Exhibit 4.1
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SUBURBAN PROPANE PARTNERS, L.P.
Issuer
AND
[ ]
Trustee
_________________________
INDENTURE
Dated as of [ ], 2003
_________________________
Senior Debt Securities
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CROSS-REFERENCE TABLE*
Section of Trust Section of
Indenture Act Indenture
------------- ---------
310(a)......................................................... 7.09
310(b)......................................................... 7.08
7.10
310(c)......................................................... Inapplicable
311(a)......................................................... 7.13
311(b)......................................................... 7.13
311(c)......................................................... Inapplicable
312(a)......................................................... 5.01
5.02(a)
312(b)......................................................... 5.02(c)
312(c)......................................................... 5.02(c)
313(a)......................................................... 5.04(a)
313(b)......................................................... 5.04(b)
313(c)......................................................... 5.04(a)
5.04(b)
313(d)......................................................... 5.04(c)
314(a)......................................................... 5.03; 4.05
314(b)......................................................... Inapplicable
314(c)......................................................... 13.07
314(d)......................................................... Inapplicable
314(e)......................................................... 13.07
314(f)......................................................... Inapplicable
315(a)......................................................... 7.01
315(b)......................................................... 7.14
315(c)......................................................... 7.01(a)
315(d)......................................................... 7.01(b)
315(e)......................................................... 6.07
316(a)......................................................... 6.06
8.04
316(b)......................................................... 6.04
316(c)......................................................... 8.01
317(a)......................................................... 6.02
317(b)......................................................... 4.03
318(c)......................................................... 13.09
* This Cross-Reference Table does not constitute part of the Indenture and
shall not have any bearing on the interpretation of any of its terms or
provisions.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS OF TERMS...................................1
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01. DESIGNATION AND TERMS OF SECURITIES....................4
SECTION 2.02. FORM OF SECURITIES AND TRUSTEE'S CERTIFICATE...........6
SECTION 2.03. DENOMINATIONS: PROVISIONS FOR PAYMENT..................6
SECTION 2.04. EXECUTION AND AUTHENTICATION...........................8
SECTION 2.05. REGISTRATION OF TRANSFER AND EXCHANGE..................8
SECTION 2.06. TEMPORARY SECURITIES...................................9
SECTION 2.07. MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES........9
SECTION 2.08. CANCELLATION..........................................10
SECTION 2.09. BENEFITS OF INDENTURE.................................10
SECTION 2.10. AUTHENTICATING AGENT..................................10
SECTION 2.11. GLOBAL SECURITIES.....................................11
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01. REDEMPTION............................................12
SECTION 3.02. NOTICE OF REDEMPTION..................................12
SECTION 3.03. PAYMENT UPON REDEMPTION...............................13
SECTION 3.04. SINKING FUND..........................................13
SECTION 3.05. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.13
SECTION 3.06. REDEMPTION OF SECURITIES FOR SINKING FUND.............14
ARTICLE IV
CERTAIN COVENANTS
SECTION 4.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST............14
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.......................14
SECTION 4.03. PAYING AGENTS.........................................14
SECTION 4.04. APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE......15
SECTION 4.05. STATEMENT BY OFFICERS AS TO DEFAULT...................15
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS BY THE PARTNERSHIP AND THE TRUSTEE
SECTION 5.01. PARTNERSHIP TO FURNISH TRUSTEE NAMES AND ADDRESSES
OF SECURITYHOLDERS..................................15
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Page
SECTION 5.02. PRESERVATION OF INFORMATION; COMMUNICATIONS
WITH SECURITYHOLDERS................................16
SECTION 5.03. REPORTS BY THE PARTNERSHIP............................16
SECTION 5.04. REPORTS BY THE TRUSTEE................................16
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT.....................................17
SECTION 6.02. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE..........................................18
SECTION 6.03. APPLICATION OF MONEYS COLLECTED.......................19
SECTION 6.04. LIMITATION ON SUITS...................................20
SECTION 6.05. RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION
NOT WAIVER..........................................20
SECTION 6.06. CONTROL BY SECURITYHOLDERS............................20
SECTION 6.07. UNDERTAKING TO PAY COSTS..............................21
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01. CERTAIN DUTIES AND RESPONSIBILITIES OF TRUSTEE........21
SECTION 7.02. CERTAIN RIGHTS OF TRUSTEE.............................22
SECTION 7.03. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OR SECURITIES.......................................23
SECTION 7.04. MAY HOLD SECURITIES...................................24
SECTION 7.05. MONEYS HELD IN TRUST..................................24
SECTION 7.06. COMPENSATION AND REIMBURSEMENT........................24
SECTION 7.07. RELIANCE ON OFFICERS' CERTIFICATE.....................24
SECTION 7.08. DISQUALIFICATION; CONFLICTING INTERESTS...............25
SECTION 7.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY...............25
SECTION 7.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.....25
SECTION 7.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR................26
SECTION 7.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS.........................................27
SECTION 7.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
THE PARTNERSHIP.....................................27
SECTION 7.14. NOTICE OF DEFAULTS....................................27
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. EVIDENCE OF ACTION BY SECURITYHOLDERS.................28
SECTION 8.02. PROOF OF EXECUTION BY SECURITYHOLDERS.................28
SECTION 8.03. WHO MAY BE DEEMED OWNERS..............................28
SECTION 8.04. CERTAIN SECURITIES OWNED BY PARTNERSHIP DISREGARDED...29
SECTION 8.05. ACTIONS BINDING ON FUTURE SECURITYHOLDERS.............29
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Page
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF
SECURITYHOLDERS.....................................29
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS.....................................30
SECTION 9.03. EFFECT OF SUPPLEMENTAL INDENTURES.....................30
SECTION 9.04. SECURITIES AFFECTED BY SUPPLEMENTAL INDENTURES........31
SECTION 9.05. EXECUTION OF SUPPLEMENTAL INDENTURES..................31
SECTION 9.06. CONFORMITY WITH TRUST INDENTURE ACT...................31
ARTICLE X
SUCCESSOR
SECTION 10.01. PARTNERSHIP MAY CONSOLIDATE, ETC......................31
SECTION 10.02. SUCCESSOR SUBSTITUTED.................................32
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01. SATISFACTION AND DISCHARGE OF INDENTURE...............32
SECTION 11.02. DEPOSITED MONEYS TO BE HELD IN TRUST..................33
SECTION 11.03. PAYMENT OF MONEYS HELD BY PAYING AGENTS...............33
SECTION 11.04. REPAYMENT TO PARTNERSHIP..............................33
SECTION 11.05. REINSTATEMENT.........................................33
ARTICLE XII
IMMUNITY OF THE GENERAL PARTNER, UNITHOLDERS, OFFICERS
AND MEMBERS OF THE BOARD OF SUPERVISORS
SECTION 12.01. NO RECOURSE...........................................33
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. EFFECT ON SUCCESSORS AND ASSIGNS......................34
SECTION 13.02. ACTIONS BY SUCCESSOR..................................34
SECTION 13.03. NOTICES...............................................34
SECTION 13.04. NOTICE TO HOLDERS OF SECURITIES; WAIVER...............34
SECTION 13.05. GOVERNING LAW.........................................35
SECTION 13.06. EFFECT OF HEADINGS AND TABLE OF CONTENTS..............35
SECTION 13.07. COMPLIANCE CERTIFICATES AND OPINIONS..................35
SECTION 13.08. PAYMENTS ON BUSINESS DAYS.............................35
SECTION 13.09. CONFLICT WITH TRUST INDENTURE ACT.....................35
SECTION 13.10. COUNTERPARTS..........................................36
SECTION 13.11. SEPARABILITY..........................................36
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* This Table of Contents does not constitute part of the Indenture and shall
not have any bearing upon the interpretation of any of its terms or
provisions.
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INDENTURE, dated as of [ ], 2003, among SUBURBAN PROPANE PARTNERS, L.P., a
Delaware limited partnership (the "Partnership"), and [ ], as trustee (the
"Trustee"):
WHEREAS, the Partnership has duly authorized the execution and delivery of
this Indenture to provide for the issuance of unsecured debt securities
(hereinafter referred to as the "Securities"), in an unlimited aggregate
principal amount to be issued from time to time in one or more series as in this
Indenture provided, as registered Securities without coupons, to be
authenticated by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the Securities are
to be authenticated, issued and delivered, the Partnership has duly authorized
the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Partnership, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the holders of Securities:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS OF TERMS.
The terms defined in this Section (except as in this Indenture otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any Authorizing Resolution or indenture supplemental
hereto shall have the respective meanings specified in this Section and shall
include the plural as well as the singular. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, as amended or
that are by reference in the Trust Indenture Act defined in the Securities Act
(except as herein otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of the
execution of this instrument.
"Affiliate" means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such other Person, whether
through the ownership of voting securities or membership interests, by contract,
or otherwise. Without limiting the foregoing, any Person which is an officer,
member of the Board of Supervisors or 10% or greater holder of limited
partnership units of the Partnership, or a member of the immediate family of any
such officer, member of the Board of Supervisors or 10% or greater holder of
limited partnership units, shall be deemed to be an Affiliate of the
Partnership.
"Authenticating Agent" means an authenticating agent with respect to all or
any of the series of Securities appointed with respect to all or any series of
the Securities by the Trustee pursuant to Section 2.10.
"Authorizing Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Partnership to have been duly adopted
by the Board of Supervisors and to be in full force and effect on the date of
such certification.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar Federal or State
law for the relief of debtors.
"Board of Supervisors" means the Board of Supervisors of the Partnership or
any duly authorized committee of such Board of Supervisors.
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"Business Day" means, unless specified in an Authorizing Resolution or
supplemental indenture with respect to any series of Securities, any day other
than a day on which Federal or State banking institutions in the State of New
York, are authorized or obligated by law, executive order or regulation to
close.
"Commission" means the United States Securities and Exchange Commission.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at [ ].
"Custodian" means any receiver, trustee, assignee, liquidator, or similar
official under any Bankruptcy Law.
"Default" means any event, act or condition that with notice or lapse of
time, or both, would constitute an Event of Default.
"Depositary" means, with respect to Securities of any series, for which the
Partnership shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing agency under the Securities
and Exchange Act of 1934, as amended (the "Exchange Act"), or other applicable
statute or regulation, which, in each case, shall be designated by the
Partnership pursuant to either Section 2.01 or 2.11.
"Event of Default" means, with respect to Securities of a particular series
any event specified in Section 6.01, continued for the period of time, if any,
therein designated.
"Exchange Act" means the Securities and Exchange Act of 1934, as amended.
"General Partner" means Suburban Energy Services Group LLC, a limited
liability company duly organized and existing under the laws of the State of
Delaware, and its successors and assigns.
"Global Security" means, with respect to any series of Securities, one or
more Securities executed by the Partnership and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all in accordance with
the Indenture, which shall be registered in the name of the Depositary or its
nominee.
"Governmental Obligations" means securities that are (i) direct obligations
of the United States of America for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on any
such Governmental Obligation held by such custodian for the account of the
holder of such depositary receipt; provided, however, that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"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.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more Authorizing Resolutions
or indentures supplemental hereto entered into in accordance with the terms
hereof.
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"Interest Payment Date", when used with respect to any installment of
interest on a Security of a particular series, means the date specified in such
Security or in a Authorizing Resolution or in an indenture supplemental hereto
with respect to such series as the fixed date on which an installment of
interest with respect to Securities of that series is due and payable.
"Officers' Certificate" means a certificate signed by the President, Chief
Executive Officer, any Senior Vice President or any Vice President and by the
Treasurer or an Assistant Treasurer or the Controller or an Assistant Controller
or the Secretary or an Assistant Secretary of the Partnership that is delivered
to the Trustee in accordance with the terms hereof. Each such certificate shall
include the statements provided for in Section 13.07, if and to the extent
required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal counsel, who may
be an employee of or counsel for the Partnership, that is delivered to the
Trustee in accordance with the terms hereof. Each such opinion shall include the
statements provided for in Section 13.07, if and to the extent required by the
provisions thereof.
"Outstanding", when used with reference to Securities of any series, means,
subject to the provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered by the Trustee
under this Indenture, except (a) Securities theretofore canceled by the Trustee
or any paying agent, or delivered to the Trustee or any paying agent for
cancellation or that have previously been canceled; (b) Securities or portions
thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Partnership) or shall have been
set aside and segregated in trust by the Partnership (if the Partnership shall
act as its own paying agent); provided, however, that if such Securities or
portions of such Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and (c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the terms of
Section 2.07.
"Partnership" means Suburban Propane Partners, L.P., a limited partnership
duly organized and existing under the laws of the State of Delaware, and,
subject to the provisions of Article Ten, shall also include its successors and
assigns.
"Person" means any individual, corporation, limited liability company,
partnership, trust, joint-venture, joint-stock company, unincorporated
organization, government (or any agency or political subdivision thereof) or
other entity of any kind.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Responsible Officer" when used with respect to the Trustee means the
President, Chief Executive Officer, any Senior Vice President, any Vice
President, the Secretary, the Treasurer, any trust officer, any corporate trust
officer or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Securities" means the debt securities authenticated and delivered under
this Indenture.
"Security Register" has the meaning set forth in Section 2.05(b).
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"Securities Act" means the Securities Act of 1933, as amended, as in effect
at the date of execution of this instrument.
"Securityholder", "holder of Securities", "registered holder", or other
similar term, means the Person or Persons in whose name or names a particular
Security shall be registered on the books of the Partnership kept for that
purpose in accordance with the terms of this Indenture.
"Subsidiary" means, with respect to any Person, (i) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries, (ii) any general
partnership, limited partnership, limited liability company, joint venture or
similar entity, at least a majority of whose outstanding partnership or similar
interests shall at the time be owned by such Person, or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii)
any limited partnership of which such Person or any of its Subsidiaries is a
general partner.
"Trustee", with respect to a particular series of the Securities shall mean
the trustee with respect to that series, and, subject to the provisions of
Article Seven, shall also include its successors and assigns, and, if at any
time there is more than one Person acting in such capacity hereunder, "Trustee"
shall mean each such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
subject to the provisions of Sections 9.01, 9.02, and 10.01, as in effect at the
date of execution of this instrument.
"Voting Stock", as applied to the stock, units or similar interests of any
Person, means shares, units, interests, participations or other equivalents in
the equity interest (however designated) in such Person having ordinary voting
power for the election of a majority of the directors (or the equivalent) of
such Person, other than shares, units, interests, participations or other
equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01. DESIGNATION AND TERMS OF SECURITIES.
(a) The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more series up to the aggregate principal amount of Securities of that
series from time to time authorized by or pursuant to an Authorizing Resolution
or pursuant to one or more indentures supplemental hereto. Prior to the initial
issuance of Securities of any series, there shall be established in or pursuant
to an Authorizing Resolution, and set forth in an Officers' Certificate of the
Partnership, or established in one or more indentures supplemental hereto:
(1) the title of the Security of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
that series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of that
series);
(3) the date or dates on which the principal of the Securities of the
series is payable;
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(4) the rate or rates at which the Securities of the series shall bear
interest or the manner of calculation of such rate or rates, if any;
(5) the place or places where payments with respect to the Securities
of the series shall be payable;
(6) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the manner
of determination of such Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on any such Interest
Payment Dates;
(7) the right, if any, to extend the interest payment periods and the
duration of such extension;
(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Partnership;
(9) the obligation, if any, of the Partnership to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions (including payments made in cash in participation of future
sinking fund obligations) or at the option of a holder thereof and the
period or periods within which, the price or prices at which, and the terms
and conditions upon which, Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(10) the form of the Securities of the series including the form of
the certificate of authentication for such series;
(11) if other than denominations of one thousand U.S. dollars ($1,000)
or any integral multiple thereof, the denominations in which the Securities
of the series shall be issuable;
(12) the currency or currency units in which payment of the principal
of and any premium and interest on the Securities of the series shall be
payable;
(13) the terms pursuant to which the Securities of the series are
subject to defeasance;
(14) whether any of the Securities of the series will be issuable in
whole or in part in temporary or permanent global form or in the form of
book-entry securities and, in such case, the identity of the Depositary for
such series;
(15) whether the Securities of the series will be convertible into
common units or other securities of the Partnership and, if so, the terms
and conditions upon which such Securities will be so convertible, including
the conversion price, the conversion period and any provisions pursuant to
which the number of common units or other securities of the Partnership to
be received by the holders of such series of Securities would be subject to
adjustment;
(16) if the amount of payments of principal of and any premium or
interest on the Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
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(17) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
6.01;
(18) any additional or different Events of Default or restrictive
covenants provided for with respect to the Securities of the series;
(19) any provisions granting special rights to holders when a
specified event occurs;
(20) any special tax implications of the Securities of the series if
offered; and
(21) any and all other terms with respect to such series (which terms
may be inconsistent with the terms of this Indenture but shall not violate
the Trust Indenture Act), including any terms which may be required by or
advisable under United States laws or regulations or advisable in
connection with the marketing of Securities of that series.
(b) All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to any applicable Authorizing Resolution or in any indenture supplemental
hereto.
(c) If any of the terms of the series are established by action taken
pursuant to an Authorizing Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Partnership and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate of the Partnership setting forth the terms of the series.
(d) Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different redemption dates. Unless otherwise provided, a
series may be reopened for issuances of additional Securities of such series.
SECTION 2.02. FORM OF SECURITIES AND TRUSTEE'S CERTIFICATE.
The Securities of any series and the Trustee's certificate of
authentication to be borne by such Securities shall be substantially of the
tenor and purpose as set forth in one or more indentures supplemental hereto or
as provided in an Authorizing Resolution and as set forth in an Officers'
Certificate of the Partnership, and may have such letters, numbers or other
marks of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Partnership may deem appropriate and as
are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which Securities
of that series may be listed, or to conform to usage.
SECTION 2.03. DENOMINATIONS: PROVISIONS FOR PAYMENT.
The Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral multiple
thereof, subject to Section 2.01(a)(11). The Securities of a particular series
shall bear interest payable on the dates and at the rate specified with respect
to that series. Unless otherwise provided pursuant to Section 2.01, the
principal of and the interest on the Securities of any series, as well as any
premium thereon in case of redemption thereof prior to maturity, shall be
payable in the coin or currency of the United States of America that at the time
is legal tender for public and private debt, at the office or agency of the
Partnership maintained for that purpose with respect to such series. Each
Security shall be dated the date of its authentica-
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tion. Unless otherwise provided pursuant to Section 2.01, interest on the
Securities shall be computed on the basis of a 360-day year composed of twelve
30-day months.
The interest installment on any Security that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date for Securities of that
series shall be paid to the Person in whose name said Security (or one or more
Predecessor Securities) is registered at the close of business on the regular
record date for such interest installment. In the event that any Security of a
particular series or portion thereof is called for redemption and the redemption
date is subsequent to a regular record date with respect to any Interest Payment
Date and prior to such Interest Payment Date, interest on such Security will be
paid upon presentation and surrender of such Security as provided in Section
3.03.
Any interest on any Security that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date for Securities of the same
series (herein called "Defaulted Interest") shall forthwith cease to be payable
to the registered holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by the Partnership,
at its election, as provided in clause (1) or clause (2) below:
(1) The Partnership may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of business
on a special record date for the payment of such Defaulted Interest, which
shall be fixed in the following manner: the Partnership shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each such Security and the date of the proposed payment, and at the same
time the Partnership shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest
which shall not be more than 15 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Partnership of such special record date and, in the name and at
the expense of the Partnership, shall cause notice of the proposed payment
of such Defaulted Interest and the special record date therefor to be
mailed, first class postage prepaid, to each Securityholder at his or her
address as it appears in the Security Register (as hereinafter defined),
not less than 10 days prior to such special record date. Notice of the
proposed payment of such Defaulted Interest and the special record date
therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered on such special record date and
shall be no longer payable pursuant to the following clause (2).
(2) The Partnership may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Partnership to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee.
Unless otherwise set forth in an Authorizing Resolution or one or more
indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term "regular record date" as
used in this Section with respect to a series of Securities with respect to any
Interest Payment Date for such series shall mean either the fifteenth day of the
month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date is the first day of a month, or the first day of the month
in which an Interest Payment Date established for such series pursuant to
Section 2.01 hereof shall occur, if such Interest Payment Date is the fifteenth
day of a month, whether or not such date is a Business Day.
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Subject to the foregoing provisions of this Section, each Security of a
series delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Security of such series shall carry the rights to interest
accrued and unpaid, and to accrue, that were carried by such other Security.
SECTION 2.04. EXECUTION AND AUTHENTICATION.
The Securities shall be signed on behalf of the Partnership by its
President, Chief Executive Officer, any Senior Vice President or any Vice
President, together with its Treasurer, or one of its Assistant Treasurers, or
its Secretary, or one of its Assistant Secretaries. Signatures may be in the
form of a manual or facsimile signature. Securities bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Partnership shall bind the Partnership, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities. The Securities may contain such notations, legends
or endorsements required by law, stock exchange rule or usage. Each Security
shall be dated the date of its authentication by the Trustee.
A Security shall not be valid until authenticated manually by an authorized
signatory of the Trustee, or by an Authenticating Agent. Such signature shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.
At any time and from time to time after the execution and delivery of this
Indenture, the Partnership may deliver Securities of any series executed by the
Partnership to the Trustee for authentication, together with a written order of
the Partnership for the authentication and delivery of such Securities, signed
by its President, Chief Executive Officer, any Senior Vice President or any Vice
President, together with its Treasurer, or one of its Assistant Treasurers, or
its Secretary, or one of its Assistant Secretaries, and the Trustee in
accordance with such written order shall authenticate and deliver such
Securities.
In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form and
terms thereof have been established in conformity with the provisions of this
Indenture.
The Trustee shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner that is not reasonably acceptable to the Trustee.
SECTION 2.05. REGISTRATION OF TRANSFER AND EXCHANGE.
(a) Securities of any series may be exchanged upon presentation thereof at
the office or agency of the Partnership designated for such purpose in the
Authorizing Resolution or supplemental indenture with respect to such series,
for other Securities of such series of authorized denominations, and for a like
aggregate principal amount, upon payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto, all as provided in this Section.
In respect of any Securities so surrendered for exchange, the Partnership shall
execute, the Trustee shall authenticate and such office or agency shall deliver
in exchange therefor the Security or Securities of the same series that the
Securityholder making the exchange shall be entitled to receive, bearing numbers
not contemporaneously outstanding.
(b) The Partnership shall keep, or cause to be kept, at its office or
agency designated for such purpose a register or registers (herein referred to
as the "Security Register") in which, subject to such reasonable regulations as
it may prescribe, the Partnership shall register the Securities and the
transfers of Securities as in this Article provided and which at all reasonable
times shall be open for inspection by the Trustee. Unless otherwise specified in
a
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supplemental indenture, the Trustee is hereby appointed as "Security Registrar"
for the purpose of registering Securities and transfer of Securities of each
series.
Upon surrender for transfer of any Security at the office or agency of the
Partnership designated for such purpose, the Partnership shall execute, the
Trustee shall authenticate and such office or agency shall deliver in the name
of the transferee or transferees a new Security or Securities of the same series
as the Security presented for a like aggregate principal amount.
All Securities presented or surrendered for exchange or registration of
transfer, as provided in this Section, shall be accompanied (if so required by
the Partnership or the Security Registrar) by a written instrument or
instruments of transfer, in form satisfactory to the Partnership or the Security
Registrar, duly executed by the registered holder or by such holder's duly
authorized attorney in writing.
(c) No service charge shall be made for any exchange or registration of
transfer of Securities, or issue of new Securities in case of partial redemption
of any series, but the Partnership may require payment of a sum sufficient to
cover any tax or other governmental charge in relation thereto, other than
exchanges pursuant to Section 2.06, the second paragraph of Section 3.03 and
Section 9.04 not involving any transfer.
(d) The Partnership shall not be required (i) to issue, exchange or
register the transfer of any Securities during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
less than all the Outstanding Securities of the same series and ending at the
close of business on the day of such mailing, nor (ii) to register the transfer
of or exchange any Securities of any series or portions thereof called for
redemption except the unredeemed portion of any Securities of any series being
redeemed in part. The provisions of this Section 2.05 are, with respect to any
Global Security, subject to Section 2.11 hereof.
SECTION 2.06. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Partnership may execute, and the Trustee shall authenticate and deliver,
temporary Securities (printed, lithographed or typewritten) of any authorized
denomination. Such temporary Securities shall be substantially in the form of
the definitive Securities in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Partnership. Every temporary
Security of any series shall be executed by the Partnership and be authenticated
by the Trustee upon the same conditions and in substantially the same manner,
and with like effect, as the definitive Securities of such series. Without
unnecessary delay, the Partnership will execute and will furnish definitive
Securities of such series and thereupon any or all temporary Securities of such
series may be surrendered in exchange therefor (without charge to the holders),
at the office or agency of the Partnership designated for such purpose and the
Trustee shall authenticate, and such office or agency shall deliver in exchange
for such temporary Securities, an equal aggregate principal amount of definitive
Securities of such series, unless the Partnership advises the Trustee to the
effect that definitive Securities need not be executed and furnished until
further notice from the Partnership. Until so exchanged, the temporary
Securities of such series shall be entitled to the same benefits under this
Indenture as definitive Securities of such series authenticated and delivered
hereunder.
SECTION 2.07. MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES.
In case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Partnership (subject to the next succeeding
sentence) shall execute, and upon the Partnership's request the Trustee (subject
as aforesaid) shall authenticate and deliver, a new Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated Security, or in lieu of and in substitution for the Security
so destroyed, lost or stolen. In every case, the applicant for a substituted
Security shall furnish to the Partnership and the Trustee such security or
indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Partnership and the Trustee
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evidence to their satisfaction of the destruction, loss or theft of the
applicant's Security and of the ownership thereof. The Trustee may authenticate
any such substituted Security and deliver the same upon the written request or
authorization of any officer of the Partnership. Upon the issuance of any
substituted Security, the Partnership may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith. In case any Security that has matured or is about
to mature shall become mutilated or be destroyed, lost or stolen, the
Partnership may, instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the Partnership and
the Trustee such security or indemnity as they may require to save them
harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Partnership and the Trustee of the destruction, loss or
theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of the Partnership
whether or not the mutilated, destroyed, lost or stolen Security shall be found
at any time, or be enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of the same series duly issued hereunder. All Securities shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities, and shall preclude (to the extent lawful) any and all
other rights or remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.08. CANCELLATION.
All Securities surrendered for the purpose of payment, redemption, exchange
or registration of transfer shall, if surrendered to the Partnership or any
paying agent, be delivered to the Trustee for cancellation, or if surrendered to
the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu
thereof except as expressly required or permitted by any of the provisions of
this Indenture. On request of the Partnership at the time of such surrender, the
Trustee shall deliver to the Partnership canceled Securities in accordance with
its standard procedures and deliver a certificate of disposition to the
Partnership. If the Partnership shall otherwise acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.09. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied, shall
give or be construed to give to any Person, other than the parties hereto and
the holders of the Securities any legal or equitable right, remedy or claim
under or in respect of this Indenture, or under any covenant, condition or
provision herein contained; all such covenants, conditions and provisions being
for the sole benefit of the parties hereto and of the holders of the Securities.
SECTION 2.10. AUTHENTICATING AGENT.
So long as any of the Securities of any series remain Outstanding, there
may be an Authenticating Agent for any or all such series of Securities which
the Trustee, with the consent of the Partnership, shall have the right to
appoint. Said Authenticating Agent shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange, transfer
or partial redemption thereof, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. All references in this
Indenture to the authentication of Securities by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series. Each
Authenticating Agent shall be a corporation that has a combined capital and
surplus, as most recently reported or determined by it, sufficient under the
laws of any jurisdiction under which it is organized or in which it is doing
business to conduct a trust business, and that is otherwise authorized under
such laws to conduct such business and is subject to supervision or examination
by Fed-
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eral or State authorities. If at any time any Authenticating Agent shall cease
to be eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Partnership. The Trustee may at any time
(and upon request by the Partnership shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Partnership. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint an
eligible successor Authenticating Agent acceptable to the Partnership. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. GLOBAL SECURITIES.
(a) If the Partnership shall establish pursuant to Section 2.01 that the
Securities of a particular series are issuable as one or more Global Securities,
then the Partnership shall execute and the Trustee shall, in accordance with
Section 2.04, authenticate and deliver, one or more Global Securities that (i)
shall represent, and shall be denominated in an amount equal to the aggregate
principal amount of, such of the Outstanding Securities of such series as shall
be specified therein and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect
exchanges, (ii) shall be registered in the name of the Depositary or its
nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant
to the Depositary's instruction and (iv) shall bear a legend substantially to
the following effect: "Except as otherwise provided in Section 2.11 of the
Indenture, this Security may be transferred, in whole but not in part, only to
another nominee of the Depositary or to a successor Depositary or to a nominee
of such successor Depositary." Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the written request signed in the name of the Partnership, the President,
Chief Executive Officer, any Senior Vice President or any Vice President and by
the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer thereof to be delivered to the Trustee pursuant to Section 2.04 or
Section 2.06.
(b) Notwithstanding the provisions of Section 2.05, the Global Securities
of a series may be transferred, in whole but not in part and in the manner
provided in Section 2.05, only to another nominee of the Depositary for such
series, or to a successor Depositary for such series selected or approved by the
Partnership or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the Securities notifies
the Partnership that it is unwilling or unable to continue as Depositary for
such series, or if at any time the Depositary for such series shall no longer be
registered or in good standing under the Exchange Act, or other applicable
statute or regulation, and a successor Depositary for such series is not
appointed by the Partnership within 90 days after the Partnership receives such
notice or becomes aware of such condition, as the case may be, this Section 2.11
shall no longer be applicable to the Securities of such series and the
Partnership will execute, and subject to Section 2.05, the Trustee will
authenticate and deliver the Securities of such series in definitive registered
form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Securities of such series in
exchange for such Global Securities. In addition, the Partnership may at any
time determine that the Securities of any series shall no longer be represented
by Global Securities and that the provisions of this Section 2.11 shall no
longer apply to the Securities of such series. In such event the Partnership
will execute and subject to Section 2.05, the Trustee, upon receipt of an
Officers' Certificate evidencing such determination by the Partnership, will
authenticate and deliver the Securities of such series in definitive registered
form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Securities of such series in
exchange for such Global Securities. Upon the exchange of the Global Securities
for such Securities in definitive registered form without coupons, in authorized
denominations, the Global Securities shall be canceled by the Trustee. Such
Securities in definitive registered form issued in exchange for the Global
Securities pursuant to this Sec-
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tion 2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Depositary for delivery to the Persons in
whose names such Securities are so registered.
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01. REDEMPTION.
The Partnership may redeem the Securities of any series issued hereunder on
and after the dates and in accordance with the terms established for such series
pursuant to Section 2.01 hereof.
SECTION 3.02. NOTICE OF REDEMPTION.
(a) In case the Partnership shall desire to exercise such right to redeem
all or, as the case may be, a portion of the Securities of any series in
accordance with the right reserved so to do, the Partnership shall, or shall
cause the Trustee to, give notice of such redemption to holders of the
Securities of such series to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days and not more than 60
days before the date fixed for redemption of that series to such holders at
their last addresses as they shall appear upon the Security Register unless a
shorter period is specified in the Securities to be redeemed. Any notice that is
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the registered holder receives the notice. In any
case, failure duly to give such notice to the holder of any Security of any
series designated for redemption in whole or in part, or any defect in the
notice, shall not affect the validity of the proceedings for the redemption of
any other Securities of such series or any other series.
Each such notice of redemption shall specify the date fixed for redemption
and the redemption price (or the manner of calculation thereof) at which
Securities of that series are to be redeemed, and shall state that payment of
the redemption price of such Securities to be redeemed will be made at the
office or agency of the Partnership specified for such purpose, upon
presentation and surrender of such Securities, that interest accrued to the date
fixed for redemption will be paid as specified in said notice, that from and
after said date interest will cease to accrue and that the redemption is for a
sinking fund, if such is the case. If less than all the Securities of a series
are to be redeemed, the notice to the holders of Securities of that series to be
redeemed in whole or in part shall specify the particular Securities to be so
redeemed. In case any Security is to be redeemed in part only, the notice that
relates to such Security shall state the portion of the principal amount thereof
to be redeemed, and shall state that on and after the redemption date, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
(b) If less than all the Securities of a series are to be redeemed, the
Partnership shall give the Trustee at least 45 days' (or such lesser time as may
be acceptable to the Trustee) notice in advance of the date fixed for redemption
as to the aggregate principal amount of Securities of the series to be redeemed,
and thereupon the Trustee shall select, by lot or in such other manner as it
shall deem appropriate and fair in its discretion and that may provide for the
selection of a portion or portions (equal to one thousand U.S. dollars ($1,000)
or any integral multiple thereof) of the principal amount of such Securities of
a denomination larger than $1,000, the Securities to be redeemed and shall
thereafter promptly notify the Partnership in writing of the numbers of the
Securities to be redeemed.
The Partnership may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its President, Chief Executive Officer, any
Senior Vice President or any Vice President, instruct the Trustee or any paying
agent to call all or any part of the Securities of a particular series for
redemption and to give notice of redemption in the manner set forth in this
Section, such notice to be in the name of the Partnership or its own name as the
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Trustee or such paying agent may deem advisable. In any case in which notice of
redemption is to be given by the Trustee or any such paying agent, the
Partnership shall deliver or cause to be delivered to, or permit to remain with,
the Trustee or such paying agent, as the case may be, such Security Register,
transfer books or other records, or suitable copies or extracts there from,
sufficient to enable the Trustee or such paying agent to give any notice by mail
that may be required under the provisions of this Section.
SECTION 3.03. PAYMENT UPON REDEMPTION.
(a) If the giving of notice of redemption shall have been completed as
above provided, the Securities or portions of Securities of the series to be
redeemed specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption and interest on such
Securities or portions of Securities shall cease to accrue on and after the date
fixed for redemption, unless the Partnership shall default in the payment of
such redemption price and accrued interest with respect to any such Security or
portion thereof. On presentation and surrender of such Securities on or after
the date fixed for redemption at the place of payment specified in the notice,
said Securities shall be paid and redeemed at the applicable redemption price
for such series, together with interest accrued thereon to the date fixed for
redemption (but if the date fixed for redemption is an interest payment date,
the interest installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date pursuant to
Section 2.03).
(b) Upon presentation of any Security of such series that is to be redeemed
in part only, the Partnership shall execute and the Trustee shall authenticate
and the office or agency where the Security is presented shall deliver to the
holder thereof, at the expense of the Partnership, a new Security of the same
series of authorized denominations in principal amount equal to the unredeemed
portion of the Security so presented.
SECTION 3.04. SINKING FUND.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any
sinking fund for the retirement of Securities of a series, except as otherwise
specified as contemplated by Section 2.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 3.05. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Partnership (i) may deliver Outstanding Securities of a series (other
than any Securities previously called for redemption) and (ii) may apply as a
credit Securities of a series that have been redeemed either at the election of
the Partnership pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series, provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
redemption price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
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SECTION 3.06. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days (or such lesser time as may be acceptable to the
Trustee) prior to each sinking fund payment date for any series of Securities,
the Partnership will deliver to the Trustee an Officers' Certificate specifying
the amount of the next ensuing sinking fund payment for that series pursuant to
the terms of the series, the portion thereof, if any, that is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 3.05 and
the basis for such credit and will, together with such Officers' Certificate,
deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date, the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.02 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Partnership in the manner provided in
Section 3.02. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Section
3.03.
ARTICLE IV
CERTAIN COVENANTS
SECTION 4.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Partnership will duly and punctually pay or cause to be paid the
principal of and any premium and interest on the Securities of that series at
the time and place and in the manner provided herein and established with
respect to such Securities.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
So long as any series of the Securities remains Outstanding, the
Partnership will maintain for such series an office or agency at one or more
locations where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Partnership in
respect of the Securities of that series and this Indenture may be served. The
Partnership will give prompt notice to the Trustee and to the holders of
Securities as provided in Sections 13.03 and 13.04, respectively, of the
location and any change in the location, of any such office or agency. If at any
time the Partnership shall fail to maintain any such required office or agency
in respect of any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Partnership hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
SECTION 4.03. PAYING AGENTS.
(a) If the Partnership shall appoint one or more paying agents for all or
any series of the Securities, other than the Trustee, the Partnership will cause
each such paying agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provisions of this
Section:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of and any premium or interest on the Securities
of that series (whether such sums have been paid to it by the Partnership
or by any other obligor of such Securities) in trust for the benefit of the
Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by the
Partnership (or by any other obligor of such Securities) to make any
payment of the principal of and any premium or interest on the Securities
of that series when the same shall be due and payable;
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(3) that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent; and
(4) that it will perform all other duties of paying agent as set forth
in this Indenture.
(b) If the Partnership shall act as its own paying agent with respect to
any series of the Securities, it will on or before each due date of the
principal of and any premium or interest on Securities of that series, set
aside, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay such principal and any premium or interest so
becoming due on Securities of that series until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of such action, or any failure (by it or any other obligor on such
Securities) to take such action. Whenever the Partnership shall have one or more
paying agents for any series of Securities, it will, prior to each due date of
the principal of and any premium or interest on any Securities of that series,
deposit with the paying agent a sum sufficient to pay the principal and any
premium or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such paying agent is the Trustee) the Partnership will promptly notify
the Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary, (i) the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.04, and (ii) the Partnership may at any time, for the
purpose of obtaining the satisfaction and discharge of this Indenture or for any
other purpose, pay, or direct any paying agent to pay, to the Trustee all sums
held in trust by the Partnership or such paying agent, such sums to be held by
the Trustee upon the same terms and conditions as those upon which such sums
were held by the Partnership or such paying agent; and, upon such payment by any
paying agent to the Trustee, such paying agent shall be released from all
further liability with respect to such money.
SECTION 4.04. APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE.
The Partnership, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 4.05. STATEMENT BY OFFICERS AS TO DEFAULT.
The Partnership will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Partnership ending after the date hereof, an
Officers' Certificate signed by its President, Chief Executive Officer, any
Senior Vice President, any Vice President, Treasurer or Controller stating
whether or not to the knowledge of such officer the Partnership is in default in
the performance and observance of any of the terms, provisions and conditions of
this Indenture, and if the Partnership shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS BY THE PARTNERSHIP AND THE TRUSTEE
SECTION 5.01. PARTNERSHIP TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
SECURITYHOLDERS.
The Partnership will furnish or cause to be furnished to the Trustee (a) on
each record date, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the holders of each series of Securities as of such
regular record date, provided that the Partnership shall not be obligated to
furnish or cause to furnish such
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list at any time that the list shall not differ in any respect from the most
recent list furnished to the Trustee by the Partnership and (b) at such other
times as the Trustee may request in writing within 30 days after the receipt by
the Partnership of any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is furnished; provided,
however, that, in either case, no such list need be furnished for any series for
which the Trustee shall be the Security Registrar.
SECTION 5.02. PRESERVATION OF INFORMATION; COMMUNICATIONS WITH SECURITYHOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of
Securities contained in the most recent list furnished to it as provided in
Section 5.01 and as to the names and addresses of holders of Securities received
by the Trustee in its capacity as Security Registrar (if acting in such
capacity).
(b) The Trustee may destroy any list furnished to it as provided in Section
5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b) of the
Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Securities. The Partnership, the Trustee, the
Security Registrar and anyone else shall have the protection of Section 312(c)
of the Trust Indenture Act.
SECTION 5.03. REPORTS BY THE PARTNERSHIP.
Notwithstanding that the Partnership may not at any time be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the
Partnership shall file with the Commission (to the extent the Commission will
accept such filing) and provide the Trustee and Securityholders with such annual
reports and such information, documents and other reports as are specified in
Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. Person
subject to such Sections (but without exhibits in the case of Securityholders),
such information, documents and other reports to be so filed and provided at the
times specified for the filing of such information, documents and reports under
such Sections.
In addition, the Partnership shall furnish to the Securityholders and to
prospective investors, upon the request of such Securityholders, any information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so
long as any Securities are not freely transferable under the Securities Act.
The Partnership also shall comply with the other provisions of TIA Section
314(a).
SECTION 5.04. REPORTS BY THE TRUSTEE.
(a) On or before July 15 in each year in which any of the Securities are
Outstanding, the Trustee shall transmit by mail, first class postage prepaid, to
the Securityholders, as their names and addresses appear upon the Security
Register, a brief report dated as of the preceding May 15, if and to the extent
required under Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Sections 313(b) and 313(c) of the Trust
Indenture Act.
(c) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with the Partnership, with each stock
exchange upon which any Securities are listed (if so listed) and also with the
Commission. The Partnership agrees to notify the Trustee when any Securities
become listed on any stock exchange.
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ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT.
(a) Whenever used herein with respect to Securities of a particular series,
"Event of Default" means any one or more of the following events that has
occurred and is continuing:
(1) the Partnership defaults in the payment of any installment of
interest upon any of the Securities of that series, as and when the same
shall become due and payable, and continuance of such default for a period
of 30 days; provided, however, that a valid extension of an interest
payment period by the Partnership in accordance with the terms of any
Authorizing Resolution or indenture supplemental hereto, shall not
constitute a default in the payment of interest for this purpose;
(2) the Partnership defaults in the payment of the principal of (or
premium, if any, on) any of the Securities of that series as and when the
same shall become due and payable whether at maturity, upon redemption, by
declaration or otherwise, or in any payment required by any sinking or
analogous fund established with respect to that series;
(3) the Partnership fails to observe or perform any other of its
covenants or agreements with respect to that series contained in this
Indenture or otherwise established with respect to that series of
Securities pursuant to Section 2.01 hereof (other than a covenant or
agreement that has been expressly included in this Indenture solely for the
benefit of one or more series of Securities other than such series) for a
period of 60 days after the date on which written notice of such failure,
requiring the same to be remedied and stating that such notice is a "Notice
of Default" hereunder, shall have been given to the Partnership by the
Trustee, by registered or certified mail, or to the Partnership and the
Trustee by the holders of at least 25% in principal amount of the
Securities of that series at the time Outstanding;
(4) if the Securities of the series are convertible into common units,
failure by the Partnership to deliver common units when the holder or
holders of such Securities elect to convert such Securities into common
units;
(5) the Partnership pursuant to or within the meaning of any
Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry
of an order for relief against it in an involuntary case, (iii) consents to
the appointment of a Custodian of it or for all or substantially all of its
property or (iv) makes a general assignment for the benefit of its
creditors;
(6) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Partnership in an
involuntary case, (ii) appoints a Custodian of the Partnership for all or
substantially all of its respective property, or (iii) orders the
liquidation of the Partnership, and the order or decree remains unstayed
and in effect for 60 days; or
(7) any other Event of Default provided with respect to Securities of
that series in any Authorizing Resolution or indenture supplemental hereto.
(b) In each and every such case, unless the principal of all the Securities
of that series shall have already become due and payable, either the Trustee or
the holders of not less than 25% in aggregate principal amount of the Securities
of that series then Outstanding hereunder, by notice in writing to the
Partnership (and to the Trustee if given by such Securityholders), may declare
the principal (or, if the Securities of such series are issued at a dis-
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count, such portion of the principal amount as may be specified in the terms of
such series) of all the Securities of that series to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, notwithstanding anything contained in this
Indenture or in the Securities of that series or established with respect to
that series pursuant to Section 2.01 to the contrary.
(c) At any time after the principal of the Securities of that series shall
have been so declared 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 holders of a majority in aggregate principal amount of the
Securities of that series then Outstanding hereunder, by written notice to the
Partnership and the Trustee, may rescind and annul such declaration and its
consequences if: (i) the Partnership has paid or deposited with the Trustee a
sum sufficient to pay all matured installments of interest upon all the
Securities of that series and the principal of (and premium, if any, on) any and
all Securities of that series that shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to the
extent that such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the Securities of
that series (or at the respective rates of interest of all the Securities) to
the date of such payment or deposit) and the amount payable to the Trustee under
Section 7.06, and (ii) any and all Events of Default under the Indenture with
respect to such series, other than the non-payment of principal on Securities of
that series that shall not have become due by their terms, shall have been
remedied or waived as provided in Section 6.06.
No such rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with
respect to Securities of that series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined adversely to the
Trustee, then and in every such case, the Partnership and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Partnership and the Trustee shall continue as
though no such proceedings had been taken.
SECTION 6.02. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
(a) The Partnership covenants that (1) in case it shall default in the
payment of any installment of interest on any of the Securities of a series, or
any payment required by any sinking or analogous fund established with respect
to that series as and when the same shall have become due and payable, and such
default shall have continued for a period of 30 days, or (2) in case it shall
default in the payment of the principal of (or premium, if any, on) any of the
Securities of a series when the same shall have become due and payable, whether
upon maturity of the Securities of a series or upon redemption or upon
declaration or otherwise, then, upon demand of the Trustee, the Partnership will
pay to the Trustee, for the benefit of the holders of the Securities of that
series, the whole amount that then shall have become due and payable on all such
Securities for principal (and premium, if any) or interest, or both, as the case
may be, with interest upon the overdue principal (and premium, if any) and (to
the extent that payment of such interest is enforceable under applicable law)
upon overdue installments of interest at the rate per annum expressed in the
Securities of that series.
(b) If the Partnership shall fail to pay such amounts forthwith 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 proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Partnership or other obligor upon the
Securities of that series and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Partnership or
other obligor upon the Securities of that series, wherever situated.
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(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial proceedings
affecting the Partnership, or its creditors or property, the Trustee shall have
power to intervene in such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise provided by law) be
entitled to file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee and of the
holders of Securities of such series allowed for the entire amount due and
payable by the Partnership under the Indenture at the date of institution of
such proceedings and for any additional amount that may become due and payable
by the Partnership after such date, and to collect and receive any moneys or
other property payable or deliverable on any such claim, and to distribute the
same after the deduction of the amount payable to the Trustee under Section
7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is
hereby authorized by each of the holders of Securities of such series to make
such payments to the Trustee, and, in the event that the Trustee shall consent
to the making of such payments directly to such Securityholders, to pay to the
Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this Indenture, or
under any of the terms established with respect to Securities of that series,
may be enforced by the Trustee without the possession of any of such Securities,
or the production thereof at any trial or other proceeding relative thereto, and
any such suit or proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall,
after provision for payment to the Trustee of any amounts due under Section
7.06, be for the ratable benefit of the holders of the Securities of such
series.
In case of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in the 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.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of that series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
SECTION 6.03. APPLICATION OF MONEYS COLLECTED.
Any moneys collected by the Trustee pursuant to this Article with respect
to a particular series of Securities 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 premium, if any) or interest, upon
presentation of the Securities of that series, and notation thereon the payment,
if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.06; and
SECOND: To the payment of the amounts then due and unpaid upon
Securities of such series for principal and any premium and interest, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any premium
and interest, respectively.
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SECTION 6.04. LIMITATION ON SUITS.
No holder of any Security of any series shall have any right by virtue or
by availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless (i) such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof with
respect to the Securities of such series specifying such Event of Default, as
hereinbefore provided; (ii) the holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as trustee hereunder; (iii) such holder or holders
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby;
and (iv) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity, shall have failed to institute any such action, suit or
proceeding and (v) during such 60 day period, the holders of a majority in
principal amount of the Securities of that series do not give the Trustee a
direction inconsistent with the request.
Notwithstanding anything contained herein to the contrary, any other
provisions of this Indenture, the right of any holder of any Security to receive
payment of the principal of and any premium and (subject to Section 2.03)
interest on such Security, as therein provided, on or after the respective due
dates expressed in such Security (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or
affected without the consent of such holder and by accepting a Security
hereunder it is expressly understood, intended and covenanted by the taker and
holder of every Security of such series with every other such taker and holder
and the Trustee, that no one or more holders of Securities of such series shall
have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the
holders of any other of such Securities, 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 Securities of such series. For the protection
and enforcement of the provisions of this Section, each and every Securityholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
SECTION 6.05. RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER.
(a) Except as otherwise provided in Section 2.01, all powers and remedies
given by this Article to the Trustee or to the Securityholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any other
powers and remedies available to the Trustee or the holders of the Securities,
by judicial proceedings or otherwise, to enforce the performance or observance
of the covenants and agreements contained in this Indenture or otherwise
established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of any of the
Securities 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 default or on acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article or by law to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
SECTION 6.06. CONTROL BY SECURITYHOLDERS.
The holders of a majority in aggregate principal amount of the Securities
of any series at the time Outstanding, determined in accordance with Section
8.04, 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 such series; provided,
however, that such direction shall not be in conflict with any rule
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of law or with this Indenture or be unduly prejudicial to the rights of holders
of Securities of such series not consenting; and provided, further, that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction. Prior to the taking of any action hereunder,
the Trustee shall be entitled to reasonable indemnification satisfactory to the
Trustee against all losses and expenses caused by taking or not taking such
action.
Subject to the provisions of Section 7.01, the Trustee shall have the right
to decline to follow any such direction if the Trustee in good faith shall, by a
Responsible Officer or Officers of the Trustee, determine that the proceeding so
directed would involve the Trustee in personal liability. The holders of a
majority in aggregate principal amount of the Securities of any series at the
time Outstanding affected thereby, determined in accordance with Section 8.04,
may on behalf of the holders of all of the Securities of such series waive any
past default in the performance of any of the covenants contained herein or
established pursuant to Section 2.01 with respect to such series and its
consequences, except a default in the payment of the principal of or any premium
or interest on, any of the Securities of that series as and when the same shall
become due by the terms of such Securities otherwise than by acceleration
(unless such default has been cured and a sum sufficient to pay all matured
installments of interest and principal and any premium has been deposited with
the Trustee in accordance with Section 6.01(c)). Upon any such waiver, the
default covered thereby shall be deemed to be cured for all purposes of this
Indenture and the Partnership, the Trustee and the holders of the Securities of
such series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
SECTION 6.07. UNDERTAKING TO PAY COSTS.
All parties to this Indenture agree, and each holder of any Securities by
such holder's acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, 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 Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
Outstanding Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01. CERTAIN DUTIES AND RESPONSIBILITIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a series and after the curing of all Events of
Default with respect to the Securities of that series that may have occurred,
shall undertake to perform with respect to the Securities of such series such
duties and only such duties as are specifically set forth in this Indenture, and
no implied covenants shall be read into this Indenture against the Trustee. In
case an Event of Default with respect to the Securities of a series has occurred
(that has not been cured or waived), the Trustee shall exercise with respect to
Securities of that series such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
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(b) 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:
(1) prior to the occurrence of an Event of Default with respect to the
Securities of a series and after the curing or waiving of all such Events
of Default with respect to that series that may have occurred:
(i) the duties and obligations of the Trustee shall, with respect
to the Securities of such series, be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable with
respect to the Securities of such series 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, with respect to the Securities of such series,
conclusively rely as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions that 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;
(2) 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;
(3) 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 of not less than a majority in principal amount of the
Securities of any series at the time Outstanding (determined as provided in
Section 8.04) relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee under this Indenture with respect to
the Securities of that series; and
(4) 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 is reasonable ground for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it.
SECTION 7.02. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, security 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 Partnership mentioned
herein shall be sufficiently evidenced by an Authorizing Resolution or an
instrument signed in the name of the Partnership, by the President, Chief
Executive Officer, any Senior Vice President or any Vice President and by the
Secretary or an As-
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sistant Secretary or the Treasurer or an Assistant Treasurer thereof (unless
other evidence in respect thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted hereunder in
good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders, pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby; nothing contained herein shall, however, relieve the Trustee
of the obligation, upon the occurrence of an Event of Default with respect to a
series of the Securities (that has not been cured or waived) to exercise with
respect to Securities of that series such of the rights and powers vested in it
by this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs;
(e) The Trustee shall not be liable for any action taken or omitted to be
taken by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) 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, bond, security, or
other papers or documents, unless requested in writing to do so by the holders
of not less than a majority in principal amount of the Outstanding Securities of
the particular series affected thereby (determined as provided in Section 8.04);
provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, 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 costs, expenses or
liabilities as a condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Partnership or, if paid by the Trustee,
shall be repaid by the Partnership upon demand; and
(g) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 7.03. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OR SECURITIES.
(a) The recitals contained herein and in the Securities shall be taken as
the statements of the Partnership, and the Trustee assumes no responsibility for
the correctness of the same.
(b) The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or application by the
Partnership of any of the Securities or of the proceeds of such Securities, or
for the use or application of any moneys paid over by the Trustee in accordance
with any provision of this Indenture or established pursuant to Section 2.01, or
for the use or application of any moneys received by any paying agent other than
the Trustee.
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SECTION 7.04. MAY HOLD SECURITIES.
The Trustee or any paying agent or Security Registrar, in its individual or
any other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not Trustee, paying agent or Security Registrar.
SECTION 7.05. MONEYS HELD IN TRUST.
Subject to the provisions of Section 11.04, 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 law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder except such as it
may agree with the Partnership to pay thereon.
SECTION 7.06. COMPENSATION AND REIMBURSEMENT.
(a) The Partnership covenants and agrees to pay to the Trustee, and the
Trustee shall be entitled to, such reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), as the Partnership and the Trustee may from time to time agree
in writing, for all services rendered by it in the execution of the trusts
hereby created and in the exercise and performance of any of the powers and
duties hereunder of the Trustee, and, except as otherwise expressly provided
herein, the Partnership will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence, bad faith or willful
misconduct. The Partnership also covenants to indemnify the Trustee (and its
officers, agents, directors and employees) for, and to hold it harmless against,
any loss, liability or expense incurred without negligence, bad faith or willful
misconduct on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the reasonable costs
and expenses of defending itself against any claim of liability in the premises.
Promptly after receipt by the Trustee of notice of any claim or the commencement
of any action for which it may seek indemnity from the Partnership hereunder,
the Trustee shall notify the Partnership in writing of such claim or the
commencement of such action. The Partnership shall have the right to assume the
defense thereof and the Trustee shall cooperate in the defense.
(b) The obligations of the Partnership under this Section to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for reasonable
expenses, disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to that
of the Securities 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
Securities.
SECTION 7.07. RELIANCE ON OFFICERS' CERTIFICATE.
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence, bad faith or willful misconduct 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, bad faith or willful misconduct on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted to be
taken by it under the provisions of this Indenture upon the faith thereof.
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SECTION 7.08. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Partnership shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act.
SECTION 7.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee with respect to the Securities issued
hereunder which shall at all times be a corporation organized and doing business
under the laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or other Person permitted to
act as trustee by the Commission, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least 50
million U.S. dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial, or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid 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. The Partnership may not,
nor may any Person directly or indirectly controlling, controlled by, or under
common control with the Partnership, serve as Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 7.10.
SECTION 7.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) The Trustee or any successor hereafter appointed, may at any time
resign with respect to the Securities of one or more series by giving written
notice thereof to the Partnership and by transmitting notice of resignation by
mail, first class postage prepaid, to the Securityholders of such series, as
their names and addresses appear upon the Security Register. Upon receiving such
notice of resignation, the Partnership shall promptly appoint a successor
trustee with respect to Securities of such series by or pursuant to an
Authorizing Resolution. 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 for the appointment of a successor trustee with respect to
Securities of such series, or any Securityholder of that series who has been a
bona fide holder of a Security or Securities for at least six months may 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 one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section
7.08 after written request therefor by the Partnership or by any
Securityholder who has been a bona fide holder of a Security or Securities
for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request
therefor by the Partnership or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or
a receiver of the Trustee or of its property shall be appointed or
consented to, 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,
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then, in any such case, the Partnership may remove the Trustee with respect to
all Securities and appoint a successor trustee by or pursuant to an Authorizing
Resolution, or, unless the Trustee's duty to resign is stayed as provided
herein, any Securityholder who has been a bona fide holder of a Security or
Securities for at least six months may, on behalf of that holder 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.
(c) The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to such series by so notifying the Trustee and the
Partnership and may appoint a successor Trustee for such series with the consent
of the Partnership.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities of a series pursuant to any of
the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Securities of one or more series or all of such
series, and at any time there shall be only one Trustee with respect to the
Securities of any particular series.
SECTION 7.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor trustee with
respect to all Securities, every such successor trustee so appointed shall
execute, acknowledge and deliver to the Partnership and to the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Partnership or the successor trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee with
respect to the Securities of one or more (but not all) series, the Partnership,
the retiring Trustee and each successor trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor trustee relates, (2)
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee and that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee shall, with respect to the Securities of that or those
series to which the appointment of such successor trustee relates, have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, and each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor trustee relates; but, on request of
the Partnership or any successor trustee, such retiring
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Trustee shall duly assign, transfer and deliver to such successor trustee, to
the extent contemplated by such supplemental indenture, the property and money
held by such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Partnership shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the time of
such acceptance such successor trustee shall be qualified and eligible under
this Article.
(e) Upon acceptance of appointment by a successor trustee as provided in
this Section, the Partnership shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the Securityholders,
as their names and addresses appear upon the Security Register. If the
Partnership fails to transmit such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be transmitted at the expense of the Partnership.
SECTION 7.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
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 the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.08 and eligible under the provisions
of Section 7.09, 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 any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 7.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE PARTNERSHIP.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent included therein.
SECTION 7.14. NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
6.01(3) with respect to Securities of such series, the Trustee may withhold the
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or responsible officers, of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
holders of the Securities. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
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ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. EVIDENCE OF ACTION BY SECURITYHOLDERS.
Whenever in this Indenture it is provided that the holders of a majority or
specified percentage in aggregate principal amount of the Securities of a
particular series may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the holders of such
majority or specified percentage of that series have joined therein may be
evidenced by any instrument or any number of instruments of similar tenor
executed by such holders of Securities of that series in person or by agent or
proxy appointed in writing.
If the Partnership shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver or other
action, the Partnership may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Partnership shall
have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other action may be
given before or after the record date, but only the Securityholders of record at
the close of business on the record date shall be deemed to be Securityholders
for the purposes of determining whether Securityholders of the requisite
proportion of Outstanding Securities of that series have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the Outstanding Securities of that
series shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
SECTION 8.02. PROOF OF EXECUTION BY SECURITYHOLDERS.
Subject to the provisions of Section 8.01, proof of the execution of any
instrument by a Securityholder (such proof will not require notarization) or his
agent or proxy and proof of the holding by any Person of any of the Securities
shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any instrument
may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be proved by the Security Register of
such Securities or by a certificate of the Security Registrar thereof.
(c) The Trustee may require such additional proof of any matter referred to
in this Section as it shall deem necessary.
SECTION 8.03. WHO MAY BE DEEMED OWNERS.
Prior to the due presentment for registration of transfer of any Security,
the Partnership, the Trustee, any paying agent and any Security Registrar may
deem and treat the Person in whose name such Security shall be registered upon
the books of the Partnership as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notice of ownership
or writing thereon made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the principal of, premium, if
any, and (subject to Section 2.03) interest on such Security and for all other
purposes; and neither the Partnership nor the Trustee nor any paying agent nor
any Security Registrar shall be affected by any notice to the contrary.
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SECTION 8.04. CERTAIN SECURITIES OWNED BY PARTNERSHIP DISREGARDED.
In determining whether the holders of the requisite aggregate principal
amount of Securities of a particular series have concurred in any direction,
consent or waiver under this Indenture, the Securities of that series that are
owned by the Partnership or any other obligor on the Securities of that series
or by any Person directly or indirectly controlling or controlled by or under
common control with the Partnership or any other obligor on the Securities of
that series 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 Securities of such series that the Trustee actually knows are so
owned shall be so disregarded. The Securities so owned that have been pledged in
good faith may be regarded as Outstanding for the purposes of this Section, if
the pledgee shall establish to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not a
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Partnership or any such other obligor. In case
of a dispute as to such right, any decision by the Trustee taken upon the advice
of counsel shall be full protection to the Trustee.
SECTION 8.05. ACTIONS BINDING ON FUTURE SECURITYHOLDERS.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the holders of the
majority or percentage in aggregate principal amount of the Securities of a
particular series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the evidence to be
included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee, and upon proof of holding as
provided in Section 8.02, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security, and of any Security issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Security. Any action taken
by the holders of the majority or percentage in aggregate principal amount of
the Securities of a particular series specified in this Indenture in connection
with such action shall be conclusively binding upon the Partnership, the Trustee
and the holders of all the Securities of that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF SECURITYHOLDERS.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Partnership and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect), without the
consent of the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein or in the
Securities of any series;
(b) to comply with Article Ten;
(c) to make any change that does not materially adversely affect the
interests of any Securityholder;
(d) to evidence and provide for successor trustees;
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(e) to add, change or eliminate any provision of this Indenture affecting
only Securities not yet issued; or
(f) to comply with any requirement of the Commission in connection with
qualification of this Indenture or any supplement hereto under the Trust
Indenture Act.
The Trustee is hereby authorized to join with the Partnership in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed by the Partnership and the Trustee without the consent of the
holders of any of the Securities at the time Outstanding, notwithstanding any of
the provisions of Section 9.02.
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
With the consent (evidenced as provided in Section 8.01) of the holders of
not less than a majority in aggregate principal amount of the Securities of each
series affected by such supplemental indenture or indentures at the time
Outstanding, the Partnership and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner not covered by Section 9.01 the rights of the holders of
the Securities of such series under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the holders of each
Security then Outstanding affected thereby, (i) extend the fixed maturity of any
Securities of any series, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof; (ii) change any obligation of the
Partnership to pay additional amounts with respect to the Securities; (iii)
reduce the amount of principal of any Security payable upon acceleration of the
maturity thereof; (iv) change the currency in which any Security or any premium
or interest is payable; (v) impair the right to enforce any payment on or with
respect to any Security; (vi) adversely change the right to convert or exchange,
including decreasing the conversion rate or increasing the conversion price of,
such Security (if applicable); (vii) reduce the percentage in principal amount
of outstanding Securities of any series, the consent of whose holders is
required for modification or amendment of this Indenture or for waiver of
compliance with certain provisions of this Indenture or for waiver of certain
defaults; or (viii) modify any of the above provisions.
It shall not be necessary for the consent of the Securityholders of any
series affected thereby under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
SECTION 9.03. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, this Indenture shall, with respect to such
series, be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Partnership and the holders of
Securities of the series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
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SECTION 9.04. SECURITIES AFFECTED BY SUPPLEMENTAL INDENTURES.
Securities of any series, affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, may bear a
notation in form approved by the Partnership, provided such form meets the
requirements of any exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture. If the Partnership shall so
determine, new Securities of that series so modified as to conform, in the
opinion of the Trustee and the Partnership, to any modification of this
Indenture contained in any such supplemental indenture may be prepared and
executed by the Partnership, authenticated by the Trustee and delivered in
exchange for the Securities of that series then Outstanding.
SECTION 9.05. EXECUTION OF SUPPLEMENTAL INDENTURES.
Upon the request of the Partnership, and upon the filing with the Trustee
of evidence of the consent of Securityholders required to consent thereto as
aforesaid, the Trustee shall join with the Partnership in the execution of such
supplemental indenture unless such supplemental indenture 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 supplemental indenture. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article is authorized or
permitted by, and conforms to the terms of, this Article and that it is proper
for the Trustee under the provisions of this Article to join in the execution
thereof; provided, however, that such Opinion of Counsel need not be provided in
connection with the execution of a supplemental indenture that establishes the
terms of a series of Securities pursuant to Section 2.01 hereof.
SECTION 9.06. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act in effect on such date.
ARTICLE X
SUCCESSOR
SECTION 10.01. PARTNERSHIP MAY CONSOLIDATE, ETC.
Subject to the terms of an Authorizing Resolution or supplemental indenture
with respect to any series of the Securities, nothing contained in this
Indenture or in any of the Securities shall prevent any consolidation or merger
of the Partnership with or into any other Person (whether or not affiliated with
the Partnership) or successive consolidations or mergers in which the
Partnership or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance, transfer or other disposition of the property of
the Partnership or its successor or successors as an entirety, or substantially
as an entirety, to any other Person (whether or not affiliated with the
Partnership or its successor or successors) authorized to acquire and operate
the same; provided, however, the Partnership hereby covenants and agrees that,
upon any such consolidation, merger, sale, conveyance, transfer or other
disposition, the due and punctual payment of the principal of and any premium
and interest on all of the Securities of all series in accordance with the terms
of each series, according to their tenor and the due and punctual performance
and observance of all the covenants and conditions of this Indenture with
respect to each series or established with respect to such series pursuant to
Section 2.01 to be kept or performed by the Partnership shall be expressly
assumed, by supplemental indenture reasonably satisfactory in form to the
Trustee executed and delivered to the Trustee by the entity formed by such
consolidation, or into which the Partnership shall have been merged, or by the
entity which shall have acquired such property.
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SECTION 10.02. SUCCESSOR SUBSTITUTED.
(a) In case of any such consolidation, merger, sale, conveyance, transfer
or other disposition and upon the assumption by the successor Person, by
supplemental indenture, executed and delivered to the Trustee and reasonably
satisfactory in form to the Trustee, of the due and punctual payment of the
principal of and any premium and interest on all of the Securities of all series
Outstanding and the due and punctual performance of all of the covenants and
conditions of this Indenture or established with respect to each series of the
Securities pursuant to Section 2.01 to be performed by the Partnership with
respect to each series, such successor Person shall succeed to and be
substituted for the Partnership with the same effect as if it had been named as
the Partnership herein, and thereupon the predecessor Person shall be relieved
of all obligations and covenants under this Indenture and the Securities.
(b) In case of any such consolidation, merger, sale, conveyance, transfer
or other disposition such changes in phraseology and form (but not in substance)
may be made in the Securities thereafter to be issued as may be appropriate.
(c) Nothing contained in this Indenture or in any of the Securities shall
prevent the Partnership from merging into itself or acquiring by purchase or
otherwise all or any part of the property of any other Person (whether or not
affiliated with the Partnership).
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01. SATISFACTION AND DISCHARGE OF INDENTURE.
If at any time: (a) the Partnership shall have delivered to the Trustee for
cancellation all Securities of a series theretofore authenticated (other than
any Securities that shall have been destroyed, lost or stolen and that shall
have been replaced or paid as provided in Section 2.07 and Securities for whose
payment money or Governmental Obligations have theretofore been deposited in
trust or segregated and held in trust by the Partnership and thereafter repaid
to the Partnership or discharged from such trust, as provided in Section 11.04);
or (b) all such Securities of a particular series not theretofore delivered to
the Trustee for cancellation (i) shall have become due and payable, or (ii) are
by their terms to become due and payable within one year or are to be called for
redemption within one year under arrangements reasonably satisfactory to the
Trustee for the giving of notice of redemption by the Trustee, in the name, and
at the expense of the Partnership, and the Partnership shall deposit or cause to
be deposited with the Trustee as trust funds an amount of money in U.S. dollars
sufficient, or non-callable Governmental Obligations, the principal of and
interest on which when due, will be sufficient 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 at maturity or upon redemption all Securities of that series not
theretofore delivered to the Trustee for cancellation, including principal and
any premium and interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Partnership shall also pay
or cause to be paid all other sums payable hereunder by the Partnership with
respect to such series, then this Indenture shall thereupon cease to be of
further effect with respect to such series except for the provisions of Sections
2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the date
of maturity or redemption date, as the case may be, and Sections 7.06 and 11.04,
that shall survive to such date and thereafter, and the Trustee, on demand of
the Partnership and at the cost and expense of the Partnership shall execute
proper instruments acknowledging satisfaction of and discharging this Indenture
with respect to such series.
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SECTION 11.02. DEPOSITED MONEYS TO BE HELD IN TRUST.
All moneys or Governmental Obligations deposited with the Trustee pursuant
to Section 11.01 shall be held in trust and shall be available for payment as
due, either directly or through any paying agent (including the Partnership
acting as its own paying agent), to the holders of the particular series of
Securities for the payment or redemption of which such moneys or Governmental
Obligations have been deposited with the Trustee.
SECTION 11.03. PAYMENT OF MONEYS HELD BY PAYING AGENTS.
In connection with the satisfaction and discharge of this Indenture all
moneys or Governmental Obligations then held by any paying agent under the
provisions of this Indenture shall, upon demand of the Partnership, be paid to
the Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys or Governmental Obligations.
SECTION 11.04. REPAYMENT TO PARTNERSHIP.
Any moneys or Governmental Obligations deposited with any paying agent or
the Trustee, or then held by the Partnership, in trust for payment of principal
of or premium or interest on the Securities of a particular series that are not
applied but remain unclaimed by the holders of such Securities for at least two
years after the date upon which the principal of and any premium or interest on
such Securities shall have respectively become due and payable, shall be repaid
to the Partnership upon its written request or (if then held by the Partnership)
shall be discharged from such trust; and thereupon the paying agent and the
Trustee shall be released from all further liability with respect to such moneys
or Governmental Obligations, and the holder of any of the Securities entitled to
receive such payment shall thereafter, as an unsecured general creditor, look
only to the Partnership for the payment thereof.
SECTION 11.05. REINSTATEMENT
If the Trustee or any paying agent is unable to apply any U.S. dollars or
Governmental Obligations in accordance with Section 11.01 hereof by reason of
any order of judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations of
the Partnership under this Indenture, and the Securities of that particular
series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 11.01 hereof until such time as the Trustee or any paying
agent is permitted to apply all such money in accordance with Section 11.01
hereof; provided, however, that, if the Partnership makes any payment with
respect to any Securities of that series following the reinstatement of its
obligations, the Partnership shall be subrogated to the rights of the holders of
the Securities of that series to receive such payment from the money held by the
Trustee or any paying agent.
ARTICLE XII
IMMUNITY OF THE GENERAL PARTNER, UNITHOLDERS, OFFICERS AND MEMBERS OF THE
BOARD OF SUPERVISORS
SECTION 12.01. NO RECOURSE.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against the General Partner or any unitholder,
officer or member of the Board of Supervisors, past, present or future as such,
of the Partnership or of any predecessor or successor, either directly or
through the Partnership or any such predecessor or successor, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely partnership
obligations, and that no such personal liability whatever shall attach to, or is
or shall be incurred by, the General Partner or
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any unitholders, officers or members of the Board of Supervisors as such, of the
Partnership or of any predecessor or successor, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against, the
General Partner or any unitholder, officer or member of the Board of Supervisors
as such, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or implied therefrom, are hereby expressly
waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issuance of such Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. EFFECT ON SUCCESSORS AND ASSIGNS.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Partnership shall bind its respective
successors and assigns, whether so expressed or not.
SECTION 13.02. ACTIONS BY SUCCESSOR.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Partnership shall and may be done and performed with like force and effect by
the corresponding board, committee or officer of any Person that shall at the
time be the lawful sole successor of the Partnership.
SECTION 13.03. NOTICES.
Except as otherwise expressly provided herein any notice or demand that by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the holders of Securities to or on the Partnership may be
given or served by being deposited first class postage prepaid in a post-office
letterbox addressed (until another address is filed in writing by the
Partnership with the Trustee), as follows: Suburban Propane Partners, L.P., ▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel. Any
notice, election, request or demand by the Partnership or any Securityholder to
or upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made in writing at the Corporate Trust Office of the
Trustee.
SECTION 13.04. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to holders of Securities of any event, such notice shall be
sufficiently given to holders of Securities if in writing and mailed,
first-class postage prepaid, to each holder of a Security affected by such
event, at the address of such holder as it appears in the Security Register, not
earlier than the earliest date, and not later than the latest date, prescribed
for the giving of such notice.
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In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice to holders of
Securities by mail, then such notification as shall be made with the approval of
the Trustee shall constitute sufficient notice to such holder for every purpose
hereunder. In any case where notice to holders of Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice mailed to
any particular holder of a Security shall affect the sufficiency of such notice
with respect to other holders of Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by holders of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 13.05. GOVERNING LAW.
This Indenture and each Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of said State, but without giving effect
to applicable principles of conflicts of law to the extent that the application
of the law of another jurisdiction would be required thereby.
SECTION 13.06. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 13.07. COMPLIANCE CERTIFICATES AND OPINIONS.
(a) Upon any application or demand by the Partnership to the Trustee to
take any action under any of the provisions of this Indenture, the Partnership
shall furnish to the Trustee an Officers' Certificate stating that all
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.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
in this Indenture shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 13.08. PAYMENTS ON BUSINESS DAYS.
Except as provided pursuant to Section 2.01 pursuant to an Authorizing
Resolution, and as set forth in an Officers' Certificate, or established in one
or more indentures supplemental to this Indenture, in any case where the date of
maturity of interest or principal of any Security or the date of redemption of
any Security shall not be a Business Day, then payment of interest or principal
(and premium, if any) may be made on the next succeeding Business Day with the
same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.
SECTION 13.09. CONFLICT WITH TRUST INDENTURE ACT.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Section 318(c) of the Trust Indenture
Act, such imposed duties shall control.
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SECTION 13.10. 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 13.11. SEPARABILITY.
In case any one or more of the provisions contained in this Indenture or in
the Securities of any series shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of such Securities,
but this Indenture and such Securities shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
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IN WITNESS WHEREOF, the parties hereto have caused this indenture to be
duly executed, all as of the date first written above.
SUBURBAN PROPANE PARTNERS, L.P.
By:
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Name:
Title:
By:
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Name:
Title:
[ ], as Trustee
By:
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Name:
Title: