “non-U.S. Person”
(as defined in Rule 902(k) of Regulation S) in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof,
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(D) if such Restricted Definitive Note is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to the Issuer or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof, or
(F) if such
Restrictive Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certification in item 3(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased in a corresponding amount pursuant to Section 2.6(h)
hereof the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, a 144A Global Note, and in the case of clause (C) above, a Regulation S Global Note.
(ii)
Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes
. A holder of a
Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note only if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Issuer;
(B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following: (1) if the holder of such
Restricted Definitive Note proposes to exchange such Note for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof, or
(2) if the holder of such Restricted Definitive Note proposes to transfer such Note to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof, and, in each such case, if
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the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel to the effect that such exchange or transfer shall be effected in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the Private Placement Legend shall no longer be required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses in this Section 2.6(d)(ii), the Trustee shall cancel such Restricted
Definitive Note and increase or cause to be increased in a corresponding amount pursuant to Section 2.6(h) hereof the aggregate principal amount of the Unrestricted Global Note.
(iii)
Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes
. A holder of an
Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Unrestricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased in a corresponding amount pursuant to Section 2.6(h)
hereof the aggregate principal amount of one of the Unrestricted Global Notes.
(iv)
Transfer or Exchange of
Unrestricted Definitive Notes to Beneficial Interests in Restricted Global Notes Prohibited
. An Unrestricted Definitive Note may not be exchanged for, or transferred to Persons who take delivery thereof in the form of, beneficial interests in a
Restricted Global Note.
(v)
Issuance of Unrestricted Global Notes
. If any such exchange or transfer of
a Definitive Note for a beneficial interest in an Unrestricted Global Note is effected pursuant to clause (ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.2 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.
(e)
Transfer and Exchange of Definitive Notes for Definitive Notes
. Upon request by a holder of Definitive Notes and
such holder’s compliance with the provisions of this Section 2.6(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such holder. In addition, the requesting holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.6(e).
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(i)
Restricted Definitive Notes to Restricted Definitive Notes
. Any
Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:
(A) if the transfer shall be made pursuant to Rule 144A, a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof,
(B) if the transfer shall be made pursuant to Rule 903 or Rule 904,
a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof, and
(C)
if the transfer shall be made pursuant to any other exemption from the registration requirements of the Securities Act, a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable.
(ii)
Restricted Definitive Notes to Unrestricted Definitive Notes
. Any
Restricted Definitive Note may be exchanged by the holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and the holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Issuer;
(B) such
transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following: (1) if the holder of such Restricted Definitive Notes proposes to exchange
such Notes for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof, or (2)if the holder of such Restricted Definitive Notes proposes to transfer
such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof, and, in each such case, if
the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer shall be effected in compliance with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend shall no longer be required in order to maintain compliance with the Securities Act.
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Upon satisfaction of the conditions of any of the clauses of Section 2.6(e)(ii) the
Trustee shall cancel the prior Restricted Definitive Note and the Issuer shall execute, and, upon receipt of an Authentication Order in accordance with Section 2.2 hereof, the Trustee shall authenticate and deliver an Unrestricted Definitive
Note in the appropriate principal amount to the Person designated by the holder of such prior Restricted Definitive Note in instructions delivered to the Registrar by such holder.
(iii)
Unrestricted Definitive Notes to Unrestricted Definitive Notes
. A holder of Unrestricted Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holders thereof.
(f)
Exchange Offer
. Upon the occurrence of the Exchange Offer in accordance with
the Registration Rights Agreement, the Issuer will issue and, upon receipt of an Authentication Order in accordance with Section 2.2 hereof the Trustee will authenticate:
(i) one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes accepted for exchange in the Exchange Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a distribution of
the Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the Issuer; and
(ii)
Unrestricted Definitive Notes in an aggregate principal amount equal to the principal amount of the Restricted Definitive Notes accepted for exchange in the Exchange Offer by Persons that certify in the applicable Letters of Transmittal that
(A) they are not Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the Issuers.
Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal amount of the applicable Restricted Global
Notes to be reduced accordingly, and the Issuer will execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.
(g)
Legends
. The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this
Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private
Placement Legend.
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(A) Except as permitted by clause (B) below, each Global Note and each
Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING ITS NOTE IN AN “OFFSHORE TRANSACTION” PURSUANT TO RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS ONE YEAR (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY
RULE 144(d) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF
THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE “RESALE RESTRICTION TERMINATION DATE”), OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE ISSUER,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A
INSIDE THE UNITED STATES, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE ISSUER, THE TRUSTEE AND THE REGISTRAR SHALL
HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THIS TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”
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(B) Notwithstanding the foregoing, any Global Note or Definitive Note
issued pursuant to clauses (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) to this Section 2.6 (and all Notes issued in exchange therefor or substitution thereof) shall not bear the Private Placement Legend.
(ii)
Global Note Legend
. Each Global Note shall bear a legend in substantially the following form:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS GLOBAL NOTE
MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF THE INDENTURE, (III)THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.”
(h)
Cancellation and/or Adjustment of Global Notes
. At such time as
all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or cancelled in whole and not in part, each such Global Note shall be returned to or retained
and cancelled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who shall take delivery thereof in the form of
a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary
at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a
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Person who shall take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such
Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(i)
General
Provisions Relating to Transfers and Exchanges
.
(i) No service charge shall be made to a Holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.7, 2.10, 7.5, 9.5 and 11.6 hereof).
(ii) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or
Definitive Notes shall be the valid obligations of the Issuer, evidencing the same Indebtedness, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly issued hereunder.
(iii) Neither the Registrar
nor the Issuer shall be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.2
hereof and ending at the close of business on the date of selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part or
(C) to register the transfer of or to exchange a Note between a record date (including a Regular Record Date) and the next succeeding Interest Payment Date.
(iv) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer may
deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Note and for all other purposes, in each case regardless of any notice to the
contrary.
(v) All certifications, certificates and Opinions of Counsel required to be submitted to the
Registrar pursuant to this Section 2.6 to effect a registration of transfer or exchange may be submitted by facsimile.
(vi) The Trustee is hereby authorized and directed to enter into a letter of representation with the Depositary in the form provided by the Issuer and to act in accordance with such letter.
(vii) To permit registrations of transfers and exchanges, the Issuer shall execute, and the Trustee shall authenticate,
Global Notes and Definitive Notes upon the Issuer’s order or at the Registrar’s request.
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(viii) The Registrar shall not be required to register the transfer of or
exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
(ix) The Trustee shall authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.2 hereof.
(x) Each Holder of a Note agrees to indemnify the Company and the Trustee against any liability that may result from the
transfer, exchange or assignment of such Holder’s Note in violation of any provision of this Indenture and/or applicable United States federal or state securities law.
(xi) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions
on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depositary Participants or beneficial owners of interests in any Global Note)
other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
Section 2.7
Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Issuer and the Trustee receives evidence to its satisfaction of
the destruction, loss or theft of any Note, the Issuer shall issue and the Trustee, upon receipt of an Authentication Order in accordance with Section 2.2 hereof, shall authenticate a replacement Note. If required by the Trustee or the Issuer,
the Holder of such Note shall provide indemnity sufficient, in the judgment of the Trustee or the Issuer, as applicable, to protect the Issuer, the Trustee, any Agent and any Authenticating Agent from any loss that any of them may suffer in
connection with such replacement. If required by the Issuer, such Holder shall reimburse the Issuer for its reasonable expenses in connection with such replacement.
Every replacement Note issued in accordance with this Section 2.7 shall be the valid obligation of the Issuer evidencing the same Indebtedness as the destroyed, lost or stolen Note and shall be
entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
Section 2.8
Outstanding Notes.
(a) The Notes Outstanding at any time shall be the entire principal amount of Notes represented by all the Global Notes and Definitive Notes authenticated by the Trustee except for those cancelled by it,
those delivered to it for cancellation, those subject to reductions in beneficial interests effected by the Trustee in accordance with Section 2.6 hereof, and those described in this Section 2.8 as not Outstanding. Except as set forth in
Section 2.9 hereof, a Note shall not cease to be Outstanding because the Issuer or an Affiliate of the Issuer holds the Note; provided, however, that Notes held by the Issuer or a Subsidiary of the Issuer shall be deemed not to be outstanding
for purposes of Section 2.9 or 6.4 hereof.
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(b) If a Note is replaced pursuant to Section 2.7 hereof, it shall cease to be
Outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.
(c)
If the principal amount of any Note is considered paid under Section 3.1 hereof, it shall cease to be Outstanding and interest on it shall cease to accrue.
(d) If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date, a Purchase Date or maturity date, funds sufficient to pay Notes payable on that
date, then on and after that date such Notes shall be deemed to be no longer Outstanding and shall cease to accrue interest.
Section 2.9
[Reserved].
Section 2.10
Temporary Notes.
Until
certificates representing Notes are ready for delivery, the Issuer may prepare and the Trustee, upon receipt of an Authentication Order in accordance with Section 2.2 hereof, shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of Definitive Notes but may have variations that the Issuer considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer shall prepare and the
Trustee shall authenticate Global Notes or Definitive Notes in exchange for temporary Notes, as applicable.
Holders of
temporary Notes shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
Section 2.11
Cancellation.
The Issuer
at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. Upon sole direction of the Issuer, the
Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of such cancelled Notes in accordance with its customary procedures (subject to the record
retention requirements of the Exchange Act or other applicable laws) unless the Issuer directs the Trustee in writing to be returned to them. The Issuer may not issue new Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
Section 2.12
Defaulted Interest.
If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes. The Issuer shall notify the Trustee in writing of the amount
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of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Issuer shall fix or cause to be fixed each such special record date and payment date, provided
that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Issuer (or, upon the written request of the Issuer, the Trustee in the
name and at the expense of the Issuer) shall mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.
Section 2.13
CUSIP or ISIN Numbers.
The Issuer in issuing the Notes may use “CUSIP” and/or “ISIN” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” and/or “ISIN” numbers in
notices of redemption as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption or
notice of an offer to purchase and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or offer to purchase shall not be affected by any defect in or omission of such numbers. The Issuer
shall promptly notify the Trustee of any change in the “CUSIP” and/or “ISIN” numbers.
Section 2.14
Issuance of Additional Notes.
The Issuer shall be entitled to issue Additional Notes under this Indenture which shall have identical terms as the Initial Notes issued
on the date hereof, other than with respect to the date of issuance and issue price. The Initial Notes issued on the date hereof, any Additional Notes shall be treated as a single class for all purposes under this Indenture, including without
limitation, directions, waivers, amendments, consents, redemptions and offers to purchase.
With respect to any Additional
Notes, the Issuer shall set forth in a Board Resolution and an Officers’ Certificate, a copy of each of which shall be delivered to the Trustee, the following information:
(a) the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;
(b) the issue price, the issue date and the CUSIP and/or ISIN number of such Additional Notes; provided, however, that no Additional
Notes may be issued at a price that would cause such Additional Notes to have “original issue discount” within the meaning of Section 1273 of the Code; and
(c) whether such Additional Notes shall be subject to the restrictions on transfer set forth Section 2.6 hereof relating to Restricted Global Notes and Restricted Definitive Notes.
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Section 2.15
Record Date.
The record date for purposes of determining the identity of Holders of Notes entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for in Trust Indenture Act of 1939 § 316(c).
Section 2.16
Place of Payment.
As long as any Notes are outstanding, the Issuer shall maintain an office or agency in the Borough of Manhattan, the City of New York, where Notes may be presented for payment. The office of the Paying
Agent in the Borough of Manhattan, the City of New York shall be one such office for this purpose.
Section 2.17
Registration Rights Agreement.
Holders of the Notes shall have the benefit of the Issuer’s registration obligations with respect to the Notes, and such Holders
shall also have certain obligations to indemnify the Issuer under certain circumstances, all as more fully set forth in the Registration Rights Agreement.
Section 2.18
References to Interest.
Each reference to “interest” herein shall be deemed to refer to “interest and Additional Interest, if any.”
ARTICLE THREE
COVENANTS OF THE ISSUER
Section 3.1
Payment of
Principal and Interest
The Issuer covenants and agrees for the benefit of the Holders of the Notes that it will duly
and punctually pay or cause to be paid the principal of, and interest on, each of the Notes at the place or places, at the respective times and in the manner provided in such Notes and in this Indenture. If any temporary Note provides that interest
thereon may be paid while such Note is in temporary form, the interest on any such temporary Note shall be paid, only upon presentation of such Notes for notation thereon of the payment of such interest, in each case subject to any restrictions that
may be established pursuant to Article Two. The interest on Notes (together with any additional amounts payable pursuant to the terms of such Notes) shall be payable only to or upon the written order of the Holders thereof entitled thereto and, at
the option of the Issuer, may be paid by wire transfer or by mailing checks for such interest payable to or upon the written order of such Holders at their last addresses as they appear on the registry books of the Issuer.
Section 3.2
Appointment to Fill a Vacancy in Office of Trustee.
The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in
Section 5.9, a Trustee, so that there shall at all times be a Trustee with respect to the Notes.
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Section 3.3
Written Statements to Trustee.
(a) The Issuer will furnish to the Trustee on or before January 31 in each year (beginning with January 31, 2013) a brief
certificate (which need not comply with Section 10.5) from the principal executive, financial or accounting officer of the general partner of the Issuer as to his or her knowledge of the Issuer’s compliance with all conditions and
covenants under the Indenture (such compliance to be determined without regard to any period of grace or requirement of notice provided under the Indenture).
(b) The Issuer shall furnish to the Trustee, within thirty days after the Issuer becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would
constitute an Event of Default, an Officers’ Certificate setting forth the details of such Event of Default or event and the action which the Issuer proposes to take with respect thereto
Section 3.4
Limitations upon Liens.
After the date hereof and so long as any Notes are Outstanding, the Issuer will not, and will not permit any Subsidiary to, issue, assume
or guarantee any Indebtedness secured by a mortgage, pledge, lien, security interest or encumbrance (any mortgage, pledge, lien, security interest or encumbrance being hereinafter in this Article referred to as a “mortgage” or
“mortgages” or as a “lien” or “liens”) of, or upon, any property of the Issuer or of any Subsidiary, without effectively providing that the Notes shall be equally and ratably secured with such Indebtedness; provided,
however, that the foregoing restriction shall not apply to:
(a) Any purchase money mortgage created by the Issuer or a
Subsidiary to secure all or part of the purchase price of any property (or to secure a loan made to enable the Issuer or a Subsidiary to acquire the property described in such mortgage), provided that the principal amount of the Indebtedness secured
by any such mortgage, together with all other Indebtedness secured by a mortgage on such property, shall not exceed the purchase price of the property acquired;
(b) Any mortgage existing on any property at the time of the acquisition thereof by the Issuer or a Subsidiary whether or not assumed by the Issuer or a Subsidiary, and any mortgage on any property
acquired or constructed by the Issuer or a Subsidiary and created not later than 12 months after (i) completion of such acquisition or construction or (ii) commencement of full operation of such property, whichever is later; provided that,
if assumed or created by the Issuer or a Subsidiary, the principal amount of the Indebtedness secured by such mortgage, together with all other Indebtedness secured by a mortgage on such property, shall not exceed the purchase price of the property
acquired or the cost of the property constructed;
(c) Any mortgage created or assumed by the Issuer or a Subsidiary on any
contract for the sale of any product or service or any rights thereunder or any proceeds therefrom, including accounts and other receivables, related to the operation or use of any property acquired or constructed by the Issuer or a Subsidiary and
created not later than 12 months after (i) such acquisition or completion of such construction or (ii) commencement of full operation of such property, whichever is later;
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(d) Any mortgage existing on any property of a Subsidiary at the time it becomes a
Subsidiary and any mortgage on property existing at the time of acquisition thereof,
(e) Any refunding or extension of
maturity, in whole or in part, of any mortgage created or assumed in accordance with the provisions of subdivision (a), (b), (c) or (d) above or (j), (p), or (y) below, provided that the principal amount of the Indebtedness secured by
such refunding mortgage or extended mortgage shall not exceed the principal amount of the Indebtedness secured by the mortgage to be refunded or extended outstanding at the time of such refunding or extension and that such refunding mortgage or
extended mortgage shall be limited in lien to the same property that secured the mortgage so refunded or extended;
(f) Any
mortgage created or assumed by the Issuer or a Subsidiary to secure loans to the Issuer or a Subsidiary maturing within 12 months of the date of creation thereof and not renewable or extendible by the terms thereof at the option of the obligor
beyond such 12 months, and made in the ordinary course of business;
(g) Mechanics’ or materialmen’s liens or any
lien or charge arising by reason of pledges or deposits to secure payment of workmen’s compensation or other insurance, good faith deposits in connection with tenders or leases of real estate, bids or contracts (other than contracts for the
payment of money), deposits to secure public or statutory obligations, deposits to secure or in lieu of surety, stay or appeal bonds and deposits as security for the payment of taxes or assessments or other similar charges;
(h) Any mortgage arising by reason of deposits with or the giving of any form of security to any governmental agency or any body created
or approved by law or governmental regulation for any purpose at any time as required by law or governmental regulation as a condition to the transaction of any business or the exercise of any privilege or license, or to enable the Issuer or a
Subsidiary to maintain self-insurance or to participate in any fund for liability on any insurance risks or in connection with workmen’s compensation, unemployment insurance, old age pensions or other social security or to share in the
privileges or benefits required for companies participating in such arrangements;
(i) Mortgages upon rights-of-way;
(j) Undetermined mortgages and charges incidental to construction or maintenance;
(k) The right reserved to, or vested in, any municipality or governmental or other public authority or railroad by the terms of any
right, power, franchise, grant, license, permit or by any provision of law, to terminate or to require annual or other periodic payments as a condition to the continuance of such right, power, franchise, grant, license or permit;
(l) The lien of taxes and assessments which are not at the time delinquent;
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(m) The lien of specified taxes and assessments which are delinquent but the validity of
which is being contested in good faith at the time by the Issuer or a Subsidiary;
(n) The lien reserved in leases for rent
and for compliance with the terms of the lease in the case of leasehold estates;
(o) Defects and irregularities in the titles
to any property (including rights-of-way and easements) which are not material to the business of the Issuer and its Subsidiaries considered as a whole;
(p) Any mortgages securing Indebtedness neither assumed nor guaranteed by the Issuer or a Subsidiary nor on which it customarily pays interest, existing upon real estate or rights in or relating to real
estate (including rights-of-way and easements) acquired by the Issuer or a Subsidiary, which mortgages do not materially impair the use of such property for the purposes for which it is held by the Issuer or such Subsidiary;
(q) Easements, exceptions or reservations in any property of the Issuer or a Subsidiary granted or reserved for the purpose of pipelines,
roads, telecommunication equipment and cable, streets, alleys, highways, railroad purposes, the removal of oil, gas, coal or other minerals or timber, and other like purposes, or for the joint or common use of real property, facilities and
equipment, which do not materially impair the use of such property for the purposes for which it is held by the Issuer or such Subsidiary;
(r) Rights reserved to or vested in any municipality or public authority to control or regulate any property of the Issuer or a Subsidiary, or to use such property in any manner which does not materially
impair the use of such property for the purposes for which it is held by the Issuer or such Subsidiary;
(s) Any obligations
or duties, affecting the property of the Issuer or a Subsidiary, to any municipality or public authority with respect to any franchise, grant, license or permit;
(t) The liens of any judgments in an aggregate amount not in excess of $2,000,000 or the lien of any judgment the execution of which has been stayed or which has been appealed and secured, if necessary,
by the filing of an appeal bond;
(u) Zoning laws and ordinances;
(v) Any mortgage existing on any office equipment, data processing equipment (including computer and computer peripheral equipment) or
transportation equipment (including motor vehicles, aircraft and marine vessels);
(w) Leases now or hereafter existing and
any renewals or extensions thereof;
(x) Any lien on inventory and receivables incurred in the ordinary course of business to
secure Indebtedness incurred for working capital purposes including liens incurred in connection with a sale of receivables; and
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(y) Any mortgage not permitted by clauses (a) through (x) above if at the time of,
and after giving effect to, the creation or assumption of any such mortgage, the aggregate of all Indebtedness of the Issuer and its Subsidiaries secured by all such mortgages not so permitted by clauses (a) through (x) above do not exceed
10% of Consolidated Net Tangible Assets.
In the event that the Issuer or a Subsidiary shall hereafter secure the Notes
equally and ratably with any other obligation or Indebtedness pursuant to the provisions of this Section 3.6, the Trustee is hereby authorized to enter into an indenture supplemental hereto and to take such action, if any, as it may deem
advisable to enable it to enforce effectively the rights of the Holders of the Notes so secured, equally and ratably with such other obligation or Indebtedness.
Subject to the provisions of Section 5.1, the Trustee shall be provided with an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such supplemental indenture or
steps taken to secure the Notes equally and ratably comply with the provisions of this Section.
Section 3.5
Limitation on Sale and Leaseback Transactions.
The Issuer agrees that it will not, and will not permit any Subsidiary to, enter into any arrangement with any Person providing for the
leasing by the Issuer or a Subsidiary of any Principal Property, acquired or placed into service more than 180 days prior to such arrangement (except for leases of three years or less), whereby such property has been or is to be sold or transferred
by the Issuer or any Subsidiary to such Person (herein referred to as a “Sale and Lease-Back Transaction”), unless:
(i) the Issuer or any Subsidiary would, at the time of entering into a Sale and Lease-Back Transaction, be entitled to incur Indebtedness secured by a mortgage on the property to be leased in an amount at
least equal to the Attributable Debt in respect of such transaction without equally and ratably securing the Notes pursuant to Section 3.4 hereof; or
(ii) the Issuer shall covenant that it will apply or cause to be applied an amount equal to the net proceeds from the sale of the Principal Property so leased to the retirement (other than any mandatory
retirement) of its Funded Indebtedness within 90 days of the effective date of any such Sale and Lease Back Transaction, provided that the amount to be applied to the retirement of Funded Indebtedness of the Issuer shall be reduced by (i) the
principal amount of any Notes delivered by the Issuer to the Trustee within 90 days after such Sale and Lease-Back Transaction for retirement and cancellation, and (ii) the principal amount of Funded Indebtedness, other than Notes, voluntarily
retired by the Issuer within 90 days following such Sale and Lease-Back Transaction, provided, further, that the covenant contained in this Section shall not apply to, and there shall be excluded from Attributable Debt in any computation under this
Section, Attributable Debt with respect to any Sale and Lease-Back Transaction if:
(A) such Sale and
Lease-Back Transaction is entered into in connection with transactions which are part of an industrial development or pollution control financing, or
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(B) the only parties involved in such Sale and Lease-Back Transaction are
the Issuer and any Subsidiary or any Subsidiaries.
Notwithstanding these restrictions on Sale and Lease-Back Transaction, the
Issuer and its Subsidiaries may enter into, create, assume and suffer to exist Sale and Lease-Back Transactions, not otherwise permitted hereby, if at the time of, and after giving effect to, such Sale and Lease-Back Transaction, the total
consolidated Attributable Debt of the Issuer and its Subsidiaries does not exceed 10% of Consolidated Net Tangible Assets.
Section 3.6
Holders Lists.
If and so long as the Trustee shall not be the Registrar for the Notes, the Issuer will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders of the Notes pursuant to § 312 of the Trust Indenture Act of 1939 (a) semi-annually not more than 15 days after each record date for the payment of interest on such Notes, as hereinabove specified, as of
such record date and on dates to be determined pursuant to Section 2.5 for non-interest bearing securities in each year, and (b) at such other times as the Trustee may request in writing, within thirty days after receipt by the Issuer of
any such request as of a date not more than 15 days prior to the time such information is furnished.
Section 3.7
Reports by the Issuer.
The Issuer covenants to file with the Trustee and Holders of Notes with (1) the information regarding our business required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act and
(2) within 90 days after the end of each fiscal year, audited balance sheets as of the end of the two most recent fiscal years and audited statements of income and cash flows for each of the three fiscal years preceding the date of the most
recent balance sheet, and within 60 days of the end of each of the first three fiscal quarters, unaudited, unaudited interim balance sheets as of the end of the most recent fiscal quarter and unaudited interim statements of income and cash flows for
the period between the latest audited balance sheet and the most recent interim balance sheet provided, and for the corresponding period of the preceding fiscal year.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Section 3.8
Reports by the Trustee.
Any Trustee’s report required under § 313(a) of the Trust Indenture Act of 1939 shall be transmitted on or before May 15 in each year following the date hereof, so long as any Notes are
Outstanding hereunder, and shall be dated as of a date convenient to the Trustee no more than 60 nor less than 45 days prior thereto.
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ARTICLE FOUR
DEFAULTS AND REMEDIES
Section 4.1
Event of Default
Defined, Acceleration of Maturity, Waiver of Default.
“Event of Default” wherever used herein, means each
one of the following events which shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any
installment of interest upon any of the Notes 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 all or any part of the principal on any of the Notes as and when the same shall become due and payable either at maturity, upon any redemption, by declaration or otherwise;
or
(c) default in the performance, or breach, of any covenant or warranty of the Issuer in respect of the Notes and
continuance of such default or breach for a period of 60 days (or 180 days in the case of a Reporting Failure) after there has been given, by registered or certified mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Outstanding Notes, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(d) either (1) default in payment of any Indebtedness of the Issuer or any Subsidiary of the Issuer within any applicable grace
period after final maturity or (2) the acceleration of Indebtedness of the Issuer or any Subsidiary of the Issuer by the holders thereof because of a default and, in either case, the total amount of the Indebtedness unpaid or accelerated
exceeds $25.0 million; or
(e) the entry of a decree or order by a court having jurisdiction in the premises adjudging the
Issuer or any Significant Subsidiary as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer or any Significant Subsidiary under the federal
bankruptcy law or any other applicable federal or state law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Issuer or any Significant Subsidiary or for any substantial part of its property,
or ordering the winding up or liquidation of the affairs of the Issuer or any Significant Subsidiary, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(f) the institution by the Issuer or any Significant Subsidiary of proceedings to be adjudicated as bankrupt or insolvent or the consent
by the Issuer or any Significant Subsidiary to the institution of bankruptcy or insolvency proceedings against it, or the filing by the Issuer or any Significant Subsidiary of a petition or answer or consent seeking reorganization
36
or relief under the federal bankruptcy law or any other applicable federal or state law, or the consent by the Issuer or any Significant Subsidiary to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Issuer or any Significant Subsidiary or for any substantial part of its property, or the making by the Issuer or any Significant Subsidiary of
any general assignment for the benefit of creditors;
provided, however,
that the occurrence of any of the events described in the
foregoing clause (c) shall not constitute an Event of Default if such occurrence is the result of changes in generally accepted accounting principles as recognized by the American Institute of Certified Public Accountants at the date as of
which this Indenture is executed and a certificate to such effect is delivered to the Trustee by the Issuer’s independent public accountants.
If an Event of Default described in clauses (a), (b), (c) or (d) above occurs and is continuing, then, and in each and every such case, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Notes then Outstanding hereunder, by notice in writing to the Issuer (and to the Trustee if given by the Holders), may declare the entire principal and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration, the same shall become immediately due and payable. If an Event of Default described in clause (e) or (f) occurs and is continuing, then and in each and every such case, unless the principal of
all the Notes shall have already become due and payable, the entire principal of all of the Notes then Outstanding, and interest accrued thereon, if any, will become immediately due and payable without any declaration of acceleration or other act on
the part of the Trustee or any Holders.
The foregoing provisions, however, are subject to the condition that if, at any time
after the principal of the Notes shall have been so declared due and payable or become automatically due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided,
the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all the Notes and the principal of all Notes which shall have become due otherwise than by acceleration (with interest upon such
principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest specified in the Notes to the date of such payment or deposit) and such
amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee and their agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or willful misconduct, and if any and all Events of Default under this Indenture, other than the non-payment of the principal of Notes which shall have become due by acceleration, shall have been
cured, waived or otherwise remedied as provided herein, then and in every such case the Holders of a majority in aggregate principal amount of all the Notes then Outstanding, by written notice to the Issuer and to the Trustee, may waive all defaults
with respect to the Notes, and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
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Section 4.2
Collection of Indebtedness by Trustee; Trustee May Prove
Debt.
The Issuer covenants that (a) in case default shall be made in the payment of any installment of interest
on any of the Notes when such interest shall have become due and payable, and such default shall have continued for a period of 30 days or (b) in case default shall be made in the payment of all or any part of the principal of any of the Notes
when the same shall have become due and payable, whether upon maturity of the Notes or upon any redemption or by declaration or otherwise, then upon demand of the Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of the
Notes the whole amount that then shall have become due and payable on all Notes, for principal or interest, as the case may be, with interest to the date of such payment upon the overdue principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest at the same rate as the rate of interest; and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Trustee and each predecessor Trustee, their respective agents, attorneys and counsel, and any expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of its own
negligence or willful misconduct.
Until such demand is made by the Trustee, the Issuer may pay the principal of and interest
on the Notes to the registered Holders, whether or not the principal of and interest on Notes be overdue.
In case the Issuer
shall fail forthwith to pay such amounts upon such demand, 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, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor upon the Notes and collect in the manner provided by law out of the
property of the Issuer or other obligor upon the Notes, wherever situated, the moneys adjudged or decreed to be payable.
In
case there shall be pending proceedings relative to the Issuer or any other obligor upon the Notes under Title 11 of the United States Code or any other applicable federal or state bankruptcy, insolvency or other similar law, or in case a receiver,
assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuer or its property or such other obligor, or in case of any other comparable judicial
proceedings relative to the Issuer or other obligor upon the Notes, or to the creditors or property of the Issuer or such other obligor, the Trustee, irrespective of whether the principal of the Notes 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, shall be entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Notes 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 and each predecessor Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities incurred, and
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all advances made, by the Trustee and each predecessor Trustee, except as a result of negligence or bad faith) and of the Holders allowed in any judicial proceedings relative to the Issuer or
other obligor upon the Notes, or to the creditors or property of the Issuer or such other obligor,
(b) unless prohibited by
applicable law and regulations, to vote on behalf of the Holders of the Notes in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or Person performing similar
functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or deliverable on
any such claims, and to distribute all amounts received with respect to the claims of the Holders and of the Trustee on their behalf, and any trustee, receiver, or liquidator, custodian or other similar official is hereby authorized by each of the
Holders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Holders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes of any series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar Person.
All rights of action
and of asserting claims under this Indenture, or under any of the Notes may be enforced by the Trustee without the possession of any of the Notes 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, subject to the payment of the expenses, disbursements and compensation of the Trustee, each predecessor Trustee and
their respective agents and attorneys, shall be for the ratable benefit of the Holders of the Notes in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to
represent all the Holders of the Notes in respect to which such action was taken, and it shall not be necessary to make any Holders of such Notes parties to any such proceedings.
Section 4.3
Application of Proceeds.
Any moneys collected by the Trustee pursuant to this Article in respect of any series shall be applied in the following order at the date
or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal or interest, upon presentation of the several Notes in respect of which monies have been collected and stamping (or otherwise noting) thereon the
payment, or issuing Notes in reduced principal amounts in exchange for the presented Notes if only partially paid, or upon surrender thereof if fully paid:
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FIRST: To the Trustee (and its agents and attorneys) for amounts due under
Section 5.6;
SECOND: In case the principal of the Notes in respect of which moneys have been collected shall not have
become and be then due and payable, to the payment of interest on the Notes in default 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 same rate as the rate of interest specified in such Notes, such payments to be made ratably to the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Notes in respect of which moneys have been collected shall have become and shall be then due and
payable, to the payment of the whole amount then owing and unpaid upon all the Notes for principal and interest, with interest upon the overdue principal, and (to the extent that such interest has been collected by the Trustee) upon overdue
installments of interest at the same rate as the rate of interest specified in the Notes; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Notes, then to the payment of such principal and
interest, without preference or priority of principal over interest, or of interest over principal, or of any installment of interest over any other installment of interest, or of any Note over any other Note, ratably to the aggregate of such
principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Issuer.
Section 4.4
Suits for Enforcement.
In case an Event of Default has occurred, has not been waived and is continuing, 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 necessary 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 4.5
Restoration of Rights on Abandonment of Proceedings.
In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to
the Trustee, then and in every such case the Issuer and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Trustee and the Holders shall continue as
though no such proceedings had been taken.
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Section 4.6
Limitations on Suits by Holders.
No Holder of any Note 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 trustee, receiver, liquidator, custodian or other similar official or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than 25% in aggregate principal amount of the Notes shall have made
written request upon the Trustee to institute such action or proceedings in its own name as Trustee hereunder and shall have offered to the Trustee such indemnity satisfactory to it 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 shall have failed to institute any such action or proceeding and no direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 4.9; it being understood and intended, and being expressly covenanted by the taker and Holder of every Note with every other taker and Holder and the Trustee, that no one or more Holders of Notes 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 other such Holder of Notes, 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 Holders of Notes (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not
such actions or forbearances are unduly prejudicial to such Holders). For the protection and enforcement of the provisions of this Section, each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 4.7
Unconditional Right of Holders to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any Note, the right of any Holder of any Note to receive
payment of the principal of and interest on such Note on or after the respective due dates expressed or provided for in such Note, or 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 4.8
Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default.
Except as provided in Section 4.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Notes is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Notes to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default
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or an acquiescence therein; and, subject to Section 4.6, every power and remedy given by this Indenture or by law to the Trustee or to the Holders of Notes may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the Holders of Notes.
Section 4.9
Control by Holders of Notes.
The Holders of a majority in aggregate principal amount of the Notes 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 trust or power conferred on the Trustee with respect to the Notes by this Indenture; provided that such direction shall not be otherwise than
in accordance with law and the provisions of this Indenture and provided further that (subject to the provisions of Section 5.1) 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 or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors, the executive committee, or a trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee in personal liability or if the Trustee in good faith shall so determine that the actions or forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Notes of all series so affected not joining in the giving of said direction, it being understood that (subject to Section 5.1) the Trustee shall have no duty to ascertain whether or not such
actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such direction or directions by Holders.
Section 4.10
Waiver of Past Defaults.
Prior to the acceleration of the maturity of any Notes as provided in Section 4.1, the Holders of a majority in aggregate principal
amount of the Notes at the time Outstanding with respect to which an Event of Default shall have occurred and be continuing may on behalf of the Holders of all such Notes waive any past default or Event of Default described in Section 4.1 and
its consequences, except a default in respect of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder of each Note affected. In the case of any such waiver, the Issuer, the Trustee and the Holders of
all such Notes shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of
Default arising therefrom shall be deemed to have been cured, and not to have occurred for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent
thereon.
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Section 4.11
Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances.
The Trustee shall, within 90 days after the occurrence of a Default with respect to the Notes,
give notice of all Defaults known to the Trustee to all Holders of Notes in the manner and to the extent provided in § 313(c) of the Trust Indenture Act of 1939, unless in each case such Defaults shall have been cured before the mailing of such
notice; provided that, except in the case of default in the payment of the principal of or interest on any of the Notes, the Trustee shall be protected in withholding such notice if and so long as a trust committee of directors or trustees and/or
Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders.
Section 4.12
Right of Court to Require Filing of Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Note by its 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, suffered 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, 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 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
10% in aggregate principal amount of the Notes, or, in the case of any suit relating to or arising under clause (c) or (f) of Section 4.1, or to any suit instituted by any Holder for the enforcement of the payment of the principal of
or interest on any Note on or after the due date expressed in such Note or any date fixed for redemption.
ARTICLE FIVE
CONCERNING THE TRUSTEE
Section 5.1
Duties and Responsibilities of the Trustee; During Default; Prior to Default.
(a) Prior to the occurrence of an Event of Default with respect to the Notes and after the curing or waiving of all such Events of Default with respect to which may have occurred:
(i) the duties and obligations of the Trustee with respect to the Notes 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 as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(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 statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the
case of any
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such statements, 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 (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein);
(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(c) 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, or its own willful misconduct, except that:
(i) this subsection (c) shall not
be construed to limit the effect of subsection (a) of this Section 5.1;
(ii) the Trustee shall not
be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders pursuant to Section 4.9 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.
(d) None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment of such funds or adequate indemnity
against such liability is not reasonably assured to it.
(e) 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 5.1.
The provisions of this Section 5.1 are in furtherance of and subject to §§ 315 and 316 of the Trust Indenture Act of 1939.
Section 5.2
Certain Rights of Trustee.
In furtherance of and subject to the Trust Indenture Act of 1939, and subject to Section 5.1:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution,
Officers’ Certificate or any other certificate,
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statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, Note or other paper or document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (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 of the Issuer;
(c) the Trustee may consult with counsel of its
selection and any advice or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in reliance thereon in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts or powers vested in
it by this Indenture at the request, order or direction of any of the Holders pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses
and liabilities which might be incurred therein or thereby,
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond, debenture, note, Note, or other paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or
by agent or attorney, at the sole cost of the Company, and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(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 not regularly in its employ and the Trustee shall not
be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder;
(h) in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of
whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
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(i) the Trustee shall not be deemed to have notice of any Default or Event of Default unless
a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and
this Indenture;
(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without
limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and
(k) the Trustee may request that the Issuer deliver an Officers’ Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in
any such certificate previously delivered and not superseded.
Section 5.3
Trustee Not Responsible for
Recitals Disposition of Notes or Applications of Proceeds Thereof.
The recitals contained herein and in the Notes,
except the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or
sufficiency of this Indenture or of the Notes, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Notes and perform all its obligations hereunder. The Trustee shall not be
accountable for the use or application by the Issuer of any of the Notes or of the proceeds thereof.
Section 5.4
Trustee and Agents May Hold Notes, Collections etc.
The Trustee or any agent of the Issuer or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes
with the same rights it would have if it were not the Trustee or such agent and may otherwise deal with the Issuer and receive, collect, hold and retain collections from the Issuer with the same rights it would have if it were not the Trustee or
such agent.
Section 5.5
Moneys Held by Trustee.
Subject to the provisions of Section 9.4 hereof, all moneys received by the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or the Trustee shall be under
any liability for interest on any moneys received by it hereunder.
Section 5.6
Compensation and
Indemnification of Trustee and Its Prior Claim.
The Issuer covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, such compensation as shall be agreed upon in writing (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express
46
trust) and the Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made
by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all agents and other persons not regularly in its employ) except any
such expense, disbursement or advance as shall have been determined to have been caused by its own negligence or willful misconduct. The Issuer also covenants to indemnify the Trustee and each predecessor Trustee for, and to hold it harmless
against, any and all loss, liability, claim, damage or expense, including taxes (other than those based on or measured by the income of the Trustee) incurred without negligence or willful misconduct on its part, arising out of or in connection with
the acceptance or administration of this Indenture or the trusts hereunder and its duties hereunder, including the costs and expenses of defending itself against or investigating any claim of liability (whether asserted by the Issuer, any Holder or
any other Person) in the premises. The obligations of the Issuer under this Section to compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture or the resignation or removal of the Trustee. Such additional indebtedness shall be a senior claim to that of the Notes
upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Notes, and the Notes are hereby subordinated to such senior claim. When the Trustee incurs expenses or
renders services in connection with an Event of Default specified in Section 4.1(d) or 4.1(e), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses
of administration under any applicable federal or state bankruptcy, insolvency or other similar law.
Section 5.7
Right of Trustee to Rely on Officers’ Certificate.
Subject to Sections 5.1 and 5.2, whenever in the administration of the trusts 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 willful misconduct 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 5.8
Persons Eligible for Appointment as Trustee.
The Trustee shall at all times be a corporation organized and doing business under the laws of the United States of America or of any
state or the District of Columbia having a combined capital and surplus of at least $50,000,000, and which is eligible in accordance with the provisions of § 310(a) of the Trust Indenture Act of 1939. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of a federal, state or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
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Section 5.9
Resignation and Removal; Appointment of Successor Trustee
The Trustee, or any trustee or trustees hereafter appointed, may at any time resign by giving written notice of
resignation to the Issuer and by mailing notice of such resignation to the Holders of then Outstanding Notes at their addresses as they shall appear on the registry books. Upon receiving such notice of resignation, the Issuer shall promptly appoint
a successor trustee or trustees with respect to the applicable series by written instrument in duplicate, executed by authority of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of such notice of resignation, the resigning trustee may petition any court of competent jurisdiction
at the expense of the Issuer for the appointment of a successor trustee, or any Holder who has been a bona fide Holder of a Note or Notes for at least six months may, subject to the provisions of Section 4.12, on behalf of himself and all
others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(a) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of § 310(b) of the Trust Indenture Act of 1939 after written
request therefor by the Issuer or by any Holder who has been a bona fide Holder of a Note or Notes of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the provisions of § 310(a) of the Trust Indenture Act of 1939 and shall fail to resign after written request therefor by the Issuer or
by any Holder; or
(iii) the Trustee shall become incapable of acting with respect to the Notes, or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee and appoint a successor trustee for such series by
written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to § 315(e) of the Trust Indenture Act
of 1939, any Holder who has been a bona fide Holder of a Note or Notes for at least six months may on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the Issuer, any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Notes.
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(b) The Holders of a majority in aggregate principal amount of the Notes at the time
Outstanding may at any time remove the Trustee with respect to the Notes and appoint a successor trustee with respect to the Notes by delivering to the Trustee so removed, to the successor trustee so appointed and to the Issuer the evidence provided
for in Section 6.1 of the action in that regard taken by the Holders.
Any resignation or removal of the Trustee and any
appointment of a successor trustee with respect to such series pursuant to any of the provisions of this Section 5.9 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 5.10
Section 5.10
Acceptance and Appointment of Successor Trustee.
Any successor trustee appointed as provided in Section 5.9 shall execute and deliver to the Issuer and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all Notes shall become effective and such successor trustee, without any further act, deed or conveyance, shall
become vested with all rights, powers, duties and obligations with respect to such Notes of its predecessor hereunder, with like effect as if originally named as trustee for the Notes hereunder; but, nevertheless, on the written request of the
Issuer or of the successor trustee, upon payment of its charges then unpaid, the trustee ceasing to act shall, subject to Section 9.4, pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and deliver
an instrument transferring to such successor trustee all such rights, powers, duties and obligations. Upon request of any such successor trustee, the Issuer shall execute any and all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 5.6.
Upon acceptance of appointment by any successor trustee as provided in this
Section 5.10, the Issuer shall give notice thereof to the Holders thereof by mailing such notice to such Holders at their addresses as they shall appear on the registry books. If the acceptance of appointment is substantially contemporaneous
with the resignation, then the notice called for by the preceding sentence may be combined with the notice called for by Section 5.9. If the Issuer fails to give such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be given at the expense of the Issuer.
Section 5.11
Merger, Conversion, Consolidation or Succession to Business of Trustee.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be eligible under the provisions of Section 5.8, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
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In case at the time such successor to the Trustee shall succeed to the trusts created by
this Indenture any of the Notes of any series 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 Notes so authenticated; and, in
case at that time any of the Notes of any series shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the Notes of such series or in this Indenture provided that the certificate of the Trustee shall have; provided, that the right to adopt the certificate of authentication of
any predecessor trustee or to authenticate Notes of any series in the name of any predecessor trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Section 5.12
Appointment of Authenticating Agent.
As long as any Notes remain Outstanding, the Trustee may, by an instrument in writing, appoint with the approval of the Issuer an authenticating agent (the “Authenticating Agent”) which shall be
authorized to act on behalf of the Trustee to authenticate Notes, including Notes issued upon exchange, registration of transfer, partial redemption or pursuant to Section 2.7. Notes authenticated by such Authenticating Agent shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee. Whenever reference is made in this Indenture to the authentication and delivery of Notes by the Trustee or to the Trustee’s
certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent for such series and a certificate of authentication executed on behalf of the Trustee by such
Authenticating Agent. Such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States of America or of any state, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 (determined as provided in Section 5.8 with respect to the Trustee) and subject to supervision or examination by federal or state authority.
Any corporation into which any Authenticating Agent may be merged or converted, or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency business of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to the Notes for which it served as Authenticating Agent without the execution or filing of any paper or any further act on the part of the Trustee or such Authenticating Agent.
Any Authenticating Agent may at any time, and if it shall cease to be eligible shall, resign by giving written notice of resignation to
the Trustee and to the Issuer. The Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Issuer. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time any Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 5.12 with respect to the Notes, the Trustee may upon receipt of an Issuer Order appoint a successor
Authenticating Agent and the Issuer shall provide notice of such appointment to all Holders of Notes of such series in the manner and to the extent provided in Section 5.10. Any successor Authenticating Agent upon
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acceptance of its appointment hereunder shall become vested with all rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as
Authenticating Agent. The Issuer agrees to pay to the Authenticating Agent for such series from time to time reasonable compensation. The Authenticating Agent for the Notes shall have no responsibility or liability for any action taken by it as such
at the direction of the Trustee.
Sections 5.2, 5.3, 5.4, 5.6, 5.8 and 6.3 shall be applicable to any Authenticating Agent.
ARTICLE SIX
CONCERNING THE HOLDERS
Section 6.1
Evidence of Action
Taken by Holders.
Any request, demand, authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by a specified percentage in principal amount of the Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of Holders in person or
by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Sections 5.1 and 5.2) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Article.
Section 6.2
Proof of Execution of Instruments and of Holding of Notes.
Subject to Sections 5.1 and 5.2, the execution of any instrument by a Holder or his agent or proxy may be proved in the following manner:
(i) The fact and date of the execution by any Holder of any instrument may be proved by the certificate of any
notary public or other officer of any jurisdiction authorized to take acknowledgments of deeds or administer oaths that the Person executing such instruments acknowledged to him the execution thereof, or by an affidavit of a witness to such
execution sworn to before any such notary or other such officer. Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute sufficient proof of the authority of the
Person executing the same. The fact of the holding by any Holder of a Note, and the identifying number of such Note and the date of his holding the same, may be proved by the production of such Note or by a certificate executed by any trust company,
bank, banker or recognized securities dealer wherever situated satisfactory to the Trustee, if such certificate shall be deemed by the Trustee to be satisfactory. Each such certificate shall be dated and shall state that on the date thereof a Note
bearing a specified identifying number was deposited with or exhibited to such trust company, bank, banker or recognized securities dealer by the Person named in such certificate. Any such certificate may be issued in respect of one or more Notes
specified therein. The holding by the Person named in any such certificate of any Notes specified therein shall be presumed to continue for a period of one year from the date of such certificate unless at the time of
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any determination of such holding (1) another certificate bearing a later date issued in respect of the same Notes shall be produced, or (2) the Note specified in such certificate shall
be produced by some other Person, or (3) the Note specified in such certificate shall have ceased to be Outstanding. The fact and date of the execution of any such instrument and the amount and numbers of Notes held by the Person so executing
such instrument and the amount and numbers of any Note or Notes may also be proven in accordance with such reasonable rules and regulations as may be prescribed by the Trustee for such series or in any other manner which the Trustee for such series
may deem sufficient.
(ii) The ownership of Notes shall be proved by the Security Register or by a certificate
of the Registrar.
Section 6.3
Holders to be Treated as Owners.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may deem and treat the Person in whose name any Note shall be
registered upon the Note register as the absolute owner of such Note (whether or not such Note 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, subject to the provisions of this Indenture, interest on such Note and for all other purposes; and neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be affected by any notice to the contrary. The
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Holder of any Note as the absolute owner of such Note for the purpose of receiving payment thereof or on account thereof and for all other purposes and neither the Issuer,
the Trustee, nor any agent of the Issuer or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such Person, 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 moneys payable upon any such Note.
Section 6.4
Notes Owned by
Issuer Deemed Not Outstanding.
In determining whether the Holders of the requisite aggregate principal amount of
Outstanding Notes have concurred in any direction, consent or waiver under this Indenture, Notes which are owned by the Issuer or any other obligor on the Notes with respect to which such determination is being made or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Notes with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver only Notes which the Trustee knows are so owned shall be so disregarded. Notes
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 pledgee’s right so to act with respect to such Notes and that the pledgee is not the Issuer or any
other obligor upon the Notes or any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Notes. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying all Notes, if
any, known by the Issuer to be owned or
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held by or for the account of any of the above-described Persons; and, subject to Sections 5.1 and 5.2, the Trustee shall be entitled to accept such Officers’ Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Notes not listed therein are Outstanding for the purpose of any such determination.
Section 6.5
Right of Revocation of Action Taken.
At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 6.1, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Notes
specified in this Indenture in connection with such action, any Holder the serial number of which is shown by the evidence to be included among the serial numbers of the Notes the Holders of which have consented to such action may, by filing written
notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke such action so far as concerns such Note. Except as aforesaid any such action taken by the Holder of any Note shall be conclusive and binding upon
such Holder and upon all future Holders and owners of such Note and of any Notes issued in exchange or substitution therefor or on registration of transfer thereof, irrespective of whether or not any notation in regard thereto is made upon any such
Note. Any action taken by the Holders of the percentage in aggregate principal amount of the Notes specified in this Indenture in connection with such action shall be conclusively binding upon the Issuer, the Trustee and the Holders of all the Notes
affected by such action.
ARTICLE SEVEN
AMENDMENTS
Section 7.1
Amendments and Supplements
Without Consent of Holders.
The Issuer, when authorized by a resolution of its Board of Directors (which resolution
may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Officers’ Certificate), and the Trustee may from time to time and at any time
enter into an amend or supplement this Indenture for one or more of the following purposes:
(a) to convey, transfer, assign,
mortgage or pledge to the Trustee as security for the Notes any property or assets;
(b) to evidence the succession of another
Person to the Issuer, or successive successions, and the assumption by the successor Person of the covenants, agreements and obligations of the Issuer pursuant to Article Eight;
(c) to add to the covenants of the Issuer such further covenants, restrictions, conditions or provisions as the Issuer and the Trustee
shall consider to be for the protection of the Holders of Notes and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Indenture as herein set forth; 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
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may provide for an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a
majority in aggregate principal amount of the Notes to waive such an Event of Default;
(d) to cure any ambiguity or to
correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make any other provisions as the Issuer
may deem necessary or desirable, provided that no such action shall materially adversely affect the interests of the Holders of the Notes;
(e) to establish the form or terms of the Notes or Additional Notes; and
(f) to
evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Notes 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, pursuant to the requirements of Section 5.10.
The Trustee is hereby
authorized to join with the Issuer in the execution of any such amendment or supplement, 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 amendment or supplement that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any amendment or supplement authorized by the provisions of this Section may be executed without the consent of the Holders of any of the
Notes at the time Outstanding, notwithstanding any of the provisions of Section 7.2.
Section 7.2
Amendments and Supplements With Consent of Holders
With the consent (evidenced as provided in Article Six) of the Holders of not less than a majority in aggregate principal amount of the
Notes at the time Outstanding affected by such amendment or supplement, the Issuer, when authorized by a resolution of its Board of Directors (which resolution may provide general terms or parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or pursuant to an Issuer Order), and the Trustee may, from time to time and at any time, amendment or supplement this Indenture 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 amendment or supplement hereto or of modifying in any manner the rights of the Holders of the Notes; provided, that no such amendment or supplement shall (a) extend the
final maturity of any Note, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption thereof, or make the principal thereof or interest thereon payable
in any coin or currency other than that provided in the Notes that would be due and payable upon an acceleration of the maturity thereof pursuant to Section 4.1 or the amount thereof provable in bankruptcy pursuant to Section 4.2 or impair
or affect the right of any Holder to institute suit for the payment thereof or, if the Notes provide therefor, any right of repayment
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at the option of the Holder, in each case without the consent of the Holder of each Note so affected, or (b) reduce the aforesaid percentage of Notes of any series, the consent of the
Holders of which is required for any such amendment or supplement, without the consent of the Holders of each Note so affected.
Upon the request of the Issuer, accompanied by a copy of a resolution of the Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order) certified by the secretary or an assistant secretary of the general partner of the Issuer
authorizing the execution of any such amendment or supplement, and upon the filing with the Trustee of evidence of the consent of the Holders of the Notes as aforesaid and other documents, if any, required by Section 6.1, the Trustee shall join
with the Issuer in the execution of such amendment or supplement unless such amendment or supplement affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amendment or supplement.
It shall not be necessary for the consent of the Holders
under this Section to approve the particular form of any proposed amendment or supplement, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any amendment or supplement pursuant to the provisions of this Section, the Trustee shall give notice thereof to the Holders of then
Outstanding Registered Notes. Any failure of the Issuer to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment or supplement.
Section 7.3
Effect of Amendment or Supplement to this Indenture.
Upon the execution of any amendment or supplement pursuant to the provisions hereof, 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 Issuer and the Holders of Notes affected thereby 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 amendment or supplement shall be and be deemed to be part of the terms and conditions of this Indenture for
any and all purposes.
Section 7.4
Documents to Be Given to Trustee.
The Trustee, subject to the provisions of Sections 5.1 and 5.2, shall be provided with an Officers’ Certificate and an Opinion of
Counsel as conclusive evidence that any amendment or supplement to this Indenture executed pursuant to this Article complies with the applicable provisions of this Indenture, is authorized or permitted under this Indenture and is a legal, valid and
binding obligation of the Issuer, enforceable in accordance with its terms.
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Section 7.5
Notation on Notes in Respect of Amendments and
Supplements.
Notes authenticated and delivered after the execution of any amendment or supplement to this Indenture
pursuant to the provisions of this Article may bear a notation in form approved by the Trustee as to any matter provided for by such amendment or supplement or as to any action taken by Holders. If the Issuer shall so determine, new Notes so
modified as to conform, in the opinion of the Board of Directors, to any modification of this Indenture contained in any such amendment or supplement may be prepared by the Issuer, authenticated by the Trustee and delivered in exchange for the Notes
then Outstanding.
ARTICLE EIGHT
SUCCESSORS
Section 8.1
Merger, Consolidation or Sale of
Assets of the Issuer.
The Issuer shall not consolidate with or merge into any other Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person, unless:
(i) the Person formed by
such consolidation or into which the Issuer is merged or the Person which acquires by conveyance, transfer or lease the properties and assets of the Issuer substantially as an entirety shall expressly assume, by a supplemental indenture hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and interest on all the Notes according to their tenor, and the performance of every covenant of this Indenture and the
Registration Rights Agreement on the part of the Issuer to be performed or observed;
(ii) immediately after
giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have happened and be continuing; and
(iii) the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that
such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 8.2
Successor Person Substituted.
In case of any such consolidation, merger, sale, lease or conveyance, and following such an assumption by the successor Person, such
successor Person shall succeed to and be substituted for the Issuer, with the same effect as if it had been named herein. Such successor Person may cause to be signed, and may issue either in its own name or in the name of the Issuer prior to such
succession any or all of the Notes issuable hereunder that theretofore shall not have been signed by the Issuer and delivered to the Trustee; and, upon the order of such successor Person, instead of the Issuer, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Notes which previously shall have been signed and delivered by the officers of the Issuer to the Trustee for authentication, and any Notes
which such successor Person thereafter shall cause to be signed and delivered to the Trustee for that purpose. All of the Notes so issued shall in all respects have
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the same legal rank and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Notes had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance such changes in
phrasing and form (but not in substance) may be made in the Notes thereafter to be issued as may be appropriate.
In the event
of any such sale or conveyance (other than a conveyance by way of lease) the Issuer or any successor Person which shall theretofore have become such in the manner described in this Article shall be discharged from all obligations and covenants under
this Indenture and the Notes and may be liquidated and dissolved.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 9.1
Satisfaction and Discharge of Indenture.
(a) If at any time (a) the Issuer shall have paid or caused to be paid the principal of and interest on all the Notes Outstanding hereunder (other than Notes which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.7) as and when the same shall have become due and payable, or (b) the Issuer shall have delivered to the Trustee for cancellation all Notes theretofore authenticated (other than
any Notes which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.7) or (c) in the case of Notes where the exact or maximum amount of principal of and interest due on which can be
determined at the time of making the deposit referred to in clause (ii) below, (i) all the Notes 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 (ii) the Issuer shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount in cash (other than moneys repaid by the Trustee or any paying agent to the Issuer in accordance with Section 9.4), or, direct obligations of the United States of America, backed by its full faith and
credit (“U.S. Government Obligations”), maturing as to principal and interest at such times and in such amounts as will insure the availability of cash, or a combination thereof, sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay (A) the principal of and interest on all Notes on each date that such principal or interest is due and payable and (B) any
mandatory sinking fund payments applicable to Notes of such Series on the dates on which such payments are due and payable in accordance with the terms of the Indenture and the Notes; and if, in any such case, the Issuer shall also pay or cause to
be paid all other sums payable hereunder by the Issuer with respect to the Notes, then this Indenture with respect to the Notes shall cease to be of further effect (except as to (i) rights of registration of transfer and exchange of Notes and
the Issuer’s right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Notes, (iii) rights of Holders of Notes to receive payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration), and remaining rights of the Holders to receive mandatory sinking fund payments, if any, (iv) the rights,
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obligations, duties and immunities of the Trustee hereunder, and (v) the rights of the Holders of Notes as beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them) and the Trustee, on demand of the Issuer accompanied by an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Issuer, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture with respect to the Notes; provided, that the rights of Holders of the Notes to receive amounts in respect of principal of and interest on the Notes held by them shall not be delayed longer than
required by then-applicable mandatory rules or policies of any securities exchange upon which the Notes are listed. The Issuer agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate
the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Notes.
(b) The following provisions shall apply to the Notes unless specifically otherwise provided in a Board Resolution, Officers’ Certificate or indenture supplemental hereto provided pursuant to
Section 2.15. In addition to discharge of the Indenture pursuant to the next preceding paragraph, in the case of Notes the exact or maximum amounts (including the currency of payment) of principal of and interest due on which can be determined
at the time of making the deposit referred to in clause (a) below, the Issuer shall be deemed to have paid and discharged the entire indebtedness on all the Notes on the 91st day after the date of the deposit referred to in subparagraph
(a) below, and the provisions of this Indenture with respect to the Notes shall no longer be in effect (except as to (i) rights of registration of transfer and exchange of Notes and the Issuer’s right of optional redemption, if any,
(ii) substitution of mutilated, defaced, destroyed, lost or stolen Notes, (iii) rights of Holders of Notes to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking fund payments, if any, (iv) the rights, obligations, duties and immunities of the Trustee hereunder, and (v) the rights of the Holders of Notes as
beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them) and the Trustee, at the expense of the Issuer, shall at the Issuer’s request, execute proper instruments acknowledging the same, if
(i) with reference to this provision the Issuer has irrevocably deposited or caused to be irrevocably
deposited with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Notes (i) cash in an amount, or (ii) U.S. Government Obligations, maturing as to principal
and interest at such times and in such amounts as will insure the availability of cash or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (A) the principal of and interest on all Notes on each date that such principal or interest is due and payable and (B) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the Indenture and the Notes;
(ii) such deposit
will not result in a breach or violation of, or constitute a default under, any agreement or instrument (other than this Indenture) to which the Issuer is a party or by which it is bound;
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(iii) the Issuer has delivered to the Trustee an Opinion of Counsel based on
the fact that (x) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date hereof, there has been a change in the applicable federal income tax law, in either case to the
effect that, and such opinion shall confirm that, the Holders of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit, defeasance and discharge 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 deposit, defeasance and discharge had not occurred;
(iv) the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by
this provision have been complied with; and
(v) no Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the Notes shall have occurred and be continuing on the date of such deposit or, insofar as subsections 4.1(d) and (e) are concerned, at any time during the period ending on the 91st
day after the date of such deposit, other than an Event of Default or such event resulting from the borrowing of funds to be applied to such deposit.
(c) The following provisions shall apply to the Notes of each series unless specifically otherwise provided in a Board Resolution, Officers’ Certificate or indenture supplemental hereto provided
pursuant to Section 2.15. In the case of Notes the exact or maximum amounts (including the currency of payment) of principal of and interest due on the Notes can be determined at the time of making the deposit referred to in clause
(a) below, the Issuer shall be released from its obligations under Sections 3.4, 3.5 and 8.1 with respect to the Outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “covenant
defeasance”). For this purpose, such covenant defeasance means that, with respect to the Outstanding Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in such
Sections, whether directly or indirectly by reason of any reference elsewhere herein to such Sections or by reason of any reference in such Sections to any other provision herein or in any other document and such omission to comply shall not
constitute an Event of Default under Section 4. 1, but the remainder of this Indenture and such Notes shall be unaffected thereby. The following shall be the conditions to application of this subsection (c) of this Section 9.1:
(i) The Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust
for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Notes, (i) cash in an amount, or (ii) U.S. Government Obligations maturing as to principal
and interest at such times and in such amounts as will insure the availability of cash or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (A) the principal of and interest on all Notes on each date that such principal and interest is due and payable and (B) any mandatory sinking fund payments applicable to such Notes on
the day on which such payments are due and payable in accordance with the terms of the Indenture and the Notes;
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(ii) No Event of Default or event which with notice or lapse of time or both
would become an Event of Default with respect to the Notes shall have occurred and be continuing on the date of such deposit or, insofar as subsections 4.1(d) and (e) are concerned, at any time during the period ending on the 91st day after the
date of such deposit, other than an Event of Default or such event resulting from the borrowing of funds to be applied to such deposit;
(iii) Such covenant defeasance shall not result in a breach or violation of, or constitute a default under any agreement or instrument (other than this Indenture) to which the Issuer is a party or by
which it is bound;
(iv) The Issuer shall have delivered to the Trustee an Officers’ Certificate and
Opinion of Counsel to the effect that the Holders of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such covenant defeasance and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such covenant defeasance had not occurred; and
(v)
The Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the covenant defeasance contemplated by this provision have been complied
with.
Section 9.2
Application by Trustee of Funds Deposited for Payment of Notes.
Subject to Section 9.4, all moneys deposited with the Trustee (or other trustee) pursuant to Section 9.1 shall be held in trust
and applied by it to the payment, either directly or through any paying agent (including the Issuer acting as its own paying agent), to the Holders of the particular Notes for the payment or redemption of which such moneys have been deposited with
the Trustee, of all sums due and to become due thereon for principal and interest; but such money need not be segregated from other funds except to the extent required by law.
Section 9.3
Repayment of Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture with respect to Notes, all moneys then held by any paying agent under the provisions of this Indenture with respect to the Notes shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys.
Section 9.4
Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years.
Any moneys deposited with or paid to the Trustee or any paying agent for the payment of the principal of or interest on any Note and not applied but remaining unclaimed for
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two years after the date upon which such principal or interest shall have become due and payable, shall, upon the written request of the Issuer and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Issuer by the Trustee or such paying agent, and the Holder of the Notes shall, unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, thereafter look only to the Issuer for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease; provided,
however, that the Trustee or such paying agent, before being required to make any such repayment with respect to moneys deposited with it for any payment in respect of Registered Notes of any series, shall at the expense of the Issuer, mail by
first-class mail to Holders of such Notes at their addresses as they shall appear on the Note register, notice, that such moneys remain and that, after a date specified therein, which shall not be less than 30 days from the date of such mailing or
publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.
Section 9.5
Indemnity for U.S. Government Obligations.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 9.1 or the principal or interest received in respect of such obligations.
Section 9.6
Excess Funds.
The Trustee shall deliver to the Issuer from time to time upon Issuer Order any U.S. Government Obligations or money held by it as provided in Section 9.1 which, as expressed in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may include the applicable opinion delivered to the Trustee pursuant to Section 9.1), are then in excess
of the amount thereof which then would have been required to be deposited for the purpose for which such obligations or money were deposited or received.
ARTICLE TEN
MISCELLANEOUS PROVISIONS
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Section 10.1
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Incorporators, Sponsors, Members, Partners, Holders of Equity Interests, Officers and Directors of Issuer Exempt from Individual Liability.
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No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Note,
or because of any indebtedness evidenced thereby, shall be had against any future director, officer, employee, incorporator or sponsor, member, partner or holder of equity interest of the Issuer, as such, or of any successor, either directly or
through the Issuer, the general partner of the Issuer or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Notes by the Holders thereof and as part of the consideration for the issue of the Notes.
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Section 10.2
Provisions of Indenture for the Sole Benefit of Parties and
Holders of Notes.
Nothing in this Indenture or in the Notes, expressed or implied, shall give or be construed to give
to any Person, other than the parties hereto and their successors and the Holders of the Notes, any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions
being for the sole benefit of the parties hereto and their successors and of the Holders of the Notes.
Section 10.3
Successors and Assigns of Issuer Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the Issuer shall bind its
successors and assigns, whether so expressed or not.
Section 10.4
Notices and Demands on Issuer, Trustee
and Holders of Notes
Any notice or communication by the Issuer or the Trustee to the other is duly given if in writing
and delivered in person or mailed by first class mail (registered or certified, return receipt requested), facsimile transmission or overnight air courier guaranteeing next-day delivery, to the other’s address:
If to the Issuer:
Gulf South Pipeline Company, LP
9 Greenway Plaza
Houston, TX 77046
Attn: General Counsel
Facsimile No.: (866) 459-7336
If to the Trustee:
The Bank of New York Mellon Trust Company, N.A.
2 North LaSalle St., Suite 1020
Chicago, IL 60602
Attn: Corporate Trust Administration
Facsimile No.: (312) 827-8542
The Issuer or the Trustee, by notice to the
other, may designate additional or different addresses for subsequent notices or communications.
All notices and
communications (other than those sent to the Trustee or Holder) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when
receipt acknowledged, if sent by facsimile transmission; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next-day delivery. All notices and communications to the Trustee or Holder shall
be deemed duly given and effective only upon receipt.
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Any notice or communication to a Holder shall be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next-day delivery to its address shown on the Security Register. Any notice or communication shall also be so mailed to any Person described in Trust Indenture Act of
1939 § 313(c), to the extent required by the Trust Indenture Act of 1939. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Issuer mails a notice or communication to Holders, it shall mail a copy to the Trustee and each
Agent at the same time.
In addition to the foregoing, the Trustee agrees to accept and act upon notice, instructions or
directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods. If the party elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic
method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or
indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume
all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by
third parties.
Section 10.5
Officers’ Certificates and Opinions of Counsel; Statements to Be Contained
Therein
Upon any application or demand by the Issuer to the Trustee to take any action under any of the provisions of
this Indenture, the Issuer shall furnish to the Trustee an Officers’ Certificate stating that all 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 conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents 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 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.
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Any certificate, statement or opinion of an officer of the Issuer may be based, insofar as
it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate, statement or opinion
may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters, upon information with
respect to which is in the possession of the Issuer, or upon the certificate, statement or opinion of or representations by an officer or officers of the Issuer, unless such counsel knows that the certificate, statement or opinion or representations
with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
Section 10.6
Payments Due on Saturdays, Sundays and Holidays.
If the date of maturity of interest on or principal of the Notes or the date fixed for redemption or repayment of any such
Note shall not be a Business Day, then payment of interest or principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for
redemption or repayment, and no interest shall accrue for the period after such date.
Section 10.7
Conflict
of Any Provision of Indenture with Trust Indenture Act of 1939.
If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in this Indenture by operation of §§ 310 to 317, inclusive, of the Trust Indenture Act of 1939 (an “incorporated provision”), such incorporated provision
shall control.
Section 10.8
New York Law to Govern; Submission to Jurisdiction.
This Indenture and each Note shall be governed by the laws of the State of New York, and shall be construed in accordance with the laws of
such state. The Issuer hereby irrevocably submits to the jurisdiction of any New York State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Borough of Manhattan in the City of New York in respect
of any suit, action or proceeding arising out of or relating to this Indenture and the Notes, and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid courts.
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Section 10.9
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.
Section 10.10
Effect of Headings.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 10.11
Waiver of Jury Trial.
EACH OF THE HOLDERS, THE ISSUER AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 10.12
Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its
control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under
the circumstances.
ARTICLE ELEVEN
REDEMPTION AND PREPAYMENT
Section 11.1
Notices to
Trustee.
If the Issuer elects to redeem Notes pursuant to the optional redemption provisions of Section 11.7
hereof, it shall furnish to the Trustee, at least 45 days but not more than 60 days before a redemption date (or such shorter period as allowed by the Trustee), an Officers’ Certificate setting forth (i) the applicable section of this
Indenture pursuant to which the redemption shall occur, (ii) the redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the redemption price.
Section 11.2
Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any time, the Trustee shall select the Notes to be redeemed among the Holders of the Notes in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are not so listed, by lot or in accordance with any other method the Trustee deems appropriate
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(and in compliance with applicable legal requirements). However, no Notes of a principal amount of $1,000 or less shall be redeemed in part, and, if a partial redemption of Notes is made with the
proceeds of a public offering of common equity securities of the Issuer, selection of the Notes or portions of the Notes for redemption shall be made by the Trustee only on a proportional basis or on as nearly a proportional basis as is practicable
(except as required by the procedures of DTC), unless that method is otherwise prohibited. In the event of partial redemption by lot, the particular Notes to be redeemed shall be selected, unless otherwise provided herein, not less than 30 nor more
than 60 days prior to the redemption date by the Trustee from the Outstanding Notes not previously called for redemption.
The
Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed. Notes and portions of Notes selected shall be in
amounts of $2,000 or integral multiples of $1,000, except that if all of the Notes of a Holder are to be redeemed, the entire Outstanding amount of Notes held by such Holder, even if not an integral multiple of $1,000, shall be redeemed. Except as
provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption.
Section 11.3
Notice of Redemption.
At
least 30 days but not more than 60 days prior to a redemption date, the Issuer shall mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at such Holder’s address appearing in the
securities register maintained in respect of the Notes by the Registrar (the “Security Register”).
The notice shall
identify the Notes to be redeemed (including the CUSIP number) and shall state:
(a) the redemption date;
(b) The appropriate calculation of the redemption price, but need not include the redemption price itself. The actual redemption price,
calculated as described above, shall be set forth in an Officers’ Certificate delivered to the Trustee no later than one (1) Business Day prior to the redemption date;
(c) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, if applicable, a new Note or Notes in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(f) that, unless the Issuer defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date;
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(g) the applicable section of this Indenture pursuant to which the Notes called for
redemption are being redeemed; and
(h) the CUSIP and/or ISIN numbers, if applicable, and may make the statement described in
Section 2.13.
At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s name
and at its expense; provided, however, that the Issuer shall have delivered to the Trustee, at least 15 days (or such shorter period allowed by the Trustee) prior to the date of the giving of such notice of redemption, an Officers’ Certificate
requesting that the Trustee give such notice (in the name and at the expense of the Issuer) and setting forth the information to be stated in such notice as provided in this Section 11.3.
Section 11.4
Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 11.3 hereof, Notes called for redemption shall become irrevocably due
and payable on the redemption date at the redemption price. A notice of redemption may not be conditional.
Section 11.5
Deposit of Redemption Price.
On or prior to 11:00 a.m. New York City time on the Business Day prior to any redemption date, the Issuer shall deposit with the Trustee
or with the Paying Agent money sufficient to pay the redemption price of and, if applicable, accrued and unpaid interest on all Notes to be redeemed on that date. The Trustee or the Paying Agent shall promptly, and in any event within two
(2) Business Days after the redemption date, return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption price of, and, accrued and unpaid interest, if
any, on all Notes to be redeemed.
If the Issuer complies with the provisions of the preceding paragraph, on and after the
redemption date, interest shall cease to accrue on Notes or portions of Notes called for purchase or redemption in accordance with Section 2.8(d) hereof, whether or not such Notes are presented for payment. If a Note is redeemed on or after a
Regular Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest, if any, shall be paid to the Person in whose name such Note was registered at the close of business on such Regular Record Date. If any
Note called for redemption shall not be so paid upon surrender for redemption because of the failure of the Issuer to comply with the preceding paragraph, interest shall be paid on the unpaid principal from the redemption date until such principal
is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.
Section 11.6
Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Issuer shall issue and, upon the Issuer’s written request, the Trustee shall
authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed portion of the Note surrendered.
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Section 11.7
Optional Redemption.
(a) The Notes will be redeemable as a whole or in part, at the option of the Issuer at any time prior to the date that is 90 days prior to
June 15, 2022 at a redemption price determined by the Issuer equal to the greater of (i) 100% of the principal amount of such Notes and (ii) the sum of the present values of the remaining scheduled payments of principal and interest
thereon discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 37.5 basis points, plus in each case accrued interest thereon to the date of redemption.
(b) The Notes will be redeemable as a whole or in part, at the option of the Issuer at any time on or after the date that is
90 days prior to June 15, 2022 at a redemption price determined by the Issuer equal to 100% of the principal amount of such Notes, plus accrued interest thereon to the date of redemption.
(c) Any prepayment pursuant to this Section 11.7 shall be made pursuant to the provisions of Sections 11.1 through 11.6 hereof.
Section 11.8
No Mandatory Redemption.
The Issuer shall not be required to make mandatory redemption or sinking fund payments with respect to, or offers to purchase, the Notes.
[
Signatures on following page
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S
IGNATURES
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Dated as of June 12, 2012.
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I
SSUER
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GULF SOUTH PIPELINE COMPANY, LP
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By:
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GS Pipeline Company, LLC, its general partner
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By:
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/s/ Jamie L. Buskill
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Name:
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Jamie L. Buskill
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Title:
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Senior Vice President, Chief Financial Officer and Treasurer
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T
RUSTEE
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
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as Trustee
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By:
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/s/ R. Tarnas
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Name:
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R. Tarnas
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Title:
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Vice President
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EXHIBIT A-1
(Face of Note)
4.000% NOTES DUE 2022
GULF SOUTH PIPELINE COMPANY, LP
promises to pay to
, or its registered assigns, the principal sum of
U.S. Dollars ($
) on June 15, 2022.
Interest Payment Dates: June 15 and December 15, commencing December 15, 2012
Record Dates: June 1 and December 1
IN WITNESS WHEREOF, the Issuer has
caused this Note to be signed by its duly authorized officer.
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GULF SOUTH PIPELINE COMPANY, LP
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By:
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GS Pipeline Company, LLC, its general partner
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By:
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Name:
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Title:
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This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
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By:
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Authorized Signatory
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Dated:
,
20
(Back of Note)
4.000% NOTES DUE 2022
[THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING ITS NOTE IN AN “OFFSHORE TRANSACTION” PURSUANT TO RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS ONE YEAR (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY
RULE 144(d) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF
THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE “RESALE RESTRICTION TERMINATION DATE”), OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE ISSUER,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A
INSIDE THE UNITED STATES, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE ISSUER, THE TRUSTEE AND THE REGISTRAR SHALL
HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THIS TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.]
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS
NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.6
OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF THE INDENTURE, (III)THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV)
THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER.
UNLESS AND UNTIL
IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC). ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
1.
Interest
. Gulf South Pipeline
Company, LP, a Delaware limited partnership (the “Issuer”), promises to pay interest on the principal amount of this Note at 4.000% per annum until maturity. The Issuer shall pay interest semi-annually in arrears in cash on
June 15 and December 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each an “Interest Payment Date”). Interest on the Notes shall accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from June 12, 2012; provided, however, that if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue
from such next succeeding Interest Payment Date; provided, further, that the first Interest Payment Date shall be December 15, 2012. The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time at the interest rate then in effect under the Indenture and this Note; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest, from time to time at the same rate to the extent lawful. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months. For the avoidance of doubt, each reference to “interest” herein shall be deemed to refer to “interest and Additional Interest, if any.”
2.
Method of Payment
. The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons in whose name this
Note (or one or more Predecessor Notes) is registered at the close of business on June 1 or December 1 preceding the Interest Payment Date, even if such Notes are cancelled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes shall be payable as to principal, premium, if any, and interest at the office or agency of the Issuer maintained for such purpose, or, at
the option of the Issuer, payment of interest may be made by check mailed to the Holders at their addresses set forth in the Security Register; provided, however, that payment by wire transfer of immediately available funds shall be required with
respect to principal of and interest and premium, if any, on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Issuer or the Paying Agent. Such payment shall be in such coin or currency
of the United States of America as at the time of payment is legal tender for payment of public and private debts.
3.
Paying Agent and Registrar
. Initially, The Bank of New York Mellon Trust Company, N.A., the Trustee under the Indenture, shall act as Paying Agent and Registrar. The Issuer may change any Paying Agent or Registrar without notice to any
Holder. The Issuer or any of its Subsidiaries may act in any such capacity.
4.
Indenture
. The Issuer issued the Notes
evidenced hereby under an Indenture, dated as of June 12, 2012, between the Issuer and the Trustee (the “Indenture”). The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended
(
15 U.S. Code §§ 77aaa-77bbbb
)
. The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
5.
Optional Redemption
.
(a) The Notes will be redeemable as a whole or in
part, at the option of the Issuer at any time prior to the date that is 90 days prior to June 15, 2022 at a redemption price determined by the Issuer equal to the greater of (i) 100% of the principal amount of such Notes and (ii) the
sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 37.5
basis points, plus in each case accrued interest thereon to the date of redemption.
(b) The Notes will be redeemable as a
whole or in part, at the option of the Issuer at any time on or after the date that is 90 days prior to June 15, 2022 at a redemption price determined by the Issuer equal to 100% of the principal amount of such Notes, plus accrued interest
thereon to the date of redemption.
For purposes of this Note the following terms shall have the meaning specified.
“
Comparable Treasury Issue
” means the United States Treasury security selected by an Independent Investment Banker as
having a maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Notes.
“
Comparable Treasury Price
” means, with respect to any
redemption date, (i) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if the Issuer obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such Quotations.
“
Independent Investment Banker
”
means one of the Reference Treasury Dealers appointed by the Issuer.
“
Reference Treasury Dealer
” means each
of Barclays Capital Inc. and J.P. Morgan Securities LLC. If any of the Reference Treasury Dealers resigns, the successor dealer shall be a primary U.S. Government securities dealer in New York City selected by the Issuer.
“
Reference Treasury Dealer Quotations
” means, with respect to each Reference Treasury Dealer and any redemption date,
the average, as determined by the Issuer, of the bid and ask prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Issuer by such Reference Treasury Dealer at 5:00 p.m. on
the third business day preceding such redemption date.
“
Treasury Rate
” means, with respect to any redemption
date, the rate per annum equal to the semiannual Yield to Maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
“
Yield to Maturity
” means the yield to maturity on the Notes, calculated at the time
of issuance of the Notes, and calculated in accordance with accepted financial practice.
(c) Any prepayment pursuant to this
paragraph shall be made pursuant to the provisions of Sections 11.1 through 11.6 of the Indenture.
6.
Mandatory
Redemption
. The Issuer shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
7.
Notice of Redemption
. Notices of redemption shall be mailed at least 30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered
address. Notes in denominations larger than $2,000 may be redeemed in part but only in integral multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date interest shall cease to accrue on
Notes or portions thereof called for redemption.
8.
Denominations, Transfer, Exchange
. The Notes are in registered form without
coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. This Note shall represent the aggregate principal amount of Outstanding Notes from time to time endorsed hereon and the aggregate principal amount of Notes
represented hereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee
may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer need not exchange or
register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Issuer need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.
9.
Persons Deemed Owners
. The registered Holder of a Note may be treated as its owner for all purposes.
10.
Amendment, Supplement and Waiver
. Subject to certain exceptions, the Issuer and the Trustee may amend or supplement the Indenture or the Notes with the consent of the Holders of at least a
majority in principal amount of the Notes, including Additional Notes, if any then Outstanding, voting as a single class (including consents obtained in connection with a purchase of or tender offer or exchange offer for the Notes), and, subject to
Section 4.10 of the Indenture, any existing Default or Event of Default (except a continuing Default or Event of Default (i) in the payment of principal, premium, if any, interest, if any, on the Notes and (ii) in respect of a
covenant or provision which under the Indenture cannot be modified or amended without the consent of the Holder of each Note affected by such modification or amendment) or compliance with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of at least a majority in principal amount of the Notes, including Additional Notes, if any, then Outstanding voting as a single class (including consents obtained in connection with a purchase of or tender offer or
exchange offer for the Notes). Without the consent of any Holder, the Issuer and the Trustee may amend or supplement the Indenture or the Notes: (a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Notes any
property or assets; (b) to evidence the succession of another Person to the Issuer, or successive successions, and the assumption by the successor Person of the covenants, agreements and obligations of the Issuer pursuant to Article Eight of
the Indenture; (c) to add to the covenants of the Issuer such further covenants, restrictions, conditions or provisions as the Issuer and the Trustee shall consider to be for the protection of the Holders of Notes, and to make the occurrence,
or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set
forth; 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 an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate
principal amount of the Notes of such series to waive such an Event of Default; (d) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental indenture, or to make any other provisions as the Issuer may deem necessary or desirable, provided that no such
action shall materially adversely affect the interests of the Holders of the Notes; (e) to establish the form or terms of the Notes or Additional Notes appertaining to such Notes or Additional Notes; and (f) to evidence and provide for the
acceptance of appointment hereunder by a successor trustee with respect to the Notes 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, pursuant to the requirements of Section 5.10 of the Indenture.
11.
Defaults and Remedies
. Each of the following constitutes an Event of Default with respect to the Notes: default in the payment of any installment of interest upon any of the Notes as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or default in the payment of all or any part of the principal on any of the Notes as and when the same shall become due and payable either at maturity, upon any redemption, by declaration or
otherwise; or default in the performance, or breach, of any covenant or warranty of the Issuer in respect of the Notes and continuance of such default or breach for a period of 60 days (or 180 days in the case of a Reporting Failure) after there has
been given, by registered or certified mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Notes, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or either (1) default in payment of any Indebtedness of the Issuer or any Subsidiary of the Issuer within any applicable grace period after
final maturity or (2) the acceleration of Indebtedness of the Issuer or any Subsidiary of the Issuer by the holders thereof because of a default and, in either case, the total amount of the Indebtedness unpaid or accelerated exceeds $25.0
million; or the entry of a decree or order by a court having jurisdiction in the premises adjudging the Issuer or any Significant Subsidiary as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization arrangement,
adjustment or composition of or in respect of the Issuer or any Significant Subsidiary under the federal bankruptcy law or any other applicable federal or state law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Issuer or any Significant Subsidiary or for any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or the institution by the Issuer or any Significant Subsidiary of proceedings to be adjudicated as bankrupt or insolvent or the consent by the Issuer or any Significant Subsidiary to the institution of bankruptcy or
insolvency proceedings against it, or the filing by the Issuer or any Significant Subsidiary of a petition or answer or consent seeking reorganization or relief under the federal bankruptcy law or any other applicable federal or state law, or the
consent by the Issuer or any Significant Subsidiary to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Issuer or any Significant Subsidiary or for
any substantial part of its property, or the making by the Issuer or any Significant Subsidiary of any general assignment for the benefit of creditors; provided, however, that the occurrence of any of the events described in clause (c) of
Section 4.1 of the Indenture shall not constitute an Event of Default if such occurrence is the result of changes in generally accepted accounting principles as recognized by the American Institute of Certified Public Accountants at the date as
of which this Indenture is executed and a certificate to such effect is delivered to the Trustee by the Issuer’s independent public accountants
If an Event of Default described in clauses (a), (b), (c) or (d) of
Section 4.1 of the Indenture occurs and is continuing, then, and in each and every such case, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Notes then Outstanding under the Indenture by notice in
writing to the Issuer (and to the Trustee if given by Holders), may declare the entire principal of all Notes, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same shall become
immediately due and payable. If an Event of Default described in clause (e) or (f) of Section 4.1 of the Indenture occurs and is continuing, then and in each and every such case, unless the principal of all the Notes shall have
already become due and payable, the entire principal of all of the Notes then Outstanding, and interest accrued thereon, if any, will become immediately due and payable without any declaration of acceleration or other act on the part of the Trustee
or any Holders.
The foregoing provisions, however, are subject to the condition that if, at any time after the principal of
the Notes shall have been so declared due and payable or become automatically due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Issuer shall pay or
shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all the Notes and the principal of any and all Notes which shall have become due otherwise than by acceleration (with interest upon such principal and,
to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest specified in the Notes to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee and their agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith, and if any and all Events of Default under the Indenture, other than the non-payment of the principal of Notes which shall have become due by acceleration, shall have been cured, waived or otherwise
remedied as provided herein, then and in every such case the Holders of a majority in aggregate principal amount of all the Notes then Outstanding, by written notice to the Issuer and to the Trustee, may waive all defaults with respect to each such
series (or with respect to all the Notes, as the case may be) and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any
right consequent thereon.
12.
Trustee Dealings with Issuer
. Subject to certain limitations, the Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee.
13.
No Recourse Against Others
. No past, present or future director, officer, employee, incorporator or sponsor, member, partner
or holder of equity interest of the Issuer, as such, shall have any liability for any obligations of the Issuer under the Indenture, the Notes or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder
by accepting a Note waives and releases all such liability.
14.
Authentication
. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
15.
Abbreviations
. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
16.
CUSIP Numbers
. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the
Issuer has caused CUSIP numbers to be printed on the Notes and has directed the Trustee to use CUSIP numbers in notices of redemption or notices of Offers to Purchase as a convenience to Holders. No representation is made as to the correctness of
such numbers either as printed on the Notes or as contained in any notice of redemption or notice of an offer to purchase and reliance may be placed only on the other identification numbers printed thereon and any such redemption or offer to
purchase shall not be affected by any defect in or omission of such numbers.
17.
Governing Law
. The law of the State
of New York shall govern and be used to construe this Note.
18.
Additional Rights of Holders of Restricted Global Notes
and Restricted Definitive Notes
. In addition to the rights provided to Holders under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes shall have all the rights and obligations set forth in the Registration Rights
Agreement. By any such Holder’s acceptance of Restricted Global Notes or Restricted Definitive Notes, such Holder acknowledges and agrees to the provisions of the applicable Registration Rights Agreement, including, without limitation, the
obligations of the Holders with respect to indemnification of the Issuers to the extent provided therein.
The Issuer shall
furnish to any Holder upon written request and without charge a copy of the Indenture and/or the Registration Rights Agreement. Requests may be made to: Gulf South Pipeline Company, LP, 9 Greenway Plaza, Suite 2800, Houston, TX 77046, Attn: General
Counsel, Facsimile No.: (866) 459-7336.
Assignment Form
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
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(Insert assignee’s social security or other tax I.D. no.)
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(Print or type assignee’s name, address and zip code)
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and irrevocably appoint
as agent to transfer this Note on the books of the Issuer. The
agent may substitute another to act for him.
Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
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Signature Guarantee:
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Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in
the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a
part of another Global Note or Definitive Note for an interest in this Global Note, have been made:
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Date of Exchange
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Amount of
decrease in Principal
Amount
of this Global Note
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Amount of increase
in Principal
Amount of this Global Note
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Principal Amount of this
Global Note following
such decrease (or
increase)
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Signature of authorized
signatory of Trustee or
Note Custodian
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EXHIBIT A-2
(Face of Regulation S Temporary Global Note)
4.000% NOTES DUE 2022
GULF SOUTH PIPELINE COMPANY, LP
promises to pay to
, or its registered assigns, the principal sum of
U.S. Dollars ($
) on June 15, 2022.
Interest Payment Dates: June 15 and December 15, commencing December 15, 2012
Record Dates: June 1 and December 1
IN WITNESS WHEREOF, the Issuer has
caused this Note to be signed by its duly authorized officer.
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GULF SOUTH PIPELINE COMPANY, LP
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By:
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GS Pipeline Company, LLC, its general partner
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By:
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Name:
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Title:
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This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
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Dated:
,
20
(Back of Regulation S Temporary Global Note)
4.000% NOTES DUE 2022
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
[THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING ITS NOTE IN AN “OFFSHORE TRANSACTION” PURSUANT TO RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS ONE YEAR (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY
RULE 144(d) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF
THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE “RESALE RESTRICTION TERMINATION DATE”), OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE ISSUER,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A
INSIDE THE UNITED STATES, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE ISSUER, THE TRUSTEE AND THE REGISTRAR SHALL
HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THIS TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS “OFFSHORE
TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.]
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF
THE INDENTURE, (III)THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC). ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
1.
Interest
. Gulf South Pipeline Company, LP, a Delaware limited partnership (the “Issuer”), promises to pay
interest on the principal amount of this Note at 4.000% per annum until maturity. The Issuer shall pay interest semi-annually in arrears in cash on June 15 and December 15 of each year, or if any such day is not a Business Day, on the
next succeeding Business Day (each an “Interest Payment Date”). Interest on the Notes shall accrue from the
most recent date to which interest has been paid or, if no interest has been paid, from June 12, 2012; provided, however, that if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest Payment Date shall be December 15, 2012. The Issuer shall pay
interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time at the interest rate then in effect under the Indenture and this Note; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest, from time to time at the same rate to the extent lawful. Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
2.
Method of Payment
. The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons in
whose name this Note (or one or more Predecessor Notes) is registered at the close of business on June 1 or December 1 preceding the Interest Payment Date, even if such Notes are cancelled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes shall be payable as to principal, premium, if any, and interest at the office or agency of the Issuer maintained for such
purpose, or, at the option of the Issuer, payment of interest may be made by check mailed to the Holders at their addresses set forth in the Security Register; provided, however, that payment by wire transfer of immediately available funds shall be
required with respect to principal of and interest and premium, if any, on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Issuer or the Paying Agent. Such payment shall be in such
coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
3.
Paying Agent and Registrar
. Initially, The Bank of New York Mellon Trust Company, N.A., the Trustee under the Indenture, shall act as Paying Agent and Registrar. The Issuer may change any Paying
Agent or Registrar without notice to any Holder. The Issuer or any of its Subsidiaries may act in any such capacity.
4.
Indenture
. The Issuer issued the Notes evidenced hereby under an Indenture, dated as of June 12, 2012, between the Issuer and the Trustee (the “Indenture”). The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
5.
Optional Redemption
.
(a) The Notes will be redeemable as a whole or in
part, at the option of the Issuer at any time prior to the date that is 90 days prior to June 15, 2022 at a redemption price determined by the Issuer equal to the greater of (i) 100% of the principal amount of such Notes and (ii) the
sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 37.5
basis points, plus in each case accrued interest thereon to the date of redemption.
(b) The Notes will be redeemable as a whole or in part, at the option of the Issuer at any
time on or after the date that is 90 days prior to June 15, 2022 at a redemption price determined by the Issuer equal to 100% of the principal amount of such Notes, plus accrued interest thereon to the date of redemption.
For purposes of this Note the following terms shall have the meaning specified.
“
Comparable Treasury Issue
” means the United States Treasury security selected by an Independent Investment Banker as
having a maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Notes.
“
Comparable Treasury Price
” means, with respect to any
redemption date, (i) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if the Issuer obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such Quotations.
“
Independent Investment Banker
”
means one of the Reference Treasury Dealers appointed by the Issuer.
“
Reference Treasury Dealer
” means each
of Barclays Capital Inc. and J.P. Morgan Securities LLC. If any of the Reference Treasury Dealers resigns, the successor dealer shall be a primary U.S. Government securities dealer in New York City selected by the Issuer.
“
Reference Treasury Dealer Quotations
” means, with respect to each Reference Treasury Dealer and any redemption date,
the average, as determined by the Issuer, of the bid and ask prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Issuer by such Reference Treasury Dealer at 5:00 p.m. on
the third business day preceding such redemption date.
“
Treasury Rate
” means, with respect to any redemption
date, the rate per annum equal to the semiannual Yield to Maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
“
Yield to Maturity
” means the yield to maturity on the Notes, calculated at the time
of issuance of the Notes, and calculated in accordance with accepted financial practice.
(c) Any prepayment pursuant to this
paragraph shall be made pursuant to the provisions of Sections 11.1 through 11.6 of the Indenture.
6.
Mandatory
Redemption
. The Issuer shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
7.
Notice of Redemption
. Notices of redemption shall be mailed at least 30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered
address. Notes in denominations larger than $2,000 may be redeemed
in part but only in integral multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date interest shall cease to accrue on Notes or portions
thereof called for redemption.
8.
Denominations, Transfer, Exchange
. The Notes are in registered form without coupons
in denominations of $2,000 and integral multiples of $1,000 in excess thereof. This Note shall represent the aggregate principal amount of Outstanding Notes from time to time endorsed hereon and the aggregate principal amount of Notes represented
hereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer need not exchange or register the transfer
of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Issuer need not exchange or register the transfer of any Notes for a period of 15 days before a selection of
Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.
9.
Persons
Deemed Owners
. The registered Holder of a Note may be treated as its owner for all purposes.
10.
Amendment, Supplement
and Waiver
. Subject to certain exceptions, the Issuer and the Trustee may amend or supplement the Indenture or the Notes with the consent of the Holders of at least a majority in principal amount of the Notes, including Additional Notes, if any
then Outstanding, voting as a single class (including consents obtained in connection with a purchase of or tender offer or exchange offer for the Notes), and, subject to Section 4.10 of the Indenture, any existing Default or Event of Default
(except a continuing Default or Event of Default (i) in the payment of principal, premium, if any, interest, if any, on the Notes and (ii) in respect of a covenant or provision which under the Indenture cannot be modified or amended
without the consent of the Holder of each Note affected by such modification or amendment) or compliance with any provision of the Indenture or the Notes may be waived with the consent of the Holders of at least a majority in principal amount of the
Notes, including Additional Notes, if any, then Outstanding voting as a single class (including consents obtained in connection with a purchase of or tender offer or exchange offer for the Notes). Without the consent of any Holder, the Issuer and
the Trustee may amend or supplement the Indenture or the Notes: (a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Notes any property or assets; (b) to evidence the succession of another Person to the
Issuer, or successive successions, and the assumption by the successor Person of the covenants, agreements and obligations of the Issuer pursuant to Article Eight of the Indenture; (c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer and the Trustee shall consider to be for the protection of the Holders of Notes, and to make the occurrence, or the occurrence and continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; 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 an Event of Default
or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount of the Notes of such series to
waive such an Event of Default; (d) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make any other provisions as the Issuer may deem necessary or desirable, provided that no such action shall materially adversely affect the interests of the Holders of the Notes; (e) to establish the form or terms
of the Notes or Additional Notes appertaining to such Notes or Additional Notes; and (f) to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Notes 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, pursuant to the requirements of Section 5.10 of the Indenture.
11.
Defaults and Remedies
. Each of the following constitutes an Event of Default with respect to the Notes: default in the payment
of any installment of interest upon any of the Notes as and when the same shall become due and payable, and continuance of such default for a period of 30 days; or default in the payment of all or any part of the principal on any of the Notes as and
when the same shall become due and payable either at maturity, upon any redemption, by declaration or otherwise; or default in the performance, or breach, of any covenant or warranty of the Issuer in respect of the Notes and continuance of such
default or breach for a period of 60 days (or 180 days in the case of a Reporting Failure) after there has been given, by registered or certified mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Notes, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or either (1) default in payment
of any Indebtedness of the Issuer or any Subsidiary of the Issuer within any applicable grace period after final maturity or (2) the acceleration of Indebtedness of the Issuer or any Subsidiary of the Issuer by the holders thereof because of a
default and, in either case, the total amount of the Indebtedness unpaid or accelerated exceeds $25.0 million; or the entry of a decree or order by a court having jurisdiction in the premises adjudging the Issuer or any Significant Subsidiary as
bankrupt or insolvent, or approving as properly filed a petition seeking reorganization arrangement, adjustment or composition of or in respect of the Issuer or any Significant Subsidiary under the federal bankruptcy law or any other applicable
federal or state law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Issuer or any Significant Subsidiary or for any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or the institution by the Issuer or any Significant Subsidiary of proceedings to be adjudicated as bankrupt or
insolvent or the consent by the Issuer or any Significant Subsidiary to the institution of bankruptcy or insolvency proceedings against it, or the filing by the Issuer or any Significant Subsidiary of a petition or answer or consent seeking
reorganization or relief under the federal bankruptcy law or any other applicable federal or state law, or the consent by the Issuer or any Significant Subsidiary to the filing of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Issuer or any Significant Subsidiary or for any substantial part of its property, or the making by the Issuer or any Significant Subsidiary of any general assignment for the benefit
of creditors; provided, however, that the occurrence of any of the events described in clause (c) of Section 4.1
of the Indenture shall not constitute an Event of Default if such occurrence is the result of changes in generally accepted accounting principles as recognized by the American Institute of
Certified Public Accountants at the date as of which this Indenture is executed and a certificate to such effect is delivered to the Trustee by the Issuer’s independent public accountants
If an Event of Default described in clauses (a), (b), (c) or (d) of Section 4.1 of the Indenture occurs and is continuing,
then, and in each and every such case, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Notes then Outstanding under the Indenture by notice in writing to the Issuer (and to the Trustee if given by
Holders), may declare the entire principal of all Notes, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same shall become immediately due and payable. If an Event of Default described
in clause (e) or (f) of Section 4.1 of the Indenture occurs and is continuing, then and in each and every such case, unless the principal of all the Notes shall have already become due and payable, the entire principal of all of the
Notes then Outstanding, and interest accrued thereon, if any, will become immediately due and payable without any declaration of acceleration or other act on the part of the Trustee or any Holders.
The foregoing provisions, however, are subject to the condition that if, at any time after the principal of the Notes shall have been so
declared due and payable or become automatically due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Issuer shall pay or shall deposit with the Trustee
a sum sufficient to pay all matured installments of interest upon all the Notes and the principal of any and all Notes which shall have become due otherwise than by acceleration (with interest upon such principal and, to the extent that payment of
such interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest specified in the Notes to the date of such payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor Trustee and their agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith, and if any and all Events of Default under the Indenture, other than the non-payment of the principal of Notes which shall have become due by acceleration, shall have been cured, waived or otherwise remedied as provided
herein, then and in every such case the Holders of a majority in aggregate principal amount of all the Notes then Outstanding, by written notice to the Issuer and to the Trustee, may waive all defaults with respect to each such series (or with
respect to all the Notes, as the case may be) and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent
thereon.
12.
Trustee Dealings with Issuer
. Subject to certain limitations, the Trustee in its individual or any other
capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee.
13.
No Recourse Against Others
. No past, present or future director, officer, employee, incorporator or sponsor, member, partner
or holder of equity interest of the Issuer, as such, shall have any liability for any obligations of the Issuer under the Indenture, the Notes or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder
by accepting a Note waives and releases all such liability.
14.
Authentication
. This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
15.
Abbreviations
. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
16.
CUSIP Numbers
. Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes and has directed the Trustee to use CUSIP numbers in notices of redemption or notices of Offers to Purchase as a convenience to Holders. No representation is
made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of redemption or notice of an offer to purchase and reliance may be placed only on the other identification numbers printed thereon and any such
redemption or offer to purchase shall not be affected by any defect in or omission of such numbers.
17.
Governing Law
.
The law of the State of New York shall govern and be used to construe this Note.
18.
Additional Rights of Holders of
Restricted Global Notes and Restricted Definitive Notes
. In addition to the rights provided to Holders under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes shall have all the rights and obligations set forth in
the Registration Rights Agreement. By any such Holder’s acceptance of Restricted Global Notes or Restricted Definitive Notes, such Holder acknowledges and agrees to the provisions of the applicable Registration Rights Agreement, including,
without limitation, the obligations of the Holders with respect to indemnification of the Issuers to the extent provided therein.
The Issuer shall furnish to any Holder upon written request and without charge a copy of the Indenture and/or the Registration Rights Agreement. Requests may be made to: Gulf South Pipeline Company, LP, 9
Greenway Plaza, Suite 2800, Houston, TX 77046, Attn: General Counsel, Facsimile No.: (866) 459-7336.
Assignment Form
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
(Insert assignee’s social security or other tax I.D. no.)
(Print or type assignee’s
name, address and zip code)
and irrevocably appoint
as agent to transfer this Note on the books of the Issuer. The
agent may substitute another to act for him.
Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
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Signature Guarantee:
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Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in
the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a
part of another Global Note or Definitive Note for an interest in this Global Note, have been made:
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Date of Exchange
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Amount of
decrease in
Principal Amount
of this Global Note
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Amount of increase
in Principal
Amount of this
Global Note
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Principal Amount
of this Global Note
following such
decrease
(or
increase)
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Signature of
authorized
signatory of
Trustee or Note
Custodian
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EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
GULF SOUTH PIPELINE COMPANY, LP
9 Greenway Plaza, Suite 2800
Houston, Texas
77046
Attn: Jamie Buskill, Chief Financial Officer
The Bank of New York Mellon Trust Company, N.A.
2 North LaSalle St., Suite 1020
Chicago, IL 60602
Attn: Corporate Trust
Administration
Facsimile No.: (312) 827-8542
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Re:
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4.000% Notes due 2022
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Reference is hereby made to the Indenture, dated as of June 12, 2012 (the “Indenture”), among Gulf South Pipeline Company,
LP, as issuer (the “Issuer”) and The Bank of New York Mellon Trust Company, N.A., as Trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
, (the “Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $ in such
Note[s] or interests (the “Transfer”‘), to (the
“Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1.
¨
Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Definitive Note Pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the “Securities Act’), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believed and believes is
purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional
buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
2.
¨
Check if
Transferee will take delivery of a beneficial interest in the Regulation S Global Note or a Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act
and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made
in contravention of the requirements of Rule 903(b) or Rule 904(a) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Distribution Compliance Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global
Note, the Temporary Regulation S Global Note and/or the Definitive Note and in the Indenture and the Securities Act.
3.
¨
Check and complete if Transferee will take delivery of a Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance
with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that (check one):
(a)
¨
such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
(b)
¨
such Transfer is being
effected to the Issuer or a Subsidiary thereof;
or
(c)
¨
such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus
delivery requirements of the Securities Act.
4.
¨
Check if Transferee will
take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a)
¨
Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(b)
¨
Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(c)
¨
Check if Transfer is Pursuant to
Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
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[Insert Name of Transferor]
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By:
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Name:
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Title:
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ANNEX A TO CERTIFICATE OF TRANSFER
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1.
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The Transferor owns and proposes to transfer the following:
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[CHECK ONE OF (a) OR (b)]
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(a)
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a beneficial interest in the:
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(i)
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144A Global Note (CUSIP), or
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(ii)
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Regulation S Global Note (CUSIP), or
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(b)
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a Restricted Definitive Note.
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2.
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After the Transfer the Transferee will hold:
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[CHECK ONE OF (a), (b) OR (c)]
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(a)
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a beneficial interest in the:
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(i)
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144A Global Note (CUSIP), or
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(ii)
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Regulation S Global Note (CUSIP), or
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(iii)
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Unrestricted Global Note (CUSIP), or
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(b)
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¨
a Restricted Definitive Note; or
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(c)
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¨
an Unrestricted Definitive Note,
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in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
GULF SOUTH PIPELINE COMPANY, LP
9 Greenway Plaza, Suite 2800
Houston, Texas
77046
Attn: Jamie Buskill, Chief Financial Officer
The Bank of New York Mellon Trust Company, N.A.
2 North LaSalle St., Suite 1020
Chicago, IL 60602
Attn: Corporate Trust
Administration
Facsimile No.: (312) 827-8542
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Re:
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4.000% Notes due 2022
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Reference
is hereby made to the Indenture, dated as of June 12, 2012 (the “Indenture”), among Gulf South Pipeline Company, LP, as issuer (the “Issuer”), and The Bank of New York Mellon Trust Company, N.A., as Trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the Indenture.
, (the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $
in such
Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
1.
Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note
(a)
¨
Check if Exchange is from beneficial interest in a Restricted Global Note to
beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Note
and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(b)
¨
Check if Exchange is from beneficial interest in a Restricted Global Note to
Unrestricted Definitive Note. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s
own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Note and pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
(c)
¨
Check if Exchange
is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(d)
¨
Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owner’s Exchange of a Restricted
Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required
in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or
Beneficial Interests in Restricted Global Notes
(a)
¨
Check if Exchange is
from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount,
the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive
Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
(b)
¨
Check if Exchange is from Restricted
Definitive Note to beneficial interest in a Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CIRCLE ONE] 144A Global Note, Regulation S Global Note, with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Definitive Note and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the
Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
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[Insert Name of Transferor]
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By:
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Name:
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Title:
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Dated:
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Exhibit 4.2
Execution Copy
REGISTRATION RIGHTS AGREEMENT
dated as of June 12, 2012 among
GULF SOUTH PIPELINE COMPANY, LP
and
BARCLAYS CAPITAL INC.
J.P. MORGAN SECURITIES LLC
on behalf of themselves and the Initial
Purchasers listed on Schedule I hereto
THIS REGISTRATION RIGHTS AGREEMENT (the “
Agreement
”) is made and entered
into as of June 12, 2012, among Gulf South Pipeline Company, LP (the “
Partnership
”), a limited partnership duly organized and existing under the laws of the State of Delaware, GS Pipeline Company, LLC (the “
General
Partner
” and, together with Partnership, the “
Partnership Parties
”), a Delaware limited liability company, and Barclays Capital Inc. and J.P. Morgan Securities LLC, each acting on behalf of themselves and the several
initial purchasers listed on Schedule I hereto (the “
Initial Purchasers
”).
This Agreement is made pursuant
to the Purchase Agreement dated as of June 7, 2012, among the Partnership Parties and Barclays Capital Inc. and J.P. Morgan Securities LLC, as representatives of the Initial Purchasers (the “
Purchase Agreement
”), which provides
for the sale by the Partnership to the Initial Purchasers of $300,000,000 aggregate principal amount of its 4.000% Senior Notes due 2022 (the “
Notes
”). The Notes are to be issued pursuant to the provisions of an Indenture dated the
date hereof (as amended, supplemented or otherwise modified from time to time, the “
Indenture
”) by and among the Partnership and The Bank of New York Mellon Trust Company, N.A., as trustee (the “
Trustee
”).
In order to induce the Initial Purchasers to enter into the Purchase Agreement, the Partnership Parties have agreed to
provide to each Initial Purchaser and its direct and indirect transferees the registration rights with respect to the Notes set forth in this Agreement. The execution of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1.
Definitions.
As used in this Agreement, the following capitalized defined terms have the following meanings:
“
1933 Act
” shall mean the Securities Act of 1933, as amended, including the rules and regulations promulgated thereunder.
“
1934 Act
” shall mean the Securities Exchange Act of 1934, as amended, including the rules and regulations promulgated
thereunder.
“
Additional Interest
” shall have the meaning set forth in Section 2(d).
“
Agreement
” shall have the meaning set forth in the preamble.
“
Business Day
” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York are
authorized by law to remain closed.
“
Closing Date
” shall mean the Closing Date as defined in the Purchase
Agreement.
“
Commission
” shall mean the U.S. Securities and Exchange Commission.
“
Exchange Dates
” shall have the meaning set forth in Section 2(a)(ii).
“
Exchange Offer Registration
” shall mean a registration under the 1933 Act
effected pursuant to Section 2(a) hereof.
“
Exchange Offer Registration Statement
” shall mean a
registration statement on Form S-4 (or, if applicable, on another appropriate form) relating to an offering of Exchange Notes pursuant to a Registered Exchange Offer and all amendments and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
“
Exchange Notes
” shall mean any securities issued by the Partnership to be offered to Holders in exchange for Notes
(pursuant to the Registered Exchange Offer or otherwise) pursuant to an Exchange Offer Registration Statement, containing terms identical to the Notes for which they are exchanged except that (i) interest thereon shall accrue from the last date
on which interest was paid on the Notes or, if no such interest has been paid, from the date of issuance of the Notes, and (ii) the Exchange Notes will not contain the legend appearing on the face of the Notes in the form recited in the
Indenture and will not contain terms with respect to transfer restrictions or Additional Interest.
“
General
Partner
” shall have the meaning set forth in the preamble.
“
Holder
” shall mean each Initial
Purchaser, for so long as it owns any Transfer Restricted Notes, and each of its successors, assigns and direct and indirect transferees who become registered owners of Transfer Restricted Notes under the Indenture;
provided
that for purposes
of Sections 4 and 5 of this Agreement, the term “
Holder
” shall include Participating Broker-Dealers (as defined in Section 4(a)).
“
Indemnified Party
” shall have the meaning set forth in Section 5(c).
“
Indemnifying Party
” shall have the meaning set forth in Section 5(c).
“
Indenture
” shall have the meaning set forth in the preamble.
“
Initial Purchasers
” shall have the meaning set forth in the preamble.
“
Majority Holders
” shall mean the Holders of a majority of the aggregate principal amount of outstanding Transfer
Restricted Notes;
provided
that, for purposes of Section 6(b), whenever the consent or approval of Holders of a specified percentage of Transfer Restricted Notes is required hereunder, Transfer Restricted Notes held by the Partnership or
any of its affiliates (as such term is defined in Rule 405 under the 1933 Act) (other than the Initial Purchasers or subsequent Holders of Transfer Restricted Notes if such subsequent Holders are deemed to be such affiliates solely by reason of
their holding of such Transfer Restricted Notes) shall not be considered outstanding and shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage or amount.
“
Notes
” shall have the meaning set forth in the preamble.
“
Participant
” shall have the meaning set forth in Section 5(a).
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“
Participating Broker-Dealer
” shall have the meaning set forth in
Section 4(a) hereof.
“
Partnership
” shall have the meaning set forth in the preamble and also includes
the Partnership’s successors.
“
Partnership Parties
” shall have the meaning set forth in the preamble.
“
Person
” shall mean an individual, partnership, limited liability company, corporation, trust or
unincorporated organization, or a government or agency or political subdivision thereof.
“
Prospectus
” shall
mean the prospectus included in a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the
offering of any portion of the Transfer Restricted Notes covered by a Shelf Registration Statement, and by all other amendments and supplements to such prospectus, and in each case including all material incorporated by reference therein.
“
Purchase Agreement
” shall have the meaning set forth in the preamble.
“
Registration Default
” shall have the meaning set forth in Section 2(e).
“
Registered Exchange Offer
” shall mean the exchange offer by the Partnership of Exchange Notes for all Notes that are
Transfer Restricted Notes pursuant to Section 2(a) hereof.
“
Registration Expenses
” shall mean any and
all expenses incident to performance of or compliance by the Partnership with this Agreement, including without limitation: (i) all Commission, stock exchange or Financial Industry Regulatory Authority (“
FINRA
”) registration
and filing fees, including if applicable, the fees and expenses of any “qualified independent underwriter” required to be retained by any holder of Transfer Restricted Notes in accordance with the rules and regulations of FINRA,
(ii) all fees and expenses incurred in connection with compliance with state securities or blue sky laws (including reasonable fees and disbursements of counsel for any underwriters or Holders in connection with blue sky qualification of any of
the Exchange Notes or Transfer Restricted Notes), (iii) all expenses of any Person in preparing or assisting in preparing, word processing, printing and distributing any Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements and other documents relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees and disbursements of counsel for the Partnership and, in the case of a Shelf Registration
Statement, the reasonable fees and disbursements of one counsel for the Holders (which counsel shall be selected by the Majority Holders and which counsel may also be counsel for the Initial Purchasers) and (viii) the fees and disbursements of
the independent public accountants of the Partnership, including the expenses of any special audits or “comfort” letters required by or incident to such performance and compliance, but excluding fees of counsel to the Underwriters (other
than the fees and expenses set forth in clause (ii) above) and the Holders and underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of Transfer Restricted Notes by a Holder.
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“Registration Statement”
shall mean any registration statement of the
Partnership that covers any of the Exchange Notes or the Transfer Restricted Notes pursuant to the provisions of this Agreement and all amendments and supplements to any such Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
“
Shelf Registration
” shall mean a registration effected pursuant to Section 2(b) hereof.
“
Shelf Registration Statement
” shall mean a “shelf” registration statement of the Partnership pursuant to the
provisions of Section 2(b) of this Agreement which covers all of the Transfer Restricted Notes (but no other securities unless approved by the Holders of a majority of the aggregate principal amount of outstanding Transfer Restricted Notes that
are covered by such Shelf Registration Statement) on an appropriate form under Rule 415 under the 1933 Act, or any similar rule that may be adopted by the Commission, and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
“
Suspension Period
” shall have the meaning set forth in Section 2.
“
TIA
” shall mean the Trust Indenture Act of 1939, as amended.
“
Transfer Restricted Notes
” shall mean each outstanding Note until: (i) in the case of a Holder who was entitled to
participate in the Registered Exchange Offer, an Exchange Offer Registration Statement with respect to such Note shall have been declared effective under the 1933 Act and either (a) such Note shall have been exchanged by a Person other than a
broker-dealer for an Exchange Note in the Registered Exchange Offer or (b) the Registered Exchange Offer shall have been consummated and such Note was not tendered by the Holder thereof in the Registered Exchange Offer; (ii) following the
exchange by a broker-dealer in the Registered Exchange Offer of a Note for an Exchange Note, the date on which such Exchange Note is sold to a purchaser who receives from such broker-dealer on or prior to the date of such sale a copy of the
Prospectus contained in the Exchange Offer Registration Statement; (iii) the date on which such Note has been effectively registered under the 1933 Act and disposed of in accordance with the Shelf Registration Statement; or (iv) the date
that is two years after the date of this Agreement.
“
Trustee
” shall have the meaning set forth in the
preamble.
“
Underwriter
” shall have the meaning set forth in Section 3 hereof.
“
Underwritten Registration
or
Underwritten Offering
” shall mean a registration in which Transfer Restricted Notes
are sold to an Underwriter for reoffering to the public.
2.
Registration under the 1933 Act.
(a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the Commission, the
Partnership shall (1) file an Exchange Offer Registration Statement after the Closing Date registering the offer by the
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Partnership to the Holders to exchange all of the Transfer Restricted Notes for an equal aggregate principal amount of Exchange Notes and (2) use its commercially reasonable efforts to cause
such Exchange Offer Registration Statement to be declared effective on or prior to 360 days after the Closing Date. The Partnership shall use its commercially reasonable efforts to have the Exchange Offer Registration Statement remain effective
until the closing of the Registered Exchange Offer. The Partnership shall commence the Registered Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the Commission and use its commercially
reasonable efforts to have the Registered Exchange Offer consummated (by issuing Exchange Notes for all tendered, and not validly withdrawn, Transfer Restricted Notes) not later than 30 Business Days, or longer, if required by the federal securities
laws, after such effective date. The Partnership shall commence the Registered Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required
by applicable law:
(i) that the Registered Exchange Offer is being made pursuant to this Registration Rights
Agreement and that all Transfer Restricted Notes validly tendered will be accepted for exchange;
(ii) the
dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailed) (the “
Exchange Dates
”);
(iii) that any Transfer Restricted Note not tendered will remain outstanding and continue to accrue interest, but will not
retain any rights under this Agreement;
(iv) that Holders electing to have a Transfer Restricted Note
exchanged pursuant to the Registered Exchange Offer will be required to surrender such Transfer Restricted Note, together with the enclosed letters of transmittal, to the institution and at the address specified in the notice prior to the close of
business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not
later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice, a telegram, telex, facsimile transmission or letter
setting forth the name of such Holder, the principal amount of Transfer Restricted Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Transfer Restricted Notes exchanged.
As soon as practicable after the last Exchange Date, the Partnership shall:
(A) accept for exchange Transfer Restricted Notes or portions thereof tendered and not validly withdrawn pursuant to the
Registered Exchange Offer; and
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(B) deliver, or cause to be delivered, to the Trustee for cancellation all
Transfer Restricted Notes or portions thereof so accepted for exchange by the Partnership and issue and cause the Trustee to promptly authenticate and deliver to each Holder an Exchange Note equal in aggregate principal amount to the aggregate
principal amount of the Transfer Restricted Notes surrendered by such Holder.
The Partnership shall use its
commercially reasonable efforts to complete the Registered Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Registered
Exchange Offer. The Registered Exchange Offer shall not be subject to any conditions, other than that the Registered Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the Commission and such other
conditions as are customary for similar exchange offers registered with the Commission on Form S-4. The Partnership shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Registered Exchange Offer is made, and the
Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Transfer Restricted Notes in the Registered Exchange Offer.
If, during the period the Exchange Offer Registration Statement is effective, an event occurs which makes any statement
made in such Exchange Offer Registration Statement or the related Prospectus untrue in any material respect or which requires the making of any changes in such Exchange Offer Registration Statement or Prospectus in order to make the statements
therein not misleading, the Partnership shall use its commercially reasonable efforts to, as promptly as practicable, prepare and file with the Commission a supplement or post-effective amendment to the Exchange Offer Registration Statement or the
related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the holders of the Transfer Restricted Notes, such Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Partnership agrees to notify the Holders to suspend the exchange of the
Transfer Restricted Notes as promptly as practicable after the occurrence of such an event, and the Holders hereby agree to suspend such exchange until the Partnership has amended or supplemented the Prospectus to correct such misstatement or
omission.
(b) If (i) the Partnership is not permitted to consummate the Registered Exchange Offer because
the Registered Exchange Offer is not permitted by applicable law or applicable interpretation of the Staff of the Commission; or (ii) any Holder of Transfer Restricted Notes notifies the Partnership prior to the 20th Business Day following the
consummation of the Registered Exchange Offer that: (A) it is prohibited by law or applicable interpretation of the Staff of the Commission from participating in the Registered Exchange Offer, (B) it may not resell the Exchange Notes
acquired by it in the Registered Exchange Offer to the public without delivering a Prospectus and the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales or (C) it is a
broker-dealer and owns Notes acquired directly
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from the Partnership or an affiliate of the Partnership, the Partnership shall (x) use its commercially reasonable efforts to file with the Commission within 90 days after such filing
obligation arises (or, if later, the date by which the Partnership is obligated to file an Exchange Offer Registration Statement) a Shelf Registration Statement providing for the resale by the Holders of Transfer Restricted Notes of all of their
Transfer Restricted Notes;
provided
,
however
, that no Holder of Transfer Restricted Notes entitled to have its Transfer Restricted Notes included in a Shelf Registration Statement shall be entitled to have its Transfer Restricted Notes
included in a Shelf Registration Statement if such Holder has failed to comply with its obligations set forth in Section 3 and (y) use its commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective
by the Commission or to become automatically effective in accordance with the rules and regulations of the Commission on or prior to 180 days after such filing obligation arises (or, if later, the date by which the Partnership is obligated to use
its commercially reasonable efforts to have the Exchange Offer Registration Statement declared effective). Subject to the following paragraph, the Partnership agrees to use its commercially reasonable efforts to keep the Shelf Registration Statement
continuously effective until the date that is two (2) years from the date of this Agreement or such shorter period that will terminate when all of the Transfer Restricted Notes covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement or cease to be Transfer Restricted Notes within the meaning of this Agreement. The Partnership further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Partnership for such Shelf Registration Statement, the 1933 Act or any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to
information relating to such Holder, and to use its commercially reasonable efforts to cause any such amendment to be declared effective by the Commission and such Shelf Registration Statement to become usable as soon as thereafter practicable. The
Partnership agrees to furnish to the Holders of Transfer Restricted Notes copies of any such supplement or amendment promptly after its being used or filed with the Commission.
Notwithstanding anything to the contrary in this Agreement, the Partnership, upon advising the Initial Purchasers and each
Holder, may suspend the use of the Prospectus included in any Shelf Registration Statement for periods of time not to exceed 30 consecutive days and for no more than 60 days during any 365 day period in which such suspensions are in effect (each
such period, a “
Suspension Period
”) if (i) an event or circumstance occurs and is continuing as a result of which the Shelf Registration Statement, the related Prospectus or any document incorporated therein by reference as
then amended or supplemented or proposed to be filed would, in the good faith judgment of the Partnership, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and (ii)(A) the Partnership determines in its good faith judgment that the disclosure of such event at such time would have a material adverse effect on the business, operations
or prospects of the Partnership or (B) the disclosure otherwise relates to a material business transaction or development which has not been publicly disclosed;
provided
,
however
, that upon the termination of such Suspension
Period, the Partnership shall promptly advise the Initial Purchasers and each Holder that such Suspension Period has been terminated.
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(c) The Partnership shall pay all Registration Expenses in connection with
the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts, if any, and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Transfer Restricted
Notes pursuant to a Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the Commission. A Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it
has been declared effective by the Commission or is automatically effective upon filing with the Commission as provided by Rule 462 under the Securities Act.
(e) The Partnership and the Initial Purchasers agree that the Holders will suffer damages if the Partnership fails to fulfill its obligations under Section 2(a) or Section 2(b) hereof and that
it would not be feasible to ascertain the extent of such damages with precision. Accordingly, the Partnership agrees that if:
(i) the Exchange Offer Registration Statement is not declared effective by the Commission on or prior to the 360th day following the Closing Date,
(ii) the Registered Exchange Offer is not completed on or prior to the 30th Business Day following the date the Exchange
Offer Registration Statement is declared effective, or
(iii) a Shelf Registration Statement is required to be
filed but is not filed or declared effective (or does not become automatically effective) within the respective time periods set forth herein or the Shelf Registration Statement is declared effective or becomes effective but thereafter ceases to be
effective or usable (other than during a Suspension Period) prior to the date that is two years after the date of this Agreement other than after the Transfer Restricted Notes being sold thereunder have been disposed of under the Shelf Registration
Statement or cease to be Transfer Restricted Notes, without being succeeded within two Business Days by a post-effective amendment which cures the failure and that is itself immediately declared effective, (each such event referred to in clauses
(i) through (iii) a “
Registration Default
”), Additional Interest (as defined below) will accrue on the affected Transfer Restricted Notes.
If a Registration Default occurs with respect to any Transfer Restricted Notes, the interest rate on the Transfer
Restricted Notes will be increased (“
Additional Interest
”) by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following such Registration Default and (ii) an additional 0.25% per
annum with respect to each subsequent 90-day period, in each case until and including the date such
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Registration Default ends, up to a maximum increase of 1.00% per annum. A Registration Default will end when such Notes cease to be Transfer Restricted Notes or, if earlier, (1) in the
case of a Registration Default under clause (i) of the definition thereof, when the Registered Exchange Offer is completed or when the Shelf Registration Statement covering such Transfer Restricted Notes becomes effective or (2) in the
case of a Registration Default under clause (ii) or clause (iii) of the definition thereof, when the Shelf Registration Statement again becomes effective or the Prospectus again becomes usable. If at any time more than one Registration
Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the
date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.
Anything herein to the contrary notwithstanding, if a Registered Exchange Offer is consummated, any Holder who was, at the time such Registered Exchange Offer was pending and consummated, eligible to
exchange its Notes for Exchange Notes in such Exchange Offer, and withdrew or did not validly tender its Notes, will not be entitled to receive any Additional Interest pursuant to the preceding paragraph, and such Notes will no longer constitute
Transfer Restricted Notes hereunder.
Notwithstanding the foregoing, (1) the amount of Additional Interest
payable shall not increase because more than one Registration Default has occurred and is pending and (2) a Holder of Exchange Notes or a Holder of Transfer Restricted Notes who is not entitled to the benefits of the Shelf Registration
Statement pursuant to Section 2(b) hereof shall not be entitled to Additional Interest with respect to a Registration Default that pertains to the Shelf Registration Statement.
(f) The Partnership shall notify the Trustee within one Business Day after each date on which an event occurs in respect
of which Additional Interest is required to be paid. Any amounts of Additional Interest due pursuant to this Section 2 will be payable in addition to any other interest payable from time to time with respect to the Transfer Restricted Notes in
cash semiannually on the interest payment dates specified in the Indenture (to the holders of record as specified in the Indenture), commencing with the first such interest payment date occurring after any such Additional Interest commences to
accrue. The amount of Additional Interest will be determined in a manner consistent with the calculation of interest under the Indenture.
(g) Without limiting the remedies available to the Holders, the Partnership acknowledges that any failure by the Partnership to comply with its obligations under Section 2(a) and Section 2(b)
hereof may result in material irreparable injury to the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Partnership’s obligations under Section 2(a) and Section 2(b) hereof.
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3.
Registration Procedures.
In connection with the obligations of the Partnership with respect to the Registration Statements pursuant to Section 2(a) and
Section 2(b) hereof, the Partnership shall as expeditiously as possible (
provided, however
, that the Partnership shall not be required to take actions more promptly than required by Sections 2(a) and 2(b)):
(a) prepare and file with the Commission a Registration Statement on the appropriate form under the 1933 Act, which form
shall (i) be selected by the Partnership, (ii) in the case of a Shelf Registration, permit the sale of the Transfer Restricted Notes by the selling Holders thereof and (iii) comply as to form in all material respects with the
applicable requirements of the 1933 Act and include all financial statements required by the Commission to be filed therewith, and use commercially reasonable efforts to cause such Registration Statement to be declared effective by the Commission
and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the Commission such
amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period, cause each Prospectus to be supplemented by any required prospectus supplement and,
as so supplemented, to be filed pursuant to Rule 424 under the 1933 Act and keep each Prospectus current during the period described under Section 4(3) and Rule 174 under the 1933 Act that is applicable to transactions by brokers or dealers
with respect to the Transfer Restricted Notes or Exchange Notes;
(c) in the case of a Shelf Registration,
furnish to each Holder of Transfer Restricted Notes being sold thereunder, to counsel for the Initial Purchasers, to counsel for the Holders and to each Underwriter of an Underwritten Offering of Transfer Restricted Notes, if any, without charge, as
many copies of each Prospectus, including each preliminary Prospectus and any amendment or supplement thereto and such other documents as such Holder or Underwriter may reasonably request, in order to facilitate the public sale or other disposition
of the Transfer Restricted Notes; and, subject to Section 3(i), the Partnership consents to the use of such Prospectus and any amendment or supplement thereto in accordance with applicable law by each of the selling Holders of Transfer
Restricted Notes and any such Underwriters in connection with the offering and sale of the Transfer Restricted Notes covered by and in the manner described in such Prospectus or any amendment or supplement thereto in accordance with applicable law;
(d) use its commercially reasonable efforts to register or qualify the Transfer Restricted Notes being sold
under all applicable state securities or blue sky laws of such jurisdictions as any Holder of Transfer Restricted Notes covered by a Registration Statement shall reasonably request in writing by the time the applicable Registration Statement is
declared effective by the Commission, to cooperate with such Holders in connection with any filings required to be made with FINRA and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder to
consummate the disposition in each such jurisdiction of such Transfer Restricted Notes owned by such Holder;
provided
,
however
, that the Partnership shall not be required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (ii) file any general consent to service of process or (iii) subject itself to taxation in any such jurisdiction if it is
not so subject;
10
(e) in the case of a Shelf Registration, notify each Holder of Transfer
Restricted Notes being registered for resale thereunder, counsel for the Holders and counsel for the Initial Purchasers (or, if applicable, separate counsel for the Holders) promptly and, if requested by any such Holder or counsel, confirm such
notice in writing, (i) when the applicable Shelf Registration Statement has been declared effective or has become automatically effective and when any post-effective amendment thereto has been filed and is declared effective, (ii) of any
request by the Commission or any state securities authority for amendments and supplements to such Shelf Registration Statement and Prospectus or for additional information after such Shelf Registration Statement has become effective, (iii) of
the issuance by the Commission or any state securities authority of any stop order suspending the effectiveness of such Shelf Registration Statement or the initiation of any proceedings for that purpose, (iv) if, between the effective date of
such Shelf Registration Statement and the closing of any sale of Transfer Restricted Notes covered thereby, the Partnership receives any notification with respect to the suspension of the qualification of such Transfer Restricted Notes for sale in
any jurisdiction or the initiation of any proceeding for such purpose, (v) of the happening of any event during the period such Shelf Registration Statement is effective which makes any statement made in such Shelf Registration Statement or the
related Prospectus untrue in any material respect or which requires the making of any changes in such Shelf Registration Statement or Prospectus in order to make the statements therein not misleading, (vi) of any determination by the
Partnership that a post-effective amendment to such Shelf Registration Statement would be appropriate and (vii) of any Suspension Period;
(f) use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement at the earliest possible moment and provide immediate notice to
each Holder of the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each
Holder of Transfer Restricted Notes being registered for resale thereunder, without charge, at least one conformed copy of the applicable Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein
by reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with
the selling Holders of Transfer Restricted Notes to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Notes (if such Notes are certificated) to be sold and not bearing any restrictive legends (unless
required by applicable securities laws) and enable such Transfer Restricted Notes to be in such denominations (consistent with the provisions of the Indenture) and registered in such names as the selling Holders may reasonably request at least two
Business Days prior to the closing of any sale of Transfer Restricted Notes;
11
(i) in the case of a Shelf Registration, upon the occurrence of any event
contemplated by Section 3(e)(v) or (vii) hereof, use its commercially reasonable efforts to prepare and file with the Commission a supplement or post-effective amendment to the applicable Shelf Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Transfer Restricted Notes being sold thereunder, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Partnership agrees to notify the Holders to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an event, and the Holders hereby agree to suspend use of the Prospectus until the Partnership has amended or supplemented the Prospectus to correct such misstatement or omission and
has furnished copies of the amended or supplemented Prospectus to the Holders or until the Partnership notifies the Holders that the sale of such Transfer Restricted Notes may be resumed;
(j) a reasonable time prior to the filing of any Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus (except any amendment or supplement solely to add additional selling securityholders), provide copies of such document to the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) and make such representatives of the Partnership as shall be reasonably requested by the Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Holders or
their counsel) available for discussion of such document, and shall not at any time file or make any amendment to a Registration Statement, any Prospectus or any amendment of or supplement to a Registration Statement or a Prospectus (except any
amendment or supplement solely to add additional selling securityholders) of which the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, the Holders or their counsel) have not been previously advised and
furnished a copy or to which the Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Holders or their counsel) shall reasonably object;
(k) obtain a CUSIP number for all Exchange Notes or Transfer Restricted Notes, as the case may be, not later than the
effective date of the applicable Registration Statement;
(l) cause the Indenture to be qualified under the
TIA, in connection with the registration of the Exchange Notes or Transfer Restricted Notes, as the case may be, and cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and execute, and use commercially reasonable best efforts to cause the Trustee to execute, all documents as may be required to effect such changes and all other forms and documents required to be
filed with the Commission to enable the Indenture to be so qualified in a timely manner;
(m) in the case of a
Shelf Registration, make available for inspection by a representative of the Holders of the Transfer Restricted Notes being registered for resale
12
thereunder, any Underwriter participating in any disposition pursuant to such Shelf Registration Statement, and attorneys and accountants designated by the Holders, at reasonable times and in a
reasonable manner, all financial and other records, pertinent documents and properties of the Partnership and cause the respective officers, directors and employees of the Partnership to supply all information reasonably requested by any such
representative, Underwriter, attorney or accountant in connection with the applicable Shelf Registration Statement, in each case, that would customarily be reviewed or examined in connection with “due diligence” review of the Partnership;
(n) use its commercially reasonable efforts to cause the Exchange Notes to continue to be rated by two
nationally recognized statistical rating organizations (as such term is defined in Rule 436(g)(2) under the 1933 Act), if the Transfer Restricted Notes have been rated;
(o) if reasonably requested by any Holder of Transfer Restricted Notes covered by a Registration Statement,
(i) promptly incorporate in a Prospectus supplement or post-effective amendment such information with respect to such Holder as such Holder reasonably requests to be included therein and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as reasonably practicable after the Partnership has received notification of the matters to be incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into such customary agreements and take all such other actions in
connection therewith (including those reasonably requested by the Holders of a majority of the Transfer Restricted Notes being registered for resale thereunder) in order to expedite or facilitate the disposition of such Transfer Restricted Notes
thereunder including, but not limited to, pursuant to an Underwritten Offering and in such connection, (i) to the extent possible, make such representations and warranties to the Holders and any Underwriters of such Transfer Restricted Notes
with respect to the business of the Partnership, the Registration Statement, Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings and confirm the same if and when requested, (ii) obtain opinions of counsel to the Partnership (which counsel and opinions, in form, scope and substance, shall be reasonably satisfactory to the
Holders of a majority in principal amount of the Transfer Restricted Notes being registered for resale under such Shelf Registration Statement, such Underwriters and their respective counsel) addressed to each selling Holder and Underwriter of
Transfer Restricted Notes, covering the matters customarily covered in opinions requested in underwritten offerings, (iii) obtain “comfort” letters from the independent certified public accountants of the Partnership (and, if
necessary, any other certified public accountant of any subsidiary of the Partnership, or of any business acquired by the Partnership for which financial statements and financial data are or are required to be included in the Registration Statement)
addressed to each selling Holder and Underwriter of Transfer Restricted Notes, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with underwritten offerings, and
(iv) deliver such documents and certificates as may be reasonably requested by the Holders of a majority in principal amount of the
13
Transfer Restricted Notes being registered for resale under the applicable Shelf Registration Statement or by the Underwriters, and which are customarily delivered in underwritten offerings, to
evidence the continued validity of the representations and warranties of the Partnership made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Partnership may require each Holder of Transfer Restricted Notes being registered for
resale thereunder to furnish to the Partnership such information regarding the Holder and the proposed distribution by such Holder of such Transfer Restricted Notes as the Partnership may from time to time reasonably request in writing. No Holder of
Transfer Restricted Notes may include its Transfer Restricted Notes in such Shelf Registration Statement unless and until such Holder furnishes such information to the Partnership. Each Holder including Transfer Restricted Notes in a Shelf
Registration Statement shall agree to furnish promptly to the Partnership all information regarding such Holder and the proposed distribution by such Holder of such Transfer Restricted Notes required to make the information previously furnished to
the Partnership by such Holder not materially misleading.
In connection with an Exchange Offer Registration, each Holder
exchanging Notes for Exchange Notes shall be required to represent that (i) the Exchange Notes are being obtained in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such Person is a Holder,
(ii) neither such Holder nor any such other Person has an arrangement or understanding with any Person to participate in the distribution of Exchange Notes, (iii) other than as set forth in Section 4, if the Holder is not a
broker-dealer, or is a broker-dealer but will not receive Exchange Notes for its own account in exchange for Notes, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Notes and
(iv) neither the Holder nor any such other Person is an “affiliate” of the Partnership within the meaning of Rule 405 under the Securities Act or, if such Person is an “affiliate,” that such Holder will comply with the
registration and prospectus delivery requirements of the Securities Act to the extent applicable.
In the case of a Shelf
Registration, each Holder agrees that, upon receipt of any notice from the Partnership of the happening of any event of the kind described in Section 3(e)(v) or (vii) hereof, such Holder will forthwith discontinue disposition of Transfer
Restricted Notes pursuant to the applicable Shelf Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 3(i) hereof, and, if so directed by the Partnership, such
Holder will destroy or deliver to the Partnership (at its expense) all copies in its possession, other than permanent file copies then in such Holder’s possession, of the Prospectus covering such Transfer Restricted Notes current at the time of
receipt of such notice.
If the Partnership shall give any such notice to suspend the disposition of Transfer Restricted Notes
pursuant to a Registration Statement, the Partnership shall extend the period during which the Registration Statement shall be maintained effective pursuant to this Agreement by the number of days during the period from and including the date of the
giving of such notice to and including the date when the Holders shall have received copies of the supplemented or amended Prospectus necessary to resume such dispositions.
14
The Holders of Transfer Restricted Notes covered by a Shelf Registration Statement who
desire to do so may sell such Transfer Restricted Notes in an Underwritten Offering. In any such Underwritten Offering, the investment banker or investment bankers and manager or managers (the “
Underwriters
”) that will administer
the offering will be selected by the Majority Holders of the Transfer Restricted Notes included in such offering,
provided
that such Underwriters shall be reasonably acceptable to the Partnership.
4.
Participation of Broker-Dealers in Registered Exchange Offer.
(a) The parties hereto understand that the Staff of the Commission has taken the position that any broker-dealer that
receives Exchange Notes for its own account in the Registered Exchange Offer in exchange for Notes that were acquired by such broker-dealer as a result of market-making or other trading activities (a “
Participating Broker-Dealer
”),
may be deemed to be an “underwriter” within the meaning of the 1933 Act and must deliver a prospectus meeting the requirements of the 1933 Act in connection with any resale of such Exchange Notes.
The Partnership understands the Staff of the Commission has currently taken the position that if the Prospectus contained
in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating
Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligation under the 1933 Act in connection with resales of Exchange Notes
for their own accounts, so long as the Prospectus otherwise meets the requirements of the 1933 Act.
(b) In
light of the above, notwithstanding the other provisions of this Agreement, the Partnership agrees that the provisions of this Agreement as they relate to a Shelf Registration shall also apply to an Exchange Offer Registration to the extent, and
with such reasonable modifications thereto as may be, reasonably requested by the Initial Purchasers or by one or more Participating Broker-Dealers, in each case as provided in clause (ii) below, in order to expedite or facilitate the
disposition of any Exchange Notes by Participating Broker-Dealers consistent with the positions of the Staff recited in Section 4(a) above;
provided
that:
(i) the Partnership shall not be required to amend or supplement the Prospectus contained in the Exchange Offer
Registration Statement, as would otherwise be contemplated by Section 3(i), for a period exceeding 180 days after the last Exchange Date (as such period may be extended pursuant to the penultimate paragraph of Section 3 of this Agreement)
and Participating Broker-Dealers shall not be authorized by the Partnership to deliver and shall not deliver such Prospectus after such period in connection with the resales contemplated by this Section 4; and
(ii) the application of the Shelf Registration procedures set forth in Section 3 of this Agreement to an Exchange
Offer Registration, to the extent not
15
required by the positions of the Staff of the Commission or the 1933 Act, will be in conformity with the reasonable request in writing to the Partnership by the Initial Purchasers or with the
reasonable request in writing to the Partnership by one or more broker-dealers who certify to the Initial Purchasers and the Partnership in writing that they anticipate that they will be Participating Broker-Dealers; and
provided
,
further,
that in connection with such application of the Shelf Registration procedures set forth in Section 3 to an Exchange Offer Registration, the Partnership shall be obligated (x) to deal only with the Initial Purchasers, as representatives
of the Participating Broker-Dealers, unless they elect not to act as such representatives, (y) to pay the fees and expenses of only one counsel representing the Participating Broker-Dealers, which will be counsel to the Initial Purchasers
unless such counsel elects not to so act and (z) to cause to be delivered only one, if any, “comfort” letter with respect to the Prospectus in the form existing on the last Exchange Date and with respect to each subsequent amendment
or supplement, if any, effected during the period specified in clause (i) above.
(c) The Initial
Purchasers shall have no liability to the Partnership, other than as Holders in accordance with the terms hereof, or to any other Holder with respect to any request that they may make pursuant to Section 4(b) above.
5.
Indemnification and Contribution.
(a) The Partnership Parties, jointly and severally, agree to indemnify and hold harmless the Initial Purchasers, each Holder and each Person, if any, who controls the Initial Purchasers or any Holder
within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, or is under common control with, or is controlled by, the Initial Purchasers or any Holder (each, a “
Participant
”), from and against
all losses, claims, damages and liabilities (including, without limitation, any legal fees or other expenses reasonably incurred by a Participant in connection with defending or investigating any such action or claim) caused by any untrue statement
or alleged untrue statement of a material fact contained in any Registration Statement (or any amendment thereto) pursuant to which Exchange Notes or Transfer Restricted Notes were registered under the 1933 Act, including all documents incorporated
therein by reference, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or caused by any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (as amended or supplemented if the Partnership Parties shall have furnished any amendments or supplements thereto) forming a part of such Registration Statement, or caused by any omission or
alleged omission to state therein a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based upon and in conformity with information relating to the Initial Purchasers or any Holder, as the case may be, furnished to the Partnership Parties in writing by such
Initial Purchasers or selling Holder expressly for use therein. In connection with any Underwritten Offering permitted by Section 3, the Partnership Parties will also enter into
16
an underwriting agreement pursuant to which the Partnership Parties will agree to indemnify the Underwriters, if any, selling brokers, dealers and similar securities industry professionals
participating in such Underwritten Offering, their officers and directors and each Person who controls such Persons (within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act) to the same extent as provided
above with respect to the indemnification of the Holders, if requested in connection with any Registration Statement for such Underwritten Offering.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Partnership Parties, the Initial Purchasers and the other selling Holders, and each of their respective directors and
officers who sign the Registration Statement and each Person, if any, who controls the Partnership Parties, the Initial Purchasers and any other selling Holder within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act to the same extent as the foregoing indemnity from the Partnership Parties to the Initial Purchasers and the Holders pursuant to Section 5(a), but only with reference to information relating to such Holder furnished to the Partnership
Parties in writing by such Holder expressly for use in any Registration Statement (or any amendment thereto) or any Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any Person in respect
of which indemnity may be sought pursuant to either paragraph (a) or paragraph (b) above, such Person (the “
Indemnified Party
”) shall promptly notify the Person against whom such indemnity may be sought (the
“
Indemnifying Party
”) in writing, but the failure to so promptly notify the Indemnifying Party shall not negate the obligation to so indemnify such Indemnified Party unless the Indemnifying Party is materially prejudiced by such
delay, and the Indemnifying Party, upon request of the Indemnified Party, shall retain counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and any others the Indemnifying Party may designate in such proceeding
and shall pay the fees and expenses of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the
Indemnifying Party and the Indemnified Party and, in the opinion of counsel to the Indemnifying Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (A) the fees and expenses of more than one separate firm (in addition to any local counsel) for
the Initial Purchasers and all Persons, if any, who control the Initial Purchasers within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, (B) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Partnership Parties, their directors, their officers who sign the Registration Statement and each Person, if any, who controls the Partnership within the meaning of either such Section and (C) the fees and
expenses of more than one separate firm (in addition to any local counsel) for all Holders and all Persons, if any, who control any Holders within the meaning of either such
17
Section, and that all such fees and expenses shall be reimbursed as they are incurred. In such case involving the Initial Purchasers and Persons who control the Initial Purchasers, such firm
shall be designated in writing by the Initial Purchasers. In such case involving the Holders and such Persons who control Holders, such firm shall be designated in writing by the Majority Holders. In all other cases, such firm shall be designated by
the Partnership. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent but, if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees
to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending or
threatened proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement (i) includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement as to, or admission of, fault, culpability or failure to act by or on behalf of such Indemnified Person.
(d) If the indemnification provided for in paragraph (a) or paragraph (b) of this Section 5 is
unavailable to an Indemnified Party or insufficient in respect of any losses, claims, damages or liabilities, then each Indemnifying Party under such paragraph, in lieu of indemnifying such Indemnified Party thereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party or parties on the one hand and of the
Indemnified Party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of the Partnership
Parties and the Holders will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the
Partnership Parties or by the Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Holders’ respective obligations to contribute pursuant to this
Section 5(d) are several in proportion to the respective principal amount of Transfer Restricted Notes of the applicable Holder that were registered pursuant to a Registration Statement.
(e) The Partnership and each Holder agree that it would not be just or equitable if contribution pursuant to
Section 5(d) above were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 5(d) above. The amount paid or payable by an Indemnified Party
as a result of the losses, claims, damages and liabilities referred to in Section 5(d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which Transfer
Restricted Notes were sold by such
18
Holder exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission;
provided
that in no case shall any Initial Purchaser be required to contribute any amount in excess of the underwriting discounts or commissions applicable to the Transfer Restricted Notes purchased by such Initial Purchaser, as set forth in the Purchase
Agreement. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 5 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Party at law or in equity.
The indemnity and contribution provisions contained in this Section 5 shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Initial Purchasers, any Holder or any Person controlling the Initial Purchasers or any Holder, or by or on behalf of the
Partnership Parties, their officers or directors or any Person controlling the Partnership Parties, (iii) acceptance of any of the Exchange Notes or (iv) any sale of Transfer Restricted Notes pursuant to a Shelf Registration Statement.
6.
Miscellaneous.
(a)
No Inconsistent Agreements
. The Partnership Parties have not entered into, and on or after the date of this Agreement will not enter into, any agreement which is inconsistent with the rights
granted to the Holders of Transfer Restricted Notes in this Agreement or otherwise conflicts with the provisions hereof. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to
the holders of the Partnership’s other issued and outstanding securities under any such agreements.
(b)
Amendments and Waivers
. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the
Partnership has obtained the written consent of Holders of at least a majority in aggregate principal amount of the outstanding Transfer Restricted Notes affected by such amendment, modification, supplement, waiver or consent;
provided
,
however
, that no amendment, modification, supplement, waiver or consent to any departure from the provisions of Section 5 hereof or this paragraph (b) shall be effective as against any Holder of Transfer Restricted Notes unless
consented to in writing by such Holder.
(c)
Notices
. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, facsimile or any courier guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such Holder to the Partnership by
means of a notice given in accordance with the provisions of this Section 6(c), which address initially is, with respect to the Initial Purchasers, the address set forth in the Purchase Agreement and (ii) if to the Partnership Parties,
initially at the Partnership’s address set forth in the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c).
19
All such 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 pre-paid, if mailed; when receipt is acknowledged, if sent by facsimile; and on the next Business Day if timely delivered to an air
courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the address specified in the Indenture.
(d)
Successors and Assigns
. This Agreement shall inure to the benefit of, and be binding upon, the successors,
assigns and transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders of Transfer Restricted Notes;
provided
that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Transfer Restricted Notes in violation of the terms of the Notes and the Purchase Agreement. Without limiting the foregoing, if the Partnership directly or indirectly consolidates with or merges with or
into, or sells, assigns, transfers, leases, conveys or otherwise disposes of all or substantially all of its assets and properties and the assets and properties of its subsidiaries (taken as a whole) in one or more related transactions to another
person, the person formed by or surviving any such consolidation or merger (if other than the Partnership) or the person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made shall expressly assume all of the
Partnership’s obligations of this Agreement. If any transferee of any Holder acquires Transfer Restricted Notes, in any manner, whether by operation of law or otherwise, such Transfer Restricted Notes shall be held subject to all of the terms
of this Agreement, and by taking and holding such Transfer Restricted Notes such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof. The Initial Purchasers shall have no liability or obligation to the Partnership with respect to any failure by a Holder to comply with, or any breach by any other Holder of, any of the obligations of such Holder under
this Agreement.
(e)
Purchases and Sales of Notes
. The Partnership shall not, and shall not permit any
of its affiliates (as defined in Rule 405 under the 1933 Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Partnership or any of its affiliates and resold in a transaction registered under the
Securities Act.
(f)
Third Party Beneficiary
. Each Holder shall be a third party beneficiary to the
agreements made hereunder between the Partnership Parties, on the one hand, and the Initial Purchasers, on the other hand, shall be bound by all of the terms and provisions of this Agreement and shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of Holders hereunder.
20
(g)
Counterparts
. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together will constitute one and the same agreement.
(h)
Headings
. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(i)
Governing Law
. This Agreement shall be governed by the laws of the State
of New York.
(j)
Severability
. In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or unenforceable the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or
impaired thereby.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
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GS PIPELINE COMPANY, LLC
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By:
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/s/ Jamie L. Buskill
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Name:
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Jamie L. Buskill
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Title:
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Chief Financial Officer
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GULF SOUTH PIPELINE COMPANY, LP
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By:
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GS Pipeline Company, LLC, its general partner
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By:
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/s/ Jamie L. Buskill
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Name:
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Jamie L. Buskill
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Title:
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Chief Financial Officer
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Confirmed and accepted as of the date first above written:
Barclays Capital Inc.
J.P. Morgan Securities
LLC
For themselves and on behalf of the
several Initial Purchasers
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BY:
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BARCLAYS CAPITAL INC.
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by:
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/s/ Greg Hall
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Name:
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Greg Hall
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Title:
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Managing Director
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BY:
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J.P. MORGAN SECURITIES LLC
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by:
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/s/ Robert Bottamedi
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Name:
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Robert Bottamedi
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Title:
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Vice President
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SCHEDULE I
Initial Purchasers:
Barclays Capital Inc.
J.P. Morgan Securities LLC
Citigroup Global
Markets Inc.
Deutsche Bank Securities Inc.
Mitsubishi UFJ Securities (USA), Inc.
RBC Capital Markets, LLC
Wells Fargo Securities, LLC
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