BOARDWALK PIPELINES, LP, as Issuer BOARDWALK PIPELINE PARTNERS, LP, as Guarantor INDENTURE Dated as of November 21, 2006 THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee CROSS-REFERENCE TABLE
Exhibit
4.1
BOARDWALK
PIPELINES, LP,
as
Issuer
as
Guarantor
$250,000,000
5.875%
NOTES DUE 2016
Dated
as of November 21, ▇▇▇▇
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ TRUST COMPANY, N.A.,
as
Trustee
CROSS-REFERENCE
TABLE
|
TIA
Section
|
Indenture
Section
|
|
|
310
|
(a)
|
5.8
|
|
(b)
|
5.8
|
|
|
(c)
|
N.A.
|
|
|
311
|
(a)
|
5.13
|
|
(b)
|
5.13
|
|
|
(c)
|
N.A.
|
|
|
312
|
(a)
|
3.7
|
|
(b)
|
3.7
|
|
|
(c)
|
3.7
|
|
|
313
|
(a)
|
3.9
|
|
(b)
|
3.9
|
|
|
(c)
|
10.4
|
|
|
(d)
|
3.9
|
|
|
314
|
(a)
|
3.8
|
|
(b)
|
N.A.
|
|
|
(c)(1)
|
10.5
|
|
|
(c)(2)
|
10.5
|
|
|
(c)(3)
|
N.A.
|
|
|
(d)
|
N.A.
|
|
|
(e)
|
10.5
|
|
|
(f)
|
N.A.
|
|
|
315
|
(a)
|
5.1
|
|
(b)
|
4.11
& 10.4
|
|
|
(c)
|
5.1
|
|
|
(d)
|
5.1
|
|
|
(e)
|
4.12
|
|
|
316
|
(a)(last
sentence)
|
1.1
|
|
(a)(1)(A)
|
4.9
& 4.10
|
|
|
(a)(1)(B)
|
4.9
& 4.10
|
|
|
(a)(2)
|
7.1(f)
|
|
|
(b)
|
4.6
|
|
|
(c)
|
2.14
|
|
|
317
|
(a)(1)
|
5.2
|
|
(a)(2)
|
5.2
|
|
|
(b)
|
2.3
|
|
|
318
|
(a)
|
10.7
|
N.A.
means Not Applicable
NOTE:
This Cross-Reference table shall not, for any purpose, be deemed part of this
Indenture.
TABLE
OF CONTENTS
|
Section
1.1
|
Definitions.
|
ARTICLE
TWO
NOTES
|
Section
2.1
|
Form
and Dating.
|
ARTICLE
THREE
COVENANTS OF THE ISSUER
|
Section
3.1
|
Payment
of Principal and Interest
|
ARTICLE
FOUR
DEFAULTS
ADD REMEDIES
|
Section
4.1
|
Event
of Default Defined, Acceleration of Maturity, Waiver of
Default.
|
ARTICLE
FIVE
CONCERNING THE TRUSTEE
|
Section
5.1
|
Duties
and Responsibilities of the Trustee; During Default; Prior to
Default.
|
ARTICLE
SIX
CONCERNING THE HOLDERS
|
Section
6.1
|
Evidence
of Action Taken by Holders.
|
ARTICLE
SEVEN
AMENDMENTS
|
Section
7.1
|
Amendments
and Supplements Without Consent of Holders.
|
ARTICLE
EIGHT
SUCCESSORS
|
Section
8.1
|
Merger,
Consolidation or Sale of Assets of the Issuer.
|
ARTICLE
NINE
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
|
Section
9.1
|
Satisfaction
and Discharge of Indenture.
|
ARTICLE
TEN
MISCELLANEOUS PROVISIONS
|
Section
10.1
|
Incorporators,
Stockholders, Officers and Directors of Issuer Exempt from Individual
Liability.
|
ARTICLE
ELEVEN
REDEMPTION AND PREPAYMENT
|
Section
11.1
|
Notices
to Trustee.
|
ARTICLE
TWELVE
|
Section
12.1
|
Unconditional
Guarantee.
|
This
INDENTURE, dated as of November 21, 2006, is entered into among Boardwalk
Pipelines, LP, a Delaware limited partnership (the “Issuer”), Boardwalk Pipeline
Partners, L.P., a Delaware limited partnership (the “Guarantor”) and The Bank of
New York Trust Company, N.A., a national banking association, as Trustee (the
“Trustee”).
The
Issuer, the Guarantor and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the 5.875% Notes
due 2016:
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:
“Additional
Notes”
means
any Notes (other than Notes issued under Sections 2.6, 2.7 and 2.10) issued
under this Indenture in accordance with Sections 2.2 and 2.14, as part of the
same series as the Notes issued on the date hereof.
“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.
“Authorized
Newspaper”
means
a
newspaper (which, in the case of The City of New York, will, if practicable,
be
The Wall Street Journal (Eastern Edition), in the case of the United Kingdom,
will, if practicable, be the Financial Times (London Edition) and, in the case
of Luxembourg, will, if practicable, be the Luxemburger Wort) published in
an
official language of the country of publication and customarily published at
least once a day for at least five days in each calendar week and of general
circulation in The City of New York, the United Kingdom or in Luxembourg, as
applicable. If it shall be impractical in the opinion of the Trustee to make
any
publication of any notice required hereby in an Authorized Newspaper, any
publication or other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
“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 Boardwalk GP 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 Boardwalk GP 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.
“Boardwalk
GP”
means
Boardwalk GP, LLC, a Delaware limited liability company and the general partner
of Boardwalk GP, LP, the general partner of the Guarantor.
“Business
Day”
means,
with respect to any Note, a day that in the city (or in any of the cities,
if
more than one) in which amounts are payable, as specified in the form of such
Note, 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. “Independent
Investment Banker” means one of the Reference Treasury Dealers appointed by the
Issuer.
“Comparable
Treasury Price”
means,
with respect to any redemption date, (i) the average of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a percentage of
its
principal amount) on the third business day preceding such redemption date,
as
set forth in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated “Composite 3:30 p.m.
Quotations for U. S. Government Securities” or (ii) if such release (or any
successor release) is not published or does not contain such prices on such
business day, (A) the average of the Reference Treasury Dealer Quotations for
such redemption date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Issuer obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such Quotations.
“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 asked 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.
“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.
“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 office of the Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered, which office is,
at
the date as of which this Indenture is dated, located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇, ▇▇, ▇▇ ▇▇▇▇▇, Attn: Corporate Trust Administration.
“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.
“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.
“ECU”
means
the European Currency Unit as defined and revised from time to time by the
Council of European Communities.
“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.
“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(d) 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 Two 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.
“Guarantor”
means
the
Person named as the “Guarantor” in the first paragraph of this instrument until
a successor person shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Guarantor” shall mean such successor
Person.
“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 the Notes established as contemplated
hereunder.
“Indirect
Participant”
means
a
Person who holds a beneficial interest in a Global Note through a
Participant.
“Interest
Payment Dates”
shall
have the meaning set forth in paragraph 1 of each Note.
“Issue
Date”
means
November 21, 2006.
“Issuer
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 Boardwalk GP.
“Lien”
means,
with respect to any asset, or income or profits therefrom, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
the
asset, whether or not filed, recorded or otherwise perfected under applicable
law, including any conditional sale or other title retention agreement, any
lease in the nature of a conditional sale or title retention agreement, any
option or other agreement to sell or give a security interest in and any filing
of or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction.
“Notes”
means
(i) $250.0 million aggregate principal amount of Notes issued under this
Indenture on the date hereof and (ii) any Additional Notes.
“Obligations”
means
any principal, interest, penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable under the documentation governing any
Indebtedness.
“Officer”
means
with respect to the Issuer or the Guarantor, the Chief Executive Officer, the
President, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Secretary or any Vice President of Boardwalk GP.
“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 Boardwalk GP
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 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 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 2.07 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.
“Reference
Treasury Dealer”
means
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, Incorporated, ▇.▇. ▇▇▇▇▇▇ Securities
Inc. and Deutsche Bank Securities Inc., and their respective successors and,
at
the option of the Issuer, additional Primary Treasury Dealers; provided,
however,
that if
any of the foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a “Primary Treasury Dealer”), the Issuer shall
substitute therefor another Primary Treasury Dealer.
“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.
“Reporting
Failure”
means
the failure of the Issuer or the Guarantor, as applicable, to file with the
Trustee, within 15 days after the Issuer or the Guarantor is required to file
the same with the Commission within the time periods specified in the Exchange
Act or in the relevant forms thereunder (after giving effect to any grace period
specified under Rule 12b-25 under the Exchange Act), the annual reports,
information, documents or other reports that the Issuer or the Guarantor is
required to file with the commission pursuant to Section 13 or Section 15(d)
of
the Exchange 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.
“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.
“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.
“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.
“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 or,
if
applicable, at the most recent determination of interest, and calculated in
accordance with accepted financial practice.
| Section 1.2 |
Other
Definitions.
|
|
Term
|
Defined
in Section
|
|
“Authentication
Order”
|
2.2(d)
|
|
“Issuer”
|
Preamble
|
|
“covenant
defeasance”
|
9.1
|
|
“DTC”
|
2.3(b)
|
|
“Event
of Default”
|
4.1
|
|
“Paying
Agent”
|
2.3(a)
|
|
“Registrar”
|
2.3(a)
|
|
“Security
Register”
|
11.3
|
| 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.
| 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 $1,000 and integral multiples thereof. The
terms and provisions contained in the Notes shall constitute a part of this
Indenture, and the Issuer, the Guarantor 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.
(b) Form
of Notes.
Notes
shall be issued initially in global form and shall be substantially in the
form
of Exhibit A 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) Book-Entry
Provisions.
This
Section 2.1(c) 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 Guarantor or the Trustee or any agent of the
Issuer, the Guarantor, 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.
(d) 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. The Issuer
or any of its Subsidiaries may act as Paying Agent or Registrar.
(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 seven Business Days before each Interest Payment Date and
at
such other times as the Trustee may request in writing, a list in such form
and
as of such date 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 that the Global Notes shall be exchanged for Definitive Notes and
delivers a written notice to such effect to the Trustee; 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 $1,000 or integral multiples 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), (d), (e) or (h)
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 any Global
Note
may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in a 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).
(c) Transfer
and Exchange of Beneficial Interests for Definitive Notes. Subject
to Section 2.6(a) hereof, if any holder of a beneficial interest in a Global
Note proposes to exchange such beneficial interest for a Definitive Note or
to
transfer such beneficial interest to a Person who takes delivery thereof in
the
form of a Definitive Note, then, the Trustee shall reduce or cause to be reduced
in a corresponding amount pursuant to Section 2.6(g) hereof the aggregate
principal amount of the applicable 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 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 Definitive Note issued in exchange for a beneficial interest pursuant to
this Section 2.6(c) 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
Definitive Notes to the Persons in whose names such Notes are
registered.
(d) Transfer
and Exchange of Definitive Notes for Beneficial Interests. A
holder
of a Definitive Note may exchange such Note for a beneficial interest in a
Global Note or transfer such Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in a Global Note at any time.
Upon
receipt of a request for such an exchange or transfer in form satisfactory
to
the Registrar, the Trustee shall cancel the applicable Definitive Note and
increase or cause to be increased in a corresponding amount pursuant to Section
2.6(g) hereof the aggregate principal amount of one of the Global
Notes.
(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.
(f) 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) 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 COMPANY.
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
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) (“DTC”), TO THE COMPANY 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.”
(g) 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 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.
(h) 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 2.10, 4.12 and 9.5
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 11.2 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.
(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.
| 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 3.7 hereof.
(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 |
Treasury
Notes.
|
In
determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Issuer or
by
any Affiliate of the Issuer shall be considered as though not Outstanding,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Notes that
the Trustee knows are so owned shall be so disregarded.
| 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 them 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
and in Section 3.1 hereof. The Issuer shall notify the Trustee in writing of
the
amount of defaulted interest proposed to be paid on each Note and the date
of
the proposed payment. 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, subject to its compliance with Sections 3.4 and 3.5
hereof, to issue Additional Notes under this Indenture which shall have
identical terms as the Notes issued on the date hereof, other than with respect
to the date of issuance, issue price and, if applicable, the first payment
of
interest thereon. The Notes issued on the date hereof and any Additional Notes
shall be treated as a single class for all purposes under this Indenture,
including, without limitation, waivers, consents, directions, declarations,
amendments, redemptions and offers to purchase.
With
respect to any Additional Notes, the Issuer shall set forth in Board Resolution
and an Officers’ Certificate, a copy of each of which shall be delivered to the
Trustee, the following information:
(1) the
aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Indenture; and
(2) the
issue
price and the issue date; 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.
| 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).
ARTICLE
THREE
COVENANTS
OF THE ISSUER
| Section 3.1 |
Payment
of Principal and
Interest
|
The
Issuer covenants and agrees for the benefit of the Holder that it will duly
and
punctually pay or cause to be paid the principal of, and interest on, each
of
the Notes (together with any additional amounts payable pursuant to the terms
of
such 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 (together with any additional amounts
payable pursuant to the terms of such 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 the Notes.
| Section 3.3 |
Written
Statement to Trustee.
|
The
Issuer will furnish to the Trustee on or before January 31 in each year
(beginning with January 31, 2007) a brief certificate (which need not comply
with Section 10.5) from the principal executive, financial or accounting officer
of Boardwalk GP 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).
| 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 Three 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, however, 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
and/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;
(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 (o), (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;
(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
(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.
Trustee,
at its request, shall be provided with 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 such Principal 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 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
(B) the
only
parties involved in such Sale and Lease-ack 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 |
[Reserved].
|
| Section 3.7 |
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. Holders
may
communicate pursuant to §312(b) of the Trust Indenture Act of 1939 with other
Holders with respect to their rights under this Indenture or the Notes. The
Issuer, the Guarantor, the Trustee, the Registrar and anyone else shall have
the
protection of §312(c) of the Trust Indenture Act of 1939.
| Section 3.8 |
Reports
by the Issuer.
|
The
Issuer covenants to file with the Trustee, within 15 days after the Issuer
is
required to file the same with the Commission, copies of the annual reports
and
of the information, documents, and other reports which the Issuer may be
required to file with the Commission pursuant to Section 13 or Section 15(d)
of
the Securities Exchange Act of 1934. 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 3.9 |
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 April 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,
provided that, if no event described in §313(a) of the Trust Indenture Act of
1939 has occurred within the twelve months preceding the reporting date, no
report need be transmitted. The Trustee shall also comply with §313(b) of the
Trust Indenture Act.
ARTICLE
FOUR
DEFAULTS
ADD REMEDIES
| Section 4.1 |
Event
of Default Defined, Acceleration of Maturity, Waiver of
Default.
|
“Event
of
Default” with respect to the Notes 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 or the Guarantor in respect of the Notes (other than a covenant or
warranty in respect of the Notes a default in whose performance or whose breach
is elsewhere in this Section specifically dealt with) 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 and the Guarantor by the Trustee
or
to the Issuer, the Guarantor 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, the Guarantor or
any
Subsidiary of the Issuer within any applicable grace period after final maturity
or (2) the acceleration of Indebtedness of the Issuer, the Guarantor 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
$50.0 million; or
(e) the
entry
of a decree or order by a court having jurisdiction in the premises adjudging
the Issuer, the Guarantor 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, the
Guarantor 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,
the
Guarantor 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, the Guarantor 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, the Guarantor or any Significant Subsidiary of
proceedings to be adjudicated as bankrupt or insolvent or the consent by the
Issuer, the Guarantor or any Significant Subsidiary to the institution of
bankruptcy or insolvency proceedings against it, or the filing by the Issuer,
the Guarantor 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, the Guarantor
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, the Guarantor or any Significant Subsidiary
or
for any substantial part of its property, or the making by the Issuer, the
Guarantor 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, unless the principal of
all
the Notes shall have already become due and payable, either the Trustee or
the
Holders of not less than 25% in aggregate principal amount of all the Notes
then
Outstanding hereunder, by notice in writing to the Issuer and the Guarantor
(and
to the Trustee if given by Noteholders), may declare the entire principal of
all
of the Notes then Outstanding, and 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 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 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 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, the Guarantor 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.
| 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 specified in the Notes); 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 negligence or bad faith.
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, the Guarantor 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, the Guarantor or their property or such other
obligor, or in case of any other comparable judicial proceedings relative to
the
Issuer, the Guarantor or other obligor upon the Notes, or to the creditors
or
property of the Issuer, the Guarantor 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 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
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 the Notes parties to any such proceedings.
| Section 4.3 |
Application
of Proceeds.
|
Any
moneys collected by the Trustee pursuant to this Article Four 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:
FIRST:
To
the payment of costs and expenses applicable to the Notes in respect of which
monies have been collected, including reasonable compensation to the Trustee
and
each predecessor Trustee and their respective agents and attorneys and of all
expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of negligence or bad
faith;
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, 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 most effectual to protect and enforce any of such rights, either
at
law or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in
aid
of the exercise of any power granted in this Indenture or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by
law.
| Section 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, the Guarantor and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Issuer, the Guarantor, the Trustee and the Holders shall continue as
though no such proceedings had been taken.
| 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 herein before 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
reasonably 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. 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 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 forebearances specified in or pursuant to
such
direction would be unduly prejudicial to the interests of Holders of the Notes
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 forebearances 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 Guarantor, 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.
| 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 (i) if any Notes
are
then Outstanding, to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and
at
least once in an Authorized Newspaper in London (and, if required by Section
3.8, at least once in an Authorized Newspaper in Luxembourg) and (ii) 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 or publication 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 the board of directors, the executive committee, or 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 his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken, 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,
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.
|
With
respect to the Holders of Notes issued hereunder, the Trustee, prior to the
occurrence of an Event of Default with respect to the Notes and after the curing
or waiving of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the Notes has occurred
(which has not been cured or waived) the Trustee shall exercise with respect
to
the Notes 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 such person’s own
affairs.
No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its
own willful misconduct, except that
(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 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 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 or mathematical calculations or
other facts stated therein);
(b) 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;
and
(c) 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.
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.
The
provisions of this Section 5.1 are in furtherance of and subject to Sections
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 protected in acting or refraining
from acting upon any resolution, Officers’ Certificate or any other certificate,
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 Boardwalk GP;
(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 reasonably 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
unless requested in writing so to do by the Holders of not less than a majority
in aggregate principal amount of the Notes then Outstanding; provided that,
if
the payment within a reasonable time to the Trustee of the costs, expenses
or
liabilities likely to be incurred by it in the making of such investigation
is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall be paid
by
the Issuer or, if paid by the Trustee or any predecessor Trustee, shall be
repaid by the Issuer upon demand;
(g) the
Trustee may execute any of the trusts or powers or perform any duties 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 by it with due care;
(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;
(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, and that the statements made by it in the Statement
of
Eligibility on Form T-1 supplied to the Issuer are true and accurate. 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,
subject to the provisions of the Trust Indenture Act of 1939 relating to
conflicts of interest and preferential claims.
| 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.
|
Each
of
the Issuer and the Guarantor 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 trust) and each of the
Issuer and the Guarantor 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 be determined to have been caused by its own
negligence or willful misconduct. Each of the Issuer and the Guarantor 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 faith 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 and the Guarantor 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 bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under
the
provisions of this Indenture upon the faith thereof.
| Section 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. No obligor on the Notes or Person directly
or
indirectly controlling, controlled by, or under common control with such obligor
shall serve as Trustee. The Trustee shall comply with § 310(b) of the Trust
Indenture Act of 1939; provided that, there shall be excluded from the operation
of § 310(b)(1) of the Trust Indenture Act of 1939, this Indenture or indentures
under which other securities or certificates of interest, or participation
in
other securities of the Issuer are outstanding if the requirements for such
exclusion set forth in § 310(b)(1) of the Trust Indenture Act of 1939 are
met.
| Section 5.9 |
Resignation
and Removal; Appointment of Successor
Trustee
|
(a) The
Trustee, or any trustee or trustees hereafter appointed, may at any time
resign
with
respect to the Notes by giving written notice of resignation to the Issuer
and
(i) if any Notes are then Outstanding, by giving notice of such resignation
to
the Holders thereof, by publication at least once in an Authorized Newspaper
in
the Borough of Manhattan, The City of New York, and at least once in an
Authorized Newspaper in London (and, if required by Section 3.8, at least once
in an Authorized Newspaper in Luxembourg), (ii) if any Notes affected are then
Outstanding, by mailing notice of such resignation to the Holders thereof who
have filed their names and addresses with the Trustee pursuant to §313(c)(2) of
the Trust Indenture Act of 1939 at such addresses as were so furnished to the
Trustee and (iii) 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 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.
(b) 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 with respect to the Notes after written request therefor
by the Issuer or by any Holder who has been a bona fide Holder of a Note or
Notes 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
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.
(c) The
Holders of a majority in aggregate principal amount of the Notes 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.
(d) Any
resignation or removal of the Trustee and any appointment of a successor trustee
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 the 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 the
Notes
of its predecessor hereunder, with like effect as if originally named as trustee
for such 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 (a) if any Notes are then
Outstanding, to the Holders thereof, by publication of such notice at least
once
in an Authorized Newspaper in the Borough of Manhattan, The City of New York
and
at least once in an Authorized Newspaper in London (and, if required by Section
3.8, at least once in an Authorized Newspaper in Luxembourg), (b) if any Notes
are then Outstanding, to the Holders thereof who have filed their names and
addresses with the Trustee pursuant to § 313(c)(2) of the Trust Indenture Act of
1939, by mailing such notice to such Holders at such addresses as were so
furnished to the Trustee (and the Trustee shall make such information available
to the Issuer for such purpose) and (c) to the Holders of Registered Notes,
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.
In
case
at the time such successor to the Trustee shall succeed to the trusts created
by
this Indenture any of the Notes 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 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 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 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
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 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 , 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
in
the manner and to the extent provided in Section 5.10. Any successor
Authenticating Agent upon 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 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.
| Section 5.13 |
Preferential
Collection of Claims Against
Issuer.
|
The
Trustee shall comply with § 311(a) of the Trust Indenture Act of 1939, excluding
any creditor relationship listed in § 311(b) of the Trust Indenture Act of 1939.
A Trustee who has resigned or has been removed shall be subject to the Trust
Indenture Act of 1939 to the extent indicated therein.
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, the Issuer and the Guarantor,
if made in the manner provided in this Article Six.
| 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 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 or in any other manner which
the
Trustee 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 Guarantor, the Trustee and any agent of the Issuer, the Guarantor
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, the Guarantor
nor
the Trustee nor any agent of the Issuer, the Guarantor or the Trustee shall
be
affected by any notice to the contrary. The Issuer, the Guarantor, the Trustee
and any agent of the Issuer, the Guarantor or the Trustee may treat the Holder
of any Note as the absolute owner of such Note (whether or not such Note shall
be overdue) for the purpose of receiving payment thereof or on account thereof
and for all other purposes and neither the Issuer, the Guarantor, the Trustee,
nor any agent of the Issuer, the Guarantor 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, the Guarantor 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, the Guarantor 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,
the
Guarantor 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, the Guarantor 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 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
Six, 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
Guarantor, 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 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 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
provide for the issuance of Additional Notes in accordance with the limitations
set forth in this Indenture as of the date hereof;
(f) to
modify
or amend this Indenture in such a manner as to permit the qualification of
this
Indenture or any supplemental indenture under the Trust Indenture Act of 1939
as
then in effect, except that nothing herein contained shall permit or authorize
the inclusion in any supplemental indenture of the provisions referred to in
§316(a)(2) of the Trust Indenture Act of 1939.
(g) 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 and the Guarantor 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 which affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise.
Any
amendment or supplement to this Indenture 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,
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), the Guarantor and the Trustee may, from
time to time and at any time, amend 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 (including any amount in respect of original
issue
discount) or interest thereon payable in any coin or currency other than that
provided in the Notes or in accordance with the terms thereof, 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 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, 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 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 and the
Guarantor 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 to this Indenture,
but it shall be sufficient if such consent shall approve the substance
thereof.
Promptly
after the execution by the Issuer, the Guarantor and the Trustee of any
amendment or supplement to this Indenture pursuant to the provisions of this
Section, the Trustee shall give notice thereof (i) to the Holders of then
Outstanding Registered Notes by mailing a notice thereof by first-class mail
to
such Holders at their addresses as they shall appear on the Note register,
(ii)
if any Notes are then Outstanding, to the Holders thereof who have filed their
names and addresses with the Trustee pursuant to § 313(c)(2) of the Trust
Indenture Act of 1939, by mailing a notice thereof by first-class mail to such
Holders at such addresses as were so furnished to the Trustee and (iii) if
any
Notes are then Outstanding, to all Holders thereof, by publication of a notice
thereof at least once in an Authorized Newspaper in the Borough of Manhattan,
The City of New York, and in each case such notice shall set forth in general
terms the substance of such amendment or supplement. 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 and Supplement to this
Indenture.
|
Upon
the
execution of any amendment or supplement to this Indenture 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, the Guarantor and the Holders of Notes 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 Seven complies with the applicable provisions of this
Indenture.
| 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 Seven 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
or
the Trustee shall so determine, new Notes so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of this
Indenture contained in any such 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 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;
(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 Eight and that
all conditions precedent herein provided for relating to such transaction have
been complied with;
(iv) the
Issuer has delivered to the Trustee such other documents as the Trustee may,
in
its discretion, reasonably require; and
(v) if
the
Issuer is not the continuing Person, then the Guarantor shall confirm that
its
guarantee shall continue to apply to the obligations under the Note and this
Indenture.
| 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 which 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 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 Eight 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 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,
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) 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 to which the Issuer is a party or by which
it
is bound;
(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;
(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 (it being understood that this condition shall not be deemed
satisfied until the expiration of such period); and
(vi) Such
covenant defeasance contemplated by this provision shall not cause any Notes
then listed on any registered national securities exchange under the Securities
Exchange Act of 1934, as amended, to be delisted.
(c) 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 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;
(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 (it being understood that this condition shall not be deemed
satisfied until the expiration of such period);
(iii) Such
covenant defeasance shall not cause the Trustee to have a conflicting interest
as described in §310 of the Trust Indenture Act of 1939 with respect to any
securities of the Issuer;
(iv) Such
covenant defeasance shall not result in a breach or violation of, or constitute
a default under, this Indenture or any other agreement or instrument to which
the Issuer is a party or by which it is bound;
(v) Such
covenant defeasance shall not cause any Notes then listed on any registered
national securities exchange under the Securities Exchange Act of 1934, as
amended, to be delisted;
(vi) 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
(vii) 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 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 Paving 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 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 (a) in respect of
Registered Notes 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, and (b) shall at the expense of the Issuer cause to be published
once,
in an Authorized Newspaper in the Borough of Manhattan, The City of New York
and
once in an Authorized Newspaper in London, 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
| Section 10.1 |
Incorporators,
Stockholders, Officers and Directors of Issuer Exempt from Individual
Liability.
|
Except
as
provided in Article Twelve, 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 incorporator, as such
or against any past, present or future member, manager, stockholder, general
partner, limited partner, officer or director, as such, of the Issuer, the
Guarantor, the general partner of the Issuer, the general partner of the
Guarantor or Boardwalk GP, or of any successor, either directly or through
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.
| 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, Guarantor, 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:
Boardwalk
Pipelines, LP
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Chief Financial Officer
Facsimile
No.: (▇▇▇)
▇▇▇-▇▇▇▇
If
to the
Guarantor:
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Chief Financial Officer
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
If
to the
Trustee:
The
Bank
of New York Trust Company, N.A.
▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
Corporate Trust Administration
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
The
Issuer, the Guarantor 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.
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 or Guarantor mails a notice or communication to Holders, it shall mail
a
copy to the Trustee and each Agent at the same time.
| 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.
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 Sections
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.
|
This
Indenture and each Note shall be governed by the substantive laws of the State
of New York, and shall be construed in accordance with the laws of such
State.
| 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 |
Qualification
of this Indenture.
|
The
Issuer shall qualify this Indenture under the Trust Indenture Act of 1939 and
shall pay all reasonable costs and expenses (including attorneys’ fees and
expenses for the Issuer, the Trustee and the Holders) incurred in connection
therewith, including, but not limited to, costs and expenses of qualification
of
this Indenture and the Notes and printing this Indenture and the Notes. The
Trustee shall be entitled to receive from the Issuer any such Officers’
Certificates, Opinions of Counsel or other documentation as it may reasonably
request in connection with any such qualification of this Indenture under the
Trust Indenture Act of 1939.
| Section 10.12 |
Waiver
of Jury Trial.
|
EACH
OF
THE COMPANY 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 10.13 |
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 90 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, on a pro rata basis, by
lot
or in accordance with any other method the Trustee deems fair and appropriate
(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 the Depositary), 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 $1,000 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 two (2) Business Days prior to the redemption date unless clause
(b) of the definition of “Comparable Treasury Price” is applicable, in which
case such Officer’s Certificate should be delivered on 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;
(g) the
applicable section of this Indenture pursuant to which the Notes called for
redemption are being redeemed; and
(h) that
no
representation is made as to the correctness of the CUSIP and/or ISIN numbers,
if any, listed in such notice or printed on the Notes.
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 45 days (or such shorter period allowed
by
the Trustee) prior to the redemption date, 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. Eastern 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.
| 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 at a redemption price 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 20
basis
points, plus in each case accrued interest thereon to the date of
redemption.
(b) 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 |
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.
ARTICLE
TWELVE
GUARANTEE
| Section 12.1 |
Unconditional
Guarantee.
|
(a) For
value
received, the Guarantor hereby fully, unconditionally and absolutely guarantees
(the “Guarantee”) to the Holders and to the Trustee the due and punctual payment
of the principal of, and premium, if any, and interest on the Notes and all
other amounts due and payable under this Indenture and the Notes by the Issuer,
when and as such principal, premium, if any, and interest shall become due
and
payable, whether at the stated maturity or by declaration of acceleration,
call
for redemption or otherwise, according to the terms of the Notes and this
Indenture, subject to the limitations set forth in Section 12.3.
(b) Failing
payment when due of any amount guaranteed pursuant to the Guarantee, for
whatever reason, the Guarantor will be obligated to pay the same immediately.
The Guarantee hereunder is intended to be a general, unsecured, senior
obligation of the Guarantor and will rank pari passu in right of payment with
all Indebtedness of the Guarantor that is not, by its terms, expressly
subordinated in right of payment to the Guarantee. The Guarantor hereby agrees
that its obligations hereunder shall be full, unconditional and absolute,
irrespective of the validity, regularity or enforceability of the Notes, the
Guarantee or this Indenture, the absence of any action to enforce the same,
any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Issuer, the
Guarantor, or any action to enforce the same or any other circumstances which
might otherwise constitute a legal or equitable discharge or defense of the
Guarantor. The Guarantor hereby agrees that in the event of a default in payment
of the principal of, or premium, if any, or interest on the Notes, whether
at
the stated maturity or by declaration of acceleration, call for redemption
or
otherwise, legal proceedings may be instituted by the Trustee on behalf of
the
Holders or, subject to Section 4.6, by the Holders, on the terms and conditions
set forth in this Indenture, directly against the Guarantor to enforce the
Guarantee without first proceeding against the Partnership.
(c) The
obligations of the Guarantor under this Article Twelve shall be as aforesaid
full, unconditional and absolute and shall not be impaired, modified, released
or limited by any occurrence or condition whatsoever, including, without
limitation, (A) any compromise, settlement, release, waiver, renewal, extension,
indulgence or modification of, or any change in, any of the obligations and
liabilities of the Issuer, the Guarantor contained in the Notes or this
Indenture, (B) any impairment, modification, release or limitation of the
liability of the Issuer, the Guarantor, or any of their estates in bankruptcy,
or any remedy for the enforcement thereof, resulting from the operation of
any
present or future provision of any applicable Bankruptcy Law, as amended, or
other statute or from the decision of any court, (C) the assertion or exercise
by the Issuer, the Guarantor, or the Trustee of any rights or remedies under
the
Notes or this Indenture or their delay in or failure to assert or exercise
any
such rights or remedies, (D) the assignment or the purported assignment of
any
property as security for the Notes, including all or any part of the rights
of
the Issuer or the Guarantor under this Indenture, (E) the extension of the
time
for payment by the Issuer, the Guarantor of any payments or other sums or any
part thereof owing or payable under any of the terms and provisions of the
Notes
or this Indenture or of the time for performance by the Issuer or the Guarantor
of any other obligations under or arising out of any such terms and provisions
or the extension or the renewal of any thereof, (F) the modification or
amendment (whether material or otherwise) of any duty, agreement or obligation
of the Issuer or the Guarantor set forth in this Indenture, (G) the voluntary
or
involuntary liquidation, dissolution, sale or other disposition of all or
substantially all of the assets, marshaling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of, or other similar
proceeding affecting, the Issuer or the Guarantor or any of their respective
assets, or the disaffirmance of the Notes, the Guarantee or this Indenture
in
any such proceeding, (H) the release or discharge of the Issuer or the Guarantor
from the performance or observance of any agreement, covenant, term or condition
contained in any of such instruments by operation of law, (I) the
unenforceability of the Notes, the Guarantee or this Indenture or (J) any other
circumstances (other than payment in full or discharge of all amounts guaranteed
pursuant to the Guarantee) which might otherwise constitute a legal or equitable
discharge of a surety or guarantor.
(d) The
Guarantor hereby (A) waives diligence, presentment, demand of payment, filing
of
claims with a court in the event of the merger, insolvency or bankruptcy of
the
Issuer or the Guarantor and all demands whatsoever, (B) acknowledges that any
agreement, instrument or document evidencing the Guarantee may be transferred
and that the benefit of its obligations hereunder shall extend to each holder
of
any agreement, instrument or document evidencing the Guarantee without notice
to
it and (C) covenants that the Guarantee will not be discharged except by
complete performance of the Guarantee. The Guarantor further agrees that if
at
any time all or any part of any payment theretofore applied by any Person to
the
Guarantee is, or must be, rescinded or returned for any reason whatsoever,
including without limitation, the insolvency, bankruptcy or reorganization
of
the Issuer or the Guarantor the Guarantee shall, to the extent that such payment
is or must be rescinded or returned, be deemed to have continued in existence
notwithstanding such application, and the Guarantee shall continue to be
effective or be reinstated, as the case may be, as though such application
had
not been made.
(e) The
Guarantor shall be subrogated to all rights of the Holders and the Trustee
against the Issuer in respect of any amounts paid by the Guarantor pursuant
to
the provisions of this Indenture, provided, however, that the Guarantor, shall
not be entitled to enforce or to receive any payments arising out of, or based
upon, such right of subrogation until all of the Notes and the Guarantee shall
have been paid in full or discharged.
| Section 12.2 |
Execution
and Delivery of
Guarantee.
|
To
further evidence the Guarantee set forth in Section 12.1, the Guarantor hereby
agrees that a notation relating to such Guarantee, substantially in the form
attached hereto as Annex A, shall be endorsed on each Note entitled to the
benefits of the Guarantee authenticated and delivered by the Trustee and
executed by either manual or facsimile signature of an officer of Boardwalk
GP.
The Guarantor hereby agrees that the Guarantee set forth in Section 12.1 shall
remain in full force and effect notwithstanding any failure to endorse on each
Note a notation relating to the Guarantee. If any officer of Boardwalk GP or
any
Affiliate, whose signature is on this Indenture or a Note no longer holds that
office at the time the Trustee authenticates such Note or at any time
thereafter, the Guarantee of such Note shall be valid nevertheless. The delivery
of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Guarantee set forth in this Indenture on behalf
of the Guarantor.
| Section 12.3 |
Limitation
on Liability of the
Guarantor.
|
The
Guarantor and by its acceptance hereof each Holder of a Note entitled to the
benefits of the Guarantee hereby confirm that it is the intention of all such
parties that the guarantee by the Guarantor pursuant to its Guarantee not
constitute a fraudulent transfer or conveyance for purposes of any Federal
or
state law. To effectuate the foregoing intention, the Holders of a Note entitled
to the benefits of the Guarantee and the Guarantor hereby irrevocably agree
that
the obligations of the Guarantor under its Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of the Guarantor and to any collections from or payments made by
or
on behalf of the Guarantor in respect of the obligations of the Guarantor under
its Guarantee, result in the obligations of the Guarantor under the Guarantee
not constituting a fraudulent conveyance or fraudulent transfer under Federal
or
state law.
| Section 12.4 |
Release
of Guarantor from Guarantee.
|
(a) Notwithstanding
any other provisions of this Indenture, the Guarantee of the Guarantor may
be
released upon the terms and subject to the conditions set forth in this Section
12.4. Provided that no Default shall have occurred and shall be continuing
under
this Indenture, any Guarantee incurred by the Guarantor pursuant to this Article
Twelve shall be unconditionally released and discharged upon (i) the Issuer’s
exercise of its legal defeasance option or its covenant defeasance option in
accordance with Article Nine hereof or (ii) the merger of the Guarantor into
the
Issuer or the liquidation or dissolution of the Guarantor (in each case to
the
extent not prohibited by this Indenture) or (iii) following delivery of a
written notice of such release or discharge by the Issuer, the Trustee, upon
the
release or discharge of all guarantees by the Guarantor of any debt of the
Issuer other than obligations arising under this Indenture and any Notes issued
hereunder, except a discharge or release by or as a result of payment under
such
guarantees.
(b) The
Trustee shall deliver an appropriate instrument evidencing any release of the
Guarantor from the Guarantee upon receipt of a written request of the Issuer
accompanied by an Officers’ Certificate and an Opinion of Counsel that the
Guarantor is entitled to such release in accordance with the provisions of
this
Indenture.
[Signatures
on following page]
SIGNATURES
Dated
as
of November 21, 2006.
Issuer:
BOARDWALK
PIPELINES, LP
By: Boardwalk
Operating GP LLC,
its
General Partner
its
Sole
Member
By: Boardwalk
GP, LP
its
General Partner
By: Boardwalk
GP, LLC
its
General Partner
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Chief Financial Officer
guarantor:
By: Boardwalk
GP, LP
its
General Partner
By: Boardwalk
GP, LLC
its
General Partner
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Chief Financial Officer
Trustee:
THE
BANK
OF NEW YORK TRUST COMPANY, N.A.
By: /s/
▇.
▇▇▇▇▇▇
Name:
▇.
▇▇▇▇▇▇
Title:
Assistant Vice President
(Face
of Note)
5.875%
NOTES DUE 2016
CUSIP
096630 AA 6
No.
1$
250,000,000
BOARDWALK
PIPELINES, LP
promises
to pay to CEDE & CO., INC., or its registered assigns, the principal sum of
Two Hundred and Fifty Million Dollars ($250,000,000.00) on November 15,
2016.
Interest
Payment Dates: May 15 and November 15, commencing May 15, 2007
Record
Dates: May 1 and November 1.
IN
WITNESS WHEREOF, the Issuer has caused this Note to be signed by its duly
authorized officer.
BOARDWALK
PIPELINES, LP
By:
Boardwalk Operating GP, LLC, its general partner
By:
Boardwalk Pipeline Partners, LP, its sole member
By:
Boardwalk GP, LP, its general partner
By:
Boardwalk GP, LLC, its general partner
By:_____________________________
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Chief Financial Officer
This
is
one of the Global
Notes
referred to in the
within-mentioned
Indenture:
THE
BANK
OF NEW YORK TRUST COMPANY, N.A.
as
Trustee
By: __________________________________
Authorized
Signatory
Dated:
November 21, 2006
(Back
of Note)
5.875%
NOTES DUE 2016
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 COMPANY.
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
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) (“DTC”), TO THE COMPANY 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.
Boardwalk Pipelines, LP, a Delaware limited partnership (the “Issuer”), promises
to pay interest on the principal amount of this Note at 5.875% per annum until
maturity relating to these Notes. The Issuer shall pay interest semi-annually
in
arrears in cash on May 15 and November 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 November
21,
2006; provided, however, that if there is no existing Default in the payment
of
interest, and if this Note is authenticated between a record date referred
to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further,
that
the first Interest Payment Date shall be May 15, 2007. 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 a
rate that is 1% per annum in excess of 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 (without regard to any applicable grace periods), 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 May 1 or November 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 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 under an Indenture, dated as of November 21, 2006
(“Indenture”), among the Issuer, the Guarantor and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the 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 at a redemption price 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, as defined in the Indenture, plus
20
basis points, plus in each case accrued interest thereon to the date of
redemption.
(b) 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 $1,000 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 $1,000 and
integral multiples of $1,000. 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 then Outstanding, 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. 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 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 provide for the issuance of Additional Notes in accordance with
the limitations set forth in the Indenture; 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
of the Indenture.
11. Defaults
and Remedies.
Each of
the following constitutes an Event of Default with respect to the Notes: (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
or the Guarantor in respect of the Notes (other than a covenant or warranty
in
respect of the Notes a default in whose performance or whose breach is elsewhere
in this Section is specifically dealt with) 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
and
the Guarantor by the Trustee or to the Issuer, the Guarantor 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, the Guarantor
or any Subsidiary of the Issuer within any applicable grace period after final
maturity or (2) the acceleration of Indebtedness of the Issuer, the Guarantor
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
$50 million; or (e) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Issuer, the Guarantor 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, the Guarantor 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, the Guarantor 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 (f) the
institution by the Issuer, the Guarantor or any Significant Subsidiary of
proceedings to be adjudicated as bankrupt or insolvent or the consent by the
Issuer, the Guarantor or any Significant Subsidiary to the institution of
bankruptcy or insolvency proceedings against it, or the filing by the Issuer,
the Guarantor 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, the Guarantor or any Significant Subsidiary or for
any
substantial part of its property, or the making by the Issuer, the Guarantor
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) 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,
unless the principal of all the Notes shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of all the Notes then Outstanding hereunder, by notice in writing to
the
Issuer and the Guarantor (and to the Trustee if given by Noteholders), may
declare the entire principal of all of the Notes then Outstanding, and 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, the Guarantor 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.
12. No
Recourse.
None
of
Boardwalk GP, the respective general partners of the Issuer and the Guarantor
or
their respective directors, officers, employees, partners and members, as such,
shall have any liability for any obligations of, the Guarantor or the Issuer
under the Notes, the Indenture or the Guarantee or for any claim based on,
in
respect of, or by reason of, such obligations or their creation. Each Holder
by
accepting the Securities waives and releases all such liability. The waiver
and
release are part of the consideration for issuance of the
Securities.
13. Guarantee.
The
Notes
are fully and unconditionally guaranteed on an unsecured, unsubordinated basis
by the Guarantor as set forth in Article Twelve of the Indenture, as noted
in the Notation of Guarantee to this Note.
14. Reliance.
The
Holder, by accepting this Note, acknowledges and affirms that (i) it has
purchased the Note in reliance upon the separateness of each of the Guarantor,
the general partner of the Guarantor and Boardwalk GP from the other and from
any other Persons and (ii) each of the Guarantor, the general partner of the
Guarantor and Boardwalk GP has assets and liabilities that are separate from
those of other Persons.
15. 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.
16. No
Recourse Against Others.
No
past, present or future director, officer, employee, incorporator, stockholder,
general partner, limited partner, officer or director of the Issuer, the
Guarantor, the general partner of the Issuer, the general partner of the
Guarantor or Boardwalk GP, 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.
17. Authentication.
This
Note shall not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent.
18. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee,
such
as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT
TEN
(= joint tenants with right of survivorship and not as tenants in common),
CUST
(= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
20. 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.
The
Issuer shall furnish to any Holder upon written request and without charge
a
copy of the Indenture. Requests may be made to: Boardwalk Pipelines, LP, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Chief Financial
Officer.
21. Governing
Law.
The
internal law of the State of New York shall govern and be used to construe
this
Note without giving effect to applicable principals of conflicts of law to
the
extent that the application of the laws of another jurisdiction would be
required thereby.
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:
____________________________
Your
Signature: ______________________________________________
(Sign
exactly as your name appears on the face of this Note)
Signature
Guarantee: __________________________________________________
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.
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:
|
Date
of Exchange
|
Amount
of decrease in Principal Amount of
this Global Note
|
Amount
of increase in Principal Amount of this Global
Note
|
Principal
Amount of this Global Note following such decrease (or
increase)
|
Signature
of authorized signatory of Trustee or Note Custodian
|
NOTATION
OF GUARANTEE
The
Guarantor (which term includes any successor Person under the Indenture), has
fully, unconditionally and absolutely guaranteed, to the extent set forth in
the
Indenture and subject to the provisions in the Indenture, the due and punctual
payment of the principal of, and premium, if any, and interest on the 5.875%
Notes due 2016 (the “Notes”) and all other amounts due and payable under the
Indenture and the Notes by the Issuer.
The
obligations of the Guarantor to the Holders of Notes and to the Trustee pursuant
to its Guarantee and the Indenture are expressly set forth in Article Twelve
of
the Indenture and reference is hereby made to the Indenture for the precise
terms of the Guarantee.
By: Boardwalk
GP, LP, its general partner
By: Boardwalk
GP, LLC, its general partner
By:
______________________________
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Chief Financial Officer