EXHIBIT 4.2
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VALERO LOGISTICS OPERATIONS, L.P.,
ISSUER
▇▇▇▇▇▇ ▇.▇.,
GUARANTOR
AND
THE BANK OF NEW YORK,
TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF JULY 15, 2002
TO
INDENTURE
DATED AS OF JULY 15, 2002
----------
6-7/8% SENIOR NOTES DUE 2012
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TABLE OF CONTENTS
Page
ARTICLE I 6-7/8% SENIOR NOTES DUE 2012............................................2
SECTION 1.01 Designation of the Notes; Establishment of Form..................2
SECTION 1.02 Amount...........................................................2
SECTION 1.03 Redemption.......................................................2
SECTION 1.04 Conversion.......................................................3
SECTION 1.05 Maturity.........................................................3
SECTION 1.06 Place of Payment.................................................3
SECTION 1.07 Other Terms of the Notes due 2012................................3
ARTICLE II AMENDMENTS TO THE INDENTURE............................................3
SECTION 2.01 Definitions......................................................3
SECTION 2.02 Consolidation, Merger, Conveyance, Transfer or Lease.............5
SECTION 2.03 Covenants........................................................6
SECTION 2.04 Events of Default................................................9
ARTICLE III MISCELLANEOUS.........................................................9
SECTION 3.01 Execution as Supplemental Indenture..............................9
SECTION 3.02 Responsibility for Recitals, Etc. ...............................9
SECTION 3.03 Provisions Binding on Partnership's and Guarantor's Successors...9
SECTION 3.04 Governing Law....................................................9
SECTION 3.05 Execution and Counterparts.......................................9
SECTION 3.06 Capitalized Terms...............................................10
EXHIBIT A - FORM OF SECURITY....................................................A-1
EXHIBIT B - FORM OF SUPPLEMENTAL INDENTURE......................................B-1
-i-
FIRST SUPPLEMENTAL INDENTURE, dated as of July 15, 2002 (the "
First
Supplemental Indenture"), among Valero Logistics Operations, L.P., a Delaware
limited partnership having its principal office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Partnership"), ▇▇▇▇▇▇ ▇.▇., a Delaware limited
partnership (the "Guarantor"), and The Bank of
New York, a
New York banking
corporation, as trustee (the "Trustee").
RECITALS OF THE PARTNERSHIP
The Partnership, the Guarantor and the Trustee have heretofore executed
and delivered the Indenture dated as of July 15, 2002 (the "Original Indenture,"
and as supplemented from time to time, the "Indenture"), providing for the
issuance from time to time of one or more series of the Partnership's
Securities, each to be guaranteed by the Guarantor and the terms of which are to
be determined as set forth in Section 301 of the Original Indenture.
Section 901 of the Original Indenture provides, among other things,
that the Partnership, the Guarantor and the Trustee may enter into indentures
supplemental to the Original Indenture for, among other things, the purpose of
establishing the form or terms of Securities of any series as permitted by
Sections 201 and 301 of the Original Indenture.
Section 901 of the Original Indenture also permits the execution of
supplemental indentures without the consent of any Holders to, among other
things, (i) add to the covenants of the Partnership such further covenants,
restrictions, conditions or provisions as the Partnership shall consider to be
appropriate for the benefit of the Holders of all or any series of Securities,
(ii) add any additional Defaults or Events of Default in respect of, all or any
series of Securities, and (iii) change or eliminate any of the provisions of the
Indenture, provided that, any such change or elimination shall become effective
only when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefits of
such provision.
The Partnership desires to create a series of the Securities, which
series shall be designated the "6-7/8% Senior Notes due 2012" (the "Notes due
2012"), and all action on the part of the Partnership necessary to authorize the
issuance of the Notes due 2012 under the Original Indenture and this
First
Supplemental Indenture has been duly taken.
The Partnership, pursuant to the foregoing authority, proposes in and
by this
First Supplemental Indenture to supplement and amend the Indenture
insofar as it will apply only to the Notes due 2012.
All acts and things necessary to make the Notes due 2012, when duly
issued by the Partnership and when executed on behalf of the Partnership and
completed, authenticated and delivered by the Trustee as provided in the
Original Indenture and this
First Supplemental Indenture, the valid and binding
obligations of the Partnership and to constitute these presents a valid and
binding supplemental indenture and agreement according to its terms, have been
done and performed.
Now, Therefore, This
First Supplemental Indenture Witnesseth:
That in consideration of the premises and the issuance of the Notes due
2012, the Partnership, the Guarantor and the Trustee mutually covenant and
agree, for the equal and proportionate benefit of all Holders of the Notes due
2012, as follows:
ARTICLE I
6-7/8% SENIOR NOTES DUE 2012
SECTION 1.01 Designation of the Notes; Establishment of Form.
A series of Securities designated "6-7/8% Senior Notes due 2012" is
established hereby, and the form thereof (including the notation of the
Guarantee) shall be substantially as set forth in Exhibit A hereto, which is
incorporated into and shall be deemed a part of this
First Supplemental
Indenture, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by the
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as the Partnership may deem
appropriate or as may be required or appropriate to comply with any laws or with
any rules made pursuant thereto or with the rules of any securities exchange or
automated quotation system on which the Notes due 2012 may be listed or traded,
or to conform to general usage, or as may, consistently with the Indenture, be
determined by the officers executing such Notes due 2012, as evidenced by their
execution thereof.
The Notes due 2012 will initially be issued in permanent global form,
substantially in the form set forth in Exhibit A hereto, as a Global Security,
registered in the name of the Depositary or its nominee. The Depositary Trust
Company shall be the Depositary for such Global Securities.
The Partnership initially appoints the Trustee to act as paying agent
and Registrar with respect to the Notes due 2012.
SECTION 1.02 Amount.
The Trustee shall authenticate and deliver the Notes due 2012 for
original issue in an initial aggregate principal amount of up to $100,000,000
upon Partnership Order for the authentication and delivery of such aggregate
principal amount of the Notes due 2012. The authorized aggregate principal
amount of the Notes due 2012 may be increased at any time hereafter and the
series comprised thereby may be reopened for issuances of additional Notes due
2012, without the consent of any Holder. The Notes due 2012 issued on the date
hereof and any such additional Notes due 2012 that may be issued hereafter shall
be part of the same series of Securities referred to herein as the "Notes due
2012."
SECTION 1.03 Redemption.
(a) There shall be no sinking fund for the retirement of the
Notes due 2012 or other mandatory redemption obligation in respect
thereof.
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(b) The Partnership, at its option, may redeem the Notes due
2012 at any time and from time to time, in accordance with the
provisions of the Notes due 2012 and Article XI of the Indenture.
SECTION 1.04 Conversion.
The Notes due 2012 shall not be convertible into any other securities.
SECTION 1.05 Maturity.
The Stated Maturity of the Notes due 2012 shall be July 15, 2012.
SECTION 1.06 Place of Payment.
Any Notes due 2012 that may be issued in certificated, non-global form
shall be payable at the corporate trust office of the Trustee in The City of
New
York, which office, on the date of this
First Supplemental Indenture, is located
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The Notes due 2012 may be
presented for registration of transfer or exchange at the office of the Trustee
at which its corporate trust business is principally administered in the United
States, which office, on the date of this
First Supplemental Indenture, is
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Notices and demands to
or upon the Partnership and the Guarantor in respect of the Notes due 2012 may
be served at such office.
SECTION 1.07 Other Terms of the Notes due 2012.
Without limiting the foregoing provisions of this Article I, the terms
of the Notes due 2012 shall be as provided in the form thereof set forth in
Exhibit A hereto and as provided in the Indenture.
ARTICLE II
AMENDMENTS TO THE INDENTURE
The amendments and supplements contained in this Article II shall apply
to the Notes due 2012 only and (except as and to the extent expressly so
provided at the time the form and terms of such other series are established as
provided in Sections 201 and 301 of the Original Indenture) not to any other
series of Securities issued under the Original Indenture, and (except as
aforesaid) any covenants, guarantees and other agreements provided herein are
expressly being included solely for the benefit of (i) the Notes due 2012 and
the Holders thereof and (ii) any Securities of any other series to which such
amendment and supplements have been made applicable and the Holders thereof.
These amendments and supplements shall be effective only for so long as there
remain Outstanding any Notes due 2012 or any Securities of any other series to
which such amendments and supplements have been made applicable, as the case may
be.
SECTION 2.01 Definitions.
Section 101 of the Original Indenture is amended by inserting in their
appropriate alphabetical position, the following definitions:
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"Change of Control" means the occurrence of any transaction that
results in:
(1) the failure of Valero Energy Corporation or an Investment
Grade Person to own, directly or indirectly, 51% of the general partner
interests in the Guarantor;
(2) the failure of the Guarantor or an Investment Grade Person
to own, directly or indirectly, all of the general partner interests in
the Partnership; or
(3) the failure of the Guarantor or an Investment Grade Person
to own, directly or indirectly, all of the limited partner interests in
the Partnership.
"First Supplemental Indenture" means the First Supplemental Indenture
dated as of July 15, 2002 among the Partnership, the Guarantor and the Trustee,
which supplemental indenture amends and supplements this Indenture in connection
with the establishment of a series of Securities designated as "6 7/8% Senior
Notes due 2012".
"Funded Debt" means all Debt maturing one year or more from the date of
the creation thereof, all Debt directly or indirectly renewable or extendable,
at the option of the debtor, by its terms or by the terms of any instrument or
agreement relating thereto, to a date one year or more from the date of the
creation thereof, and all Debt under a revolving credit or similar agreement
obligating the lender or lenders to extend credit over a period of one year or
more.
"Investment Grade Person" means a Person that has issued unsecured
senior debt that has at least two of the following ratings on the date the
transaction constituting a Change of Control is consummated:
(1) BBB- or above, in the case of S&P (or its equivalent under
any successor rating categories of S&P);
(2) Baa3 or above, in the case of Moody's (or its equivalent
under any successor rating categories of Moody's); or
(3) the equivalent in respect of the rating categories of any
rating agencies substituted for S&P or Moody's.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Notes due 2012" means the 6 7/8% Senior Notes due 2012 of the
Partnership, established pursuant to the First Supplemental Indenture.
"Other Affected Series" means any series of Securities (other than the
Notes due 2012) to which the amendments of the Original Indenture set forth in
Article II of the First Supplemental Indenture shall have been made applicable.
"S&P" means Standard & Poor's Ratings Services, a Division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
"Subsidiary Guarantor" means, as at any date, any Subsidiary that has
become and then is obligated as a guarantor as provided in Section 1011, not
having been released pursuant to Section 1012.
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SECTION 2.02 Consolidation, Merger, Conveyance, Transfer or Lease.
Article VIII of the Original Indenture is amended by restating Sections
801 and 802 in their entirety:
"SECTION 801. Partnership and Subsidiary Guarantors May Consolidate,
Etc., Only on Certain Terms.
The Partnership shall not, and subject to Section 1012, shall
not permit any Subsidiary Guarantor to, consolidate with or merge into
any other Person or sell, lease or transfer its properties and assets
as, or substantially as, an entirety to, any Person, unless:
(1) (A) in the case of a merger, the Partnership or such
Subsidiary Guarantor is the surviving entity, or (B) the Person formed
by such consolidation or into which the Partnership or such Subsidiary
Guarantor is merged or the Person which acquires by sale or transfer,
or which leases, the properties and assets of the Partnership or such
Subsidiary Guarantor as, or substantially as, an entirety expressly
assumes, by an indenture supplemental hereto, or a supplement to the
applicable Subsidiary Guarantee, as the case may be, executed and
delivered to the Trustee, in form reasonably satisfactory to the
Trustee, all of the obligations of the Partnership or such Subsidiary
Guarantor, as the case may be, under the Indenture and the Securities,
or the applicable Subsidiary Guarantee, as the case may be.
(2) the surviving entity or successor Person is a Person
organized and existing under the laws of the United States of America,
any state thereof or the District of Columbia;
(3) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and
(4) the Partnership has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, sale, transfer or lease and such
supplemental indenture required, if any, comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Partnership or any Subsidiary
Guarantor with, or merger of the Partnership or any Subsidiary
Guarantor into, any other Person or any sale, transfer or lease of the
properties and assets of the Partnership or any Subsidiary Guarantor
as, or substantially as, an entirety in accordance with Section 801,
the successor Person formed by such consolidation or into which the
Partnership or such Subsidiary Guarantor is merged or to which such
sale, transfer or lease is made shall (and, in the case of any
Subsidiary Guarantor, its Subsidiary
5
Guarantee will provide that it shall) succeed to, and be substituted
for, and may exercise every right and power of, the Partnership or such
Subsidiary Guarantor under this Indenture and the Securities, or the
Subsidiary Guarantee of such Subsidiary Guarantor, as the case may be
with the same effect as if such successor Person had been named
originally as the Partnership or such Subsidiary Guarantor herein or
therein, and thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants under this
Indenture and the Securities or such Subsidiary Guarantee, as the case
may be."
SECTION 2.03 Covenants.
Article X of the Original Indenture is amended by inserting the
following new sections in their entirety:
"SECTION 1011 Future Subsidiary Guarantors.
The Partnership shall cause each Subsidiary of the Partnership
that guarantees or becomes a co-obligor in respect of any Funded Debt
of the Partnership (including, without limitation, following any
release of such Subsidiary pursuant to Section 1012 from any guarantee
previously provided by it under this Section 1011) to (A) cause the
Notes due 2012 to be equally and ratably guaranteed by such Subsidiary,
but only to the extent that the Notes due 2012 are not already
guaranteed by such Subsidiary on reasonably comparable terms and (B)
promptly execute and deliver to the Trustee a supplemental indenture in
substantially the form attached as Exhibit B to the First Supplemental
Indenture pursuant to which such Subsidiary will guarantee payment of
the Notes due 2012 and any Securities of any Other Affected Series.
SECTION 1012 Release of Guaranty.
Notwithstanding anything to the contrary in Section 1011, in
the event that any Subsidiary that has guaranteed the Notes due 2012
and/or the Securities of such Other Affected Series pursuant to Section
1011 shall no longer be a guarantor of any Funded Debt of the
Partnership other than the Notes due 2012 and/or the Securities of such
Other Affected Series, and so long as no Default or Event of Default
with respect to the Notes due 2012 shall have occurred or be
continuing, such Subsidiary, upon giving written notice to the Trustee
to the foregoing effect, shall be deemed to be released from all of its
obligations in respect of the Notes due 2012 and/or the Securities of
such Other Affected Series, and its guarantee thereof and this
Indenture without further act or deed and such guarantee of such
Subsidiary shall be terminated and of no further force or effect.
Following the receipt by the Trustee of any such notice, the
Partnership shall cause this Indenture to be amended as provided in
Section 901 to evidence such release and termination; provided,
however, that the failure to so amend this
6
Indenture shall not affect the validity of the release and termination
of such guarantee of such Subsidiary.
SECTION 1013 Change of Control.
Upon the occurrence of a Change of Control, the Partnership
will make an offer to purchase all or any part (equal to $1,000 or an
integral multiple thereof) of the Notes due 2012 and/or the Securities
of such Other Affected Series pursuant to the offer described below
(the "Change of Control Offer") at a price in cash (the "Change of
Control Payment") equal to 100% of the aggregate principal amount
thereof plus accrued and unpaid interest, if any, to the date of
purchase. Within 30 days following any Change of Control, the
Partnership will mail a notice to each Holder of Notes due 2012 and/or
the Securities of such Other Affected Series, with a copy to the
Trustee, with the following information:
(1) a Change of Control Offer is being made pursuant to this
Section 1013 and that all Notes due 2012 and/or the Securities of such
Other Affected Series, properly tendered pursuant to such Change of
Control Offer will be accepted for payment;
(2) the purchase price and the purchase date, which will be no
earlier than 30 days nor later than 60 days from the date such notice
is mailed, except as may be otherwise required by applicable law (the
"Change of Control Payment Date");
(3) any Notes due 2012 and/or the Securities of such Other
Affected Series not properly tendered will remain outstanding and
continue to accrue interest;
(4) unless the Partnership defaults in the payment of the
Change of Control Payment, all Notes due 2012 and/or the Securities of
such Other Affected Series accepted for payment pursuant to the Change
of Control Offer will cease to accrue interest on the Change of Control
Payment Date;
(5) Holders electing to have any Notes due 2012 and/or the
Securities of such Other Affected Series purchased pursuant to a Change
of Control Offer will be required to surrender the same, with the form
entitled "Option of Holder to Elect Purchase" on the reverse thereof
completed, to the paying agent specified in the notice at the address
specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date;
(6) Holders will be entitled to withdraw their tendered Notes
due 2012 and/or Securities of such Other Affected Series and their
election to require the Partnership to purchase the same, provided that
the paying agent receives, not later than the close of business on the
last day of the Offer Period (as defined below), a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of Notes due 2012 and/or Securities of such Other
Affected Series tendered for purchase, and a statement that such Holder
is
7
withdrawing his tendered Notes due 2012 and/or Securities of such Other
Affected Series and his election to have the same purchased; and
(7) that Holders whose Notes due 2012 and/or Securities of
such Other Affected Series are being purchased only in part will be
issued new Notes due 2012 and/or Securities of such Other Affected
Series equal in principal amount to the unpurchased portion of the
Notes due 2012 and/or Securities of such Other Affected Series
surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof.
The Change of Control Offer shall remain open for a period of
20 Business Days following commencement except to the extent a longer
period is required by applicable law (the "Offer Period"). The
Partnership will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder
to the extent such laws or regulations are applicable in connection
with the repurchase of the Notes due 2012 and/or Securities of such
Other Affected Series pursuant to a Change of Control Offer. To the
extent that the provisions of any securities laws or regulations
conflict with the provisions of this Indenture, the Partnership will
comply with the applicable securities laws and regulations and shall
not be deemed to have breached its obligations described in this
Indenture by virtue thereof.
On the Change of Control Payment Date, to the extent permitted
by law, the Partnership will
(1) accept for payment all Notes due 2012 and/or Securities of
Other Affected Series or portions thereof properly tendered pursuant to
the Change of Control Offer,
(2) deposit with the paying agent an amount equal to the
aggregate Change of Control Payment in respect of all Notes due 2012
and/or Securities of Other Affected Series or portions thereof so
tendered, and
(3) deliver, or cause to be delivered, to the Trustee for
cancellation the Notes due 2012 and/or Securities of Other Affected
Series so accepted together with an Officers' Certificate stating that
such Notes due 2012 and/or Securities of Other Affected Series or
portions thereof have been tendered to and purchased by the
Partnership. The paying agent will promptly mail to each Holder of
Notes due 2012 and/or Securities of Other Affected Series, the Change
of Control Payment for the same and the Trustee will promptly
authenticate and mail to each Holder a new Security of like series and
terms as, and equal in principal amount to any unpurchased portion of
the Security surrendered, if any, provided, that each such new Security
will be in a principal amount of $1,000 or an integral multiple
thereof. The Partnership will publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change
of Control Payment Date.
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SECTION 2.04 Events of Default.
The period following clause (7) of Section 501 of the Original
Indenture shall be replaced with "; or" and the following additional Event of
Default shall be added to those set forth in clauses (1)-(7) of Section 501 of
the Original Indenture in relation only to the Notes due 2012 and the Securities
of any Other Affected Series:
"(8) failure to pay any Debt of the Partnership in excess of
$10 million, whether at final maturity (after the expiration of any
applicable grace periods) or upon acceleration of the maturity thereof,
if such indebtedness is not discharged, or such acceleration is not
annulled, within 10 days after there has been given, by registered or
certified mail, to the Partnership by the Trustee or to the Partnership
and the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Notes due 2012, or of the Securities of any Other
Affected Series, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder."
ARTICLE III
MISCELLANEOUS
SECTION 3.01 Execution as Supplemental Indenture. This First
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this First Supplemental Indenture forms a part thereof. Except as
herein expressly otherwise defined, the use of the terms and expressions herein
is in accordance with the definitions, uses and constructions contained in the
Original Indenture.
SECTION 3.02 Responsibility for Recitals, Etc. The recitals herein and
in the Notes due 2012 (except in the Trustee's certificate of authentication)
shall be taken as the statements of the Partnership, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no representations
as to the validity or sufficiency of this First Supplemental Indenture or of the
Notes due 2012. The Trustee shall not be accountable for the use or application
by the Partnership of the Notes due 2012 or of the proceeds thereof.
SECTION 3.03 Provisions Binding on Partnership's and Guarantor's
Successors. All the covenants, stipulations, promises and agreements in this
First Supplemental Indenture contained by each of the Partnership and the
Guarantor shall bind its respective successors and assigns whether so expressed
or not.
SECTION 3.04 Governing Law. THIS FIRST SUPPLEMENTAL INDENTURE AND EACH
NOTE DUE 2012 SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF
NEW YORK.
SECTION 3.05 Execution and Counterparts. This First Supplemental
Indenture may be executed with counterpart signature pages or in any number of
counterparts, each of
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which shall be an original but such counterparts shall together constitute but
one and the same instrument.
SECTION 3.06 Capitalized Terms. Capitalized terms not otherwise defined
in this First Supplemental Indenture shall have the respective meanings assigned
to them in the Original Indenture.
(THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.)
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
Partnership:
VALERO LOGISTICS OPERATIONS, L.P.
By: ▇▇▇▇▇▇ ▇▇, Inc.,
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: President and Chief Executive Officer
--------------------------------------
Guarantor:
▇▇▇▇▇▇ ▇.▇.
By: Riverwalk Logistics, L.P.
Its General Partner
By: ▇▇▇▇▇▇ ▇▇, LLC,
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: President and Chief Executive Officer
--------------------------------------
Trustee:
THE BANK OF
NEW YORK, AS TRUSTEE
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Title: Vice President
------------------------------------------
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EXHIBIT A
[FORM OF SECURITY][FACE OF SECURITY]
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE
DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF, TRANSFER OF, OR IN EXCHANGE
FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE
FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION, TO THE PARTNERSHIP OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.](1)
VALERO LOGISTICS OPERATIONS, L.P.
6 7/8% SENIOR NOTE DUE 2012
NO. U.S.$
-------------- ---------------
CUSIP NO.
--------------
VALERO LOGISTICS OPERATIONS, L.P., a Delaware limited partnership
(herein called the "Partnership," which term includes any successor Person under
the Indenture hereinafter referred to), for value received, hereby promises to
pay to ________________________________________, or registered assigns, the
principal sum of __________________________ United States Dollars on July 15,
2012, and to pay interest thereon from July 15, 2002, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on January 15 and July 15 in each year, commencing January 15,
2003 at the rate of 6 7/8% per annum, until the principal hereof is paid or made
available for payment, and at the rate of 6 7/8% per annum on any overdue
principal and premium and on any overdue installment of interest. The amount of
interest payable for any period shall be computed on the basis of twelve 30-day
months and a 360-day year. The amount of interest payable for any partial period
shall be computed on the basis of a 360-day year of twelve 30-day months and the
days elapsed in any partial month. In the event that any date on which interest
is payable on this Security is not a Business Day, then a payment of the
interest payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay) with the same force and effect as if made on the date the payment was
originally payable. A "Business Day" shall mean, when used with respect to any
Place of Payment, each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or obligated by law, executive order or regulation to close. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
January 1 or July 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
----------
(1) Insert in Global Securities only.
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to any Special Record Date, or be
paid at such time in any other lawful manner not inconsistent with the
requirements of any securities exchange or automated quotation system on which
the Securities of this series may be listed or traded, and upon such notice as
may be required by such exchange or automated quotation system, all as more
fully provided in such Indenture.
[Payment of the principal of (and premium, if any) and interest on this
Security will be made by transfer of immediately available funds to a bank
account in the Borough of Manhattan, The City of
New York designated by the
Holder in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts.](2)
[Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Partnership maintained for
that purpose in the Borough of Manhattan, The City of
New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Partnership by United States Dollar
check mailed to the addresses of the Persons entitled thereto as such addresses
shall appear in the Security Register or by transfer to a United States Dollar
account maintained by the payee with a bank in The City of
New York (so long as
the applicable Paying Agent has received proper transfer instructions in writing
by the Record Date prior to the applicable Interest Payment Date).](3)
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
----------
(2) Insert in Global Securities only.
(3) Insert in Definitive Securities only.
A-2
IN WITNESS WHEREOF, the Partnership has caused this instrument to be
duly executed.
Dated:
---------------------------
VALERO LOGISTICS OPERATIONS, L.P.
By: ▇▇▇▇▇▇ ▇▇, Inc.
Its General Partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:
---------------------------
THE BANK OF NEW YORK, AS TRUSTEE
By:
--------------------------------------
Authorized Signatory
A-3
[FORM OF REVERSE OF SECURITY]
VALERO LOGISTICS OPERATIONS, L.P.
6 7/8% SENIOR NOTE DUE 2012
This Security is one of a duly authorized issue of senior securities
of the Partnership (herein called the "Securities"), issued and to be issued
in one or more series under an Indenture dated as of July 15, 2002 (the
"Indenture"), among the Partnership, the Guarantor (defined below) and The Bank
of New York, as Trustee (the "Trustee," which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, obligations, duties and immunities thereunder of the
Partnership, the Guarantor, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. As provided in the Indenture, the Securities may be issued in one or
more series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest, if any, at different
rates, may be subject to different redemption provisions, if any, may be subject
to different sinking, purchase or analogous funds, if any, may be subject to
different covenants and Events of Default and may otherwise vary as in the
Indenture provided or permitted. This Security is one of the series designated
on the face hereof.
This Security is the senior unsecured obligation of the Partnership and
is guaranteed pursuant to a guarantee (the "Guarantee") by ▇▇▇▇▇▇ ▇.▇., a
Delaware limited partnership (the "Guarantor"). The Guarantee is the senior
unsecured obligation of the Guarantor.
The Securities of this series are subject to redemption upon not less
than 30 nor more than 60 days' notice by mail, at any time as a whole or from
time to time in part, at the election of the Partnership at a Redemption Price
equal to the greater of (1) 100% of the principal amount of this Security then
Outstanding to be redeemed, or (2) the sum of the present values of the
remaining scheduled payments of principal and interest thereon (exclusive of the
payment of interest accrued to the Redemption Date) computed by discounting such
payments from their respective scheduled dates of payment to the Redemption Date
on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at a rate equal to the sum of 30 basis points plus the Adjusted
Treasury Rate on the third Business Day prior to the Redemption Date, as
calculated by an Independent Investment Banker, plus accrued and unpaid
interest, up to, but not including, the Redemption Date.
For purposes of determining the Redemption Price, the following
definitions are applicable:
"Adjusted Treasury Rate" means the yield, under the heading which
represents the average for the week immediately preceding the week of
publication, appearing in the then most recently published statistical release
designated "H.15(519)" or any successor publication which is published weekly by
the Board of Governors of the Federal Reserve System and which contains yields
on actively traded U.S. Treasury securities adjusted to constant maturity under
the caption "Treasury Constant Maturities," for the maturity corresponding to
the Comparable Treasury Issue (if no maturity is within three months before or
after the remaining term of this Security, yields for the two published
maturities most closely corresponding to the Comparable Treasury Issue will be
determined and the Adjusted Treasury Rate will be interpolated or extrapolated
from such yields on a straight line basis, rounding to the nearest month); or if
such release (or any successor release) is not published during the week
including or immediately preceding the calculation date or does not contain such
yields, the rate per annum equal to the semiannual equivalent yield to maturity
of the Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the U.S. Treasury security selected
by an Independent Investment Banker as having a maturity comparable to the
remaining term of this Security that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of this
Security, or, if, in the reasonable judgment of the Independent Investment
Banker, there is no such security, then the Comparable Treasury Issue will mean
the U.S. Treasury security or securities selected by the Independent Investment
Banker as having an actual or interpolated maturity or maturities comparable to
the remaining term of this Security.
A-4
"Comparable Treasury Price" means (1) the average of five Reference
Treasury Dealer Quotations for the third Business Day prior to the applicable
Redemption Date, after excluding the highest and lowest Reference Treasury
Dealer Quotations, or (2) if the Independent Investment Banker obtains fewer
than five such Reference Treasury Dealer Quotations, the average of all such
quotations.
"Independent Investment Banker" means ▇.▇. ▇▇▇▇▇▇ Securities Inc. and
any successor firm selected by the Partnership, or if any such firm is unwilling
or unable to serve as such, an independent investment banking institution of
national standing appointed by the Partnership.
"Reference Treasury Dealer" means each of up to five dealers to be
selected by the Partnership; provided that if any of the foregoing ceases to be,
and has no affiliate that is, a primary U.S. governmental securities dealer (a
"Primary Treasury Dealer"), the Partnership will substitute for it another
Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date for this Security, the
average, as determined by the Independent Investment Banker, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the Independent
Investment Banker and the Partnership at 5:00 p.m., New York City time, on the
third Business Day preceding such Redemption Date.
In the case of any redemption of Securities, interest installments due
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more predecessor Securities, of record at the close of
business on the relevant record date referred to on the face hereof. Securities
(or portions thereof) for whose redemption and payment provision is made in
accordance with the Indenture shall cease to bear interest from and after the
Redemption Date.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to the Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
Upon the occurrence of a Change of Control, the Partnership will make
an offer to purchase all or any part (equal to $1,000 or an integral multiple
thereof) of each Holder's Securities of this series (the "Change of Control
Offer") at a price in cash equal to 100% of the aggregate principal amount
thereof plus accrued and unpaid interest, if any, thereon to the date of
purchase. Within 30 days following any Change of Control, the Partnership will
mail a notice to each such Holder of Securities of this series setting forth the
procedures governing the Change of Control Offer as required by the Indenture
and information regarding such other matters as is required under and as more
fully provided in Section 1013 of the Indenture. As more fully provided in
Section 1013 of the Indenture, the Holder of this Security may elect to have
this Security or a portion hereof in an authorized denomination purchased by
completing the form entitled "Option of Holder to Elect Purchase" appearing
below and tendering this Security pursuant to the Change of Control Offer.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Partnership and the Guarantor and any Subsidiary Guarantor and the rights of
the Holders of the Securities of each series to be affected under the Indenture
at any time by the Partnership and the Guarantor and any Subsidiary Guarantor
and the Trustee with the consent of the Holders of a majority in principal
amount of the Securities at the time Outstanding of all series to be affected
(voting as one class). The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Partnership or the Guarantor with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
A-5
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Partnership,
which is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place(s) and rate, and in the coin or
currency, herein prescribed.
[This Global Security or portion hereof may not be exchanged for
Definitive Securities of this series except in the limited circumstances
provided in the Indenture.
The holders of beneficial interests in this Global Security will not be
entitled to receive physical delivery of Definitive Securities except as
described in the Indenture and will not be considered the Holders hereof for any
purpose under the Indenture.](4)
[As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Partnership in The City of New York, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Partnership and the Security Registrar duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of authorized denominations and for
a like aggregate principal amount, will be issued to the designated transferee
or transferees.](5)
The Securities of this series are issuable only in registered form,
without coupons, in denominations of U.S. $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, the Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Partnership may require payment of a sum sufficient to
cover any transfer tax or other similar governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Partnership, the Trustee and any agent of the Partnership or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, regardless of whether this Security be overdue, and neither
the Partnership, the Trustee nor any such agent shall be affected by notice to
the contrary.
Obligations of the Partnership under the Indenture and the Securities
thereunder, including this Security, are non-recourse to ▇▇▇▇▇▇ ▇▇, Inc. (the
"General Partner") and the general partner of the Guarantor, as applicable, and
their Affiliates (other than the Partnership and the Guarantor), and payable
only out of cash flow and assets of the Partnership or the Guarantor, as the
case may be. The Trustee, and each Holder of a Security by its acceptance
hereof, will be deemed to have agreed in the Indenture that (1) neither the
General Partner, the general partner of the Guarantor nor their respective
assets (nor any of its Affiliates other than the Partnership and the Guarantor,
nor their respective assets) shall be liable for any of the obligations of the
Partnership or the Guarantor under the Indenture or
----------
(4) Insert in Global Securities only.
(5) Insert in Definitive Securities only.
A-6
such Securities, including this Security, and (2) no director, officer,
employee, stockholder or unitholder, as such, of the Partnership, the Guarantor,
the Trustee, the General Partner, the general partner of the Guarantor or any
Affiliate of any of the foregoing entities shall have any personal liability in
respect of the obligations of the Partnership or the Guarantor under the
Indenture or such Securities by reason of his, her or its status.
The Indenture provides that the Partnership and the Guarantor (a) will
be discharged from any and all obligations in respect of the Securities (except
for certain obligations described in the Indenture), or (b) need not comply with
certain restrictive covenants of the Indenture, in each case if the Partnership
deposits, in trust, with the Trustee money or U.S. Government Obligations (or a
combination thereof) which through the payment of interest thereon and principal
thereof in accordance with their terms will provide money, in an amount
sufficient to pay all the principal of and interest of the Securities, but such
money need not be segregated from other funds except to the extent required by
law.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
[FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address of Assignee)
the within instrument of VALERO LOGISTICS OPERATIONS, L.P. and does hereby
irrevocably constitute and appoint ________________________ Attorney to transfer
said instrument on the books of the within-named Partnership, with full power of
substitution in the premises.
Please Insert Social Security or
Other Identifying Number of Assignee:
------------------------------------- -------------------------------------
Dated:
------------------------------- -------------------------------------
(Signature)
Signature Guarantee:
------------------------------------------------------------
(Participant in a Recognized Signature
Guaranty Medallion Program)
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.](6)
----------
(6) Insert this assignment form as a separate page in Definitive Securities
only.
A-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Partnership
pursuant to Section 1013 of the Indenture, check the box below:
[ ] Section 1013
If you want to elect to have only part of the Security purchased by the
Partnership pursuant to Section 1013 of the Indenture, state the amount you
elect to have purchased.
$ Your Signature:
---------------- --------------------------------------------
(sign exactly as your name appears on the
face of the Note)
Date: Tax Identification No.:
------------ ------------------------------------
Signature Guarantee:
---------------------------------------
GUARANTEE
The Guarantor (which term includes any successor Person in such
capacity under the Indenture), has fully, unconditionally and absolutely
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture, the due and punctual payment of the principal of,
and premium, if any, and interest on the Securities and all other amounts due
and payable under the Indenture and the Securities by the Partnership.
The obligations of the Guarantor to the Holders of Securities and to
the Trustee pursuant to the Guarantees and the Indenture are expressly set forth
in Article XIV of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Guarantee.
Guarantor:
▇▇▇▇▇▇ ▇.▇.
By: Riverwalk Logistics, L.P.
Its General Partner
By: ▇▇▇▇▇▇ ▇▇, LLC,
Its General Partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
A-8
EXHIBIT B
[FORM OF SUPPLEMENTAL INDENTURE]
SUPPLEMENTAL INDENTURE, dated as of __________ __, _____ (the
"Supplemental Indenture"), among (i) VALERO LOGISTICS OPERATIONS, L.P., a
Delaware limited partnership (the "Partnership"), (ii) ▇▇▇▇▇▇ ▇.▇., a Delaware
limited partnership (the "Guarantor"), (iii) [Name of Subsidiary Guarantor], a
____________________________ and a subsidiary of the Partnership (the
"Subsidiary Guarantor") and (iv) [Name of Trustee], a
___________________________, as trustee (the "Trustee").
RECITALS OF THE PARTNERSHIP
The Partnership and the Guarantor have heretofore executed and
delivered to the Trustee the Indenture dated as of July 15, 2002 (the
"Original Indenture"), providing for the issuance from time to time of one or
more series of the Partnership's unsecured senior debentures, notes or other
evidences of indebtedness (the "Securities"), to be guaranteed by the Guarantor,
and the terms of which are to be determined as set forth in Section 301 of the
Original Indenture.
Pursuant to the provisions of Sections 201, 301 and 901 of the Original
Indenture, as the same has been and may from time to time hereafter be amended
and supplemented (as at any time so amended and supplemented, the "Indenture"),
the Partnership has established one or more series of Securities (herein called
"Securities of the Affected Series") to which the amendments of the Original
Indenture contained in Article II of the First Supplemental Indenture thereto
dated July 15, 2002 (the "First Supplemental Indenture") have been made
applicable, and Section 1011 of the Indenture provides that under certain
circumstances the Partnership is required to cause the Subsidiary Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the Subsidiary Guarantor shall guarantee the payment of the Securities of the
Affected Series pursuant to a guarantee on the terms and conditions set forth
herein.
Pursuant to Section 901 of the Indenture, the Trustee is authorized to
execute and deliver this Supplemental Indenture.
Now, Therefore, This Supplemental Indenture Witnesseth:
That in consideration of the premises and the issuance of the
Securities of the Affected Series, the Partnership, the Guarantor, the
Subsidiary Guarantor and the Trustee mutually covenant and agree, for the equal
and proportionate benefit of all Holders of the Securities of the Affected
Series, as follows:
ARTICLE I
AMENDMENTS TO THE INDENTURE
The amendments and supplements contained herein shall apply to the
Securities of the Affected Series only and not to any other series of Securities
issued under the Indenture, and any covenants provided herein are expressly
being included solely for the benefit of the Securities of the Affected Series
and the Holders thereof. These amendments and supplements shall be effective
only for so long as there remains any Securities of the Affected Series
Outstanding.
SECTION 1.01 Definitions. Section 101 of the Indenture is amended and
supplemented by inserting in the appropriate alphabetical position, the
following definition:
"Securities of the Affected Series" means the Notes due 2012 and
Securities of each other series to which the amendments of the Original
Indenture contained in Article II of the First Supplemental Indenture have been
made applicable.
SECTION 1.02 Unconditional Guarantee. Unless such amendment shall have
been effected by a previous supplemental indenture, the Indenture shall be
amended and supplemented by inserting the following new Article XV immediately
after Article XIV of the Indenture:
"ARTICLE XV
SECTION 1501. Unconditional Guarantee.
For value received, each Subsidiary Guarantor hereby fully,
irrevocably, unconditionally and absolutely guarantees to the Holders
and to the Trustee the due and punctual payment of the principal of,
and premium, if any, and interest on the Securities of the Affected
Series and all other amounts due and payable under this Indenture and
the Securities of the Affected Series by the Partnership (including,
without limitation, all costs and expenses (including reasonable legal
fees and disbursements) incurred by the Trustee or the Holders in
connection with the enforcement of this Indenture and the Subsidiary
Guarantees) (collectively, the "Indenture Obligations"), when and as
such principal, premium, if any, and interest and such other amounts
shall become due and payable, whether at the Stated Maturity, upon
redemption or by declaration of acceleration or otherwise, according to
the terms of the Securities of the Affected Series and this Indenture.
The guarantees by the Subsidiary Guarantors set forth in this Article
XV are referred to herein as the "Subsidiary Guarantees." Without
limiting the generality of the foregoing, the Subsidiary Guarantors'
liability shall extend to all amounts that constitute part of the
Indenture Obligations and would be owed by the Partnership under this
Indenture and the Securities of the Affected Series but for the fact
that they are unenforceable, reduced, limited, impaired, suspended or
not allowable due to the existence of a bankruptcy, reorganization or
similar proceeding involving the Partnership.
Failing payment when due of any amount guaranteed pursuant to the
Subsidiary Guarantees, for whatever reason, each Subsidiary Guarantor
will be obligated (to the fullest extent permitted by applicable law)
to pay the same immediately to the Trustee,
B-2
without set-off or counterclaim or other reduction whatsoever (whether
for taxes, withholding or otherwise). Each Subsidiary Guarantee
hereunder is intended to be a general, unsecured, senior obligation of
each Subsidiary Guarantor and will rank pari passu in right of payment
with all indebtedness of such Subsidiary Guarantor that is not, by its
terms, expressly subordinated in right of payment to the Subsidiary
Guarantee of such Subsidiary Guarantor. Each Subsidiary Guarantor
hereby agrees that to the fullest extent permitted by applicable law,
its obligations hereunder shall be full, irrevocable, unconditional and
absolute, irrespective of the validity, regularity or enforceability of
the Securities of the Affected Series, the Subsidiary Guarantees or
this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder with respect to any provisions hereof
or thereof, any release of any other Subsidiary Guarantor the recovery
of any judgment against the Partnership, any action to enforce the same
or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of such Subsidiary Guarantor. Each
Subsidiary Guarantor hereby agrees that in the event of a default in
payment of the principal of, or premium, if any, or interest on any
Securities of the Affected Series or any other amounts payable under
this Indenture and the Securities of the Affected Series by the
Partnership, whether at the Stated Maturity, upon redemption or by
declaration of acceleration or otherwise, legal proceedings may be
instituted by the Trustee on behalf of the Holders or, subject to
Section 507 hereof, by the Holders, on the terms and conditions set
forth in this Indenture, directly against each Subsidiary Guarantor to
enforce its Subsidiary Guarantees without first proceeding against the
Partnership.
To the fullest extent permitted by applicable law, the obligations of
each Subsidiary Guarantor under this Article XV shall be as aforesaid
full, irrevocable, unconditional and absolute and shall not be
impaired, modified, discharged, released or limited by any occurrence
or condition whatsoever, including, without limitation, (i) any
compromise, settlement, release, waiver, renewal, extension, indulgence
or modification of, or any change in, any of the obligations and
liabilities of the Partnership, the Guarantor or any Subsidiary
Guarantor contained in any of the Securities of the Affected Series or
this Indenture, (ii) any impairment, modification, release or
limitation of the liability of the Partnership, the Guarantor, any
Subsidiary Guarantor or any of their estates in bankruptcy, or any
remedy for the enforcement thereof, resulting from the operation of any
present or future provision of any applicable Bankruptcy Law, as
amended, or other statute or from the decision of any court, (iii) the
assertion or exercise by the Partnership, the Guarantor, any Subsidiary
Guarantor or the Trustee of any rights or remedies under any of the
Securities or this Indenture or their delay in or failure to assert or
exercise any such rights or remedies, (iv) the assignment or the
purported assignment of any property as security for any of the
Securities, including all or any part of the rights of the Partnership,
the Guarantor or any Subsidiary Guarantor under this Indenture, (v) the
extension of the time for payment by the Partnership, the Guarantor or
any Subsidiary Guarantor of any payments or other sums or any part
thereof owing or payable under any of the terms and provisions of any
of the Securities or this Indenture or of the time for performance by
the Partnership, the Guarantor or any Subsidiary Guarantor of any other
obligations under or arising out of any such terms and provisions or
the extension or the renewal of any thereof, (vi) the modification or
amendment (whether material or otherwise) of any duty, agreement or
obligation of the
B-3
Partnership, the Guarantor or any Subsidiary Guarantor set forth in
this Indenture, (vii) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all of
the assets, marshaling of assets and liabilities, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of, or other
similar proceeding affecting, the Partnership, the Guarantor or any
Subsidiary Guarantor or any of their respective assets, or the
disaffirmance of any of the Securities, any of the Subsidiary
Guarantees, the Guarantee or this Indenture in any such proceeding,
(viii) the release or discharge of the Partnership, the Guarantor or
any Subsidiary Guarantor from the performance or observance of any
agreement, covenant, term or condition contained in any of such
instruments by operation of law, (ix) the unenforceability of any of
the Securities, the Subsidiary Guarantees, the Guarantee or this
Indenture, (x) any change in the name, business, capital structure,
corporate existence, or ownership of the Partnership, the Guarantor or
any Subsidiary Guarantor, or (xi) any other circumstance which might
otherwise constitute a defense available to, or a legal or equitable
discharge of, a surety or any Subsidiary Guarantor.
To the fullest extent permitted by applicable law, each Subsidiary
Guarantor hereby (i) waives diligence, presentment, demand of payment,
notice of acceptance, filing of claims with a court in the event of the
merger, insolvency or bankruptcy of the Partnership, the Guarantor or
any Subsidiary Guarantor, and all demands and notices whatsoever, (ii)
acknowledges that any agreement, instrument or document evidencing its
Subsidiary Guarantee may be transferred and that the benefit of its
obligations hereunder shall extend to each Holder of the Securities of
the Affected Series without notice to them and (iii) covenants that its
Subsidiary Guarantee will not be discharged except by complete
performance of the Subsidiary Guarantees. Each Subsidiary Guarantor
further agrees that to the fullest extent permitted by applicable law,
if at any time all or any part of any payment theretofore applied by
any Person to each Subsidiary Guarantee is, or must be, rescinded or
returned for any reason whatsoever, including without limitation, the
insolvency, bankruptcy or reorganization of such Subsidiary Guarantor,
such Subsidiary Guarantee shall, to the extent that such payment is or
must be rescinded or returned, be deemed to have continued in existence
notwithstanding such application, and such Subsidiary Guarantee shall
continue to be effective or be reinstated, as the case may be, as
though such application had not been made.
Each Subsidiary Guarantor shall be subrogated to all rights of the
Holders and the Trustee against the Partnership in respect of any
amounts paid by the Subsidiary Guarantor pursuant to the provisions of
this Indenture; provided, however, that such Subsidiary Guarantor shall
not be entitled to enforce or to receive any payments arising out of,
or based upon, such right of subrogation with respect to any of the
Securities of the Affected Series until all of the Securities of the
Affected Series and the Subsidiary Guarantees thereof shall have been
indefeasibly paid in full or discharged.
A director, officer, employee or stockholder, as such, of a Subsidiary
Guarantor shall not have any liability for any obligations of such
Subsidiary Guarantor under this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation.
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No failure to exercise and no delay in exercising, on the part of the
Trustee or the Holders, any right, power, privilege or remedy under
this Article XV and the Subsidiary Guarantees shall operate as a waiver
thereof, nor shall any single or partial exercise of any rights, power,
privilege or remedy preclude any other or further exercise thereof, or
the exercise of any other rights, powers, privileges or remedies. The
rights and remedies herein provided for are cumulative and not
exclusive of any rights or remedies provided in law or equity. Nothing
contained in this Article XV shall limit the right of the Trustee or
the Holders to take any action to accelerate the maturity of the
Securities of the Affected Series pursuant to Article V or to pursue
any rights or remedies hereunder or under applicable law.
SECTION 1502. Limitation of Subsidiary Guarantor's Liability.
Each Subsidiary Guarantor and, by its acceptance of any Securities of
the Affected Series, each Holder, hereby confirms that it is their
intention that the Subsidiary Guarantee by such Subsidiary Guarantor
not constitute a fraudulent transfer or conveyance for purposes of the
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to the Subsidiary Guarantees. To effectuate the
foregoing intention, each such Person hereby irrevocably agrees that
the obligation of such Subsidiary Guarantor under its Subsidiary
Guarantee shall be limited to the maximum amount as shall, after giving
effect to such maximum amount and all other (contingent or otherwise)
liabilities of such Subsidiary Guarantor that are relevant under such
laws, and after giving effect to any rights to contribution of such
Subsidiary Guarantor pursuant to any agreement providing for an
equitable contribution among such Subsidiary Guarantor and other
Affiliates of the Partnership of payments made on account of guarantees
by such parties, result in the obligations of such Subsidiary Guarantor
in respect of such maximum amount not constituting a fraudulent
conveyance. Each Holder of Securities of the Affected Series, by
accepting the benefits hereof, confirms its intention that, in the
event of bankruptcy, reorganization or other similar proceeding of
either of the Partnership or any Subsidiary Guarantor in which
concurrent claims are made upon such Subsidiary Guarantor hereunder, to
the extent such claims shall not be fully satisfied, each such claimant
with a valid claim against the Partnership shall be entitled to a
ratable share of all payments by such Subsidiary Guarantor in respect
of such concurrent claims.
SECTION 1503. Execution and Delivery of Notation of Subsidiary
Guarantees.
To further evidence the Subsidiary Guarantees, the Subsidiary Guarantor
hereby agrees that a notation of such Subsidiary Guarantees in
substantially the form set forth below in Section 1505 shall be
endorsed on each of the Securities of the Affected Series authenticated
and delivered by the Trustee and executed by either manual or facsimile
signature of an officer of the Subsidiary Guarantor; provided that
failure to include such notation on the any of the Securities of the
Affected Series shall not affect the validity of the Subsidiary
Guarantees.
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Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantees
shall remain in full force and effect notwithstanding any failure to
endorse on each of the Securities of the Affected Series a notation
relating to the Subsidiary Guarantee thereof.
If an officer of a Subsidiary Guarantor whose signature is on this
Indenture or any of the Securities of the Affected Series no longer
holds that office at the time the Trustee authenticates such Security
or at any time thereafter, the Subsidiary Guarantor's Subsidiary
Guarantee of such Security shall be valid nevertheless.
SECTION 1504. Form Of Notation On Security Relating To Subsidiary
Guarantee.
FORM OF NOTATION ON SECURITY RELATING TO SUBSIDIARY GUARANTEE
The undersigned Subsidiary Guarantor (which term includes any
successor Person in such capacity under the Indenture), has fully,
unconditionally and absolutely guaranteed, to the extent set forth in
the Indenture and subject to the provisions in the Indenture, the due
and punctual payment of the principal of, and premium, if any, and
interest on the Securities of this series and all other amounts due and
payable under the Indenture and the Securities of this series by the
Partnership.
The obligations of the Subsidiary Guarantor to the Holders of
Securities of this series and to the Trustee pursuant to the Subsidiary
Guarantees and the Indenture are expressly set forth in Article XV of
the Indenture and reference is hereby made to the Indenture for the
precise terms of the Subsidiary Guarantee.
Subsidiary Guarantor:
[NAME OF SUBSIDIARY GUARANTOR]
By:
-------------------------------------
Name:
-----------------------------------
Title: "
----------------------------------
ARTICLE II
MISCELLANEOUS
SECTION 2.01 Execution as Supplemental Indenture. By its execution and
delivery of this Supplemental Indenture, the undersigned Subsidiary Guarantor
agrees to be bound by the provisions of the Indenture, including those of
Article XV thereof, as the same relate to the Notes due 2012 and all other
Securities of the Affected Series. This Supplemental Indenture is executed and
shall be construed as an indenture supplemental to the Indenture and, as
provided in the Indenture, this Supplemental Indenture forms a part thereof.
Except as herein expressly otherwise defined, the use of the terms and
expressions herein is in accordance with the definitions, uses and constructions
contained in the Indenture.
SECTION 2.02 Responsibility for Recitals, Etc. The recitals herein and
in the Securities of the Affected Series (except in the Trustee's certificate of
authentication) shall be
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taken as the statements of the Partnership, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no representations
as to the validity or sufficiency of this Supplemental Indenture or of the
Securities of the Affected Series. The Trustee shall not be accountable for the
use or application by the Partnership of the Securities of the Affected Series
or of the proceeds thereof.
SECTION 2.03 Provisions Binding on Partnership's Guarantor's and
Subsidiary Guarantor's Successors. All the covenants, stipulations, promises and
agreements in this Supplemental Indenture contained by the Partnership with the
Guarantor or the undersigned Subsidiary Guarantor shall bind its successors and
assigns whether so expressed or not.
SECTION 2.04 Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 2.05 Execution and Counterparts. This Supplemental Indenture
may be executed with counterpart signature pages or 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 2.06 Capitalized Terms. Capitalized terms not otherwise defined
in this Supplemental Indenture shall have the respective meanings assigned to
them in the Indenture.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Partnership:
VALERO LOGISTICS OPERATIONS, L.P.
By: ▇▇▇▇▇▇ ▇▇, Inc.,
Its General Partner
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Guarantor:
▇▇▇▇▇▇ ▇.▇.
By: Riverwalk Logistics, L.P.
Its General Partner
By: ▇▇▇▇▇▇ ▇▇, LLC,
Its General Partner
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Subsidiary Guarantor:
[NAME OF SUBSIDIARY GUARANTOR]
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
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Trustee:
[NAME OF TRUSTEE], AS TRUSTEE
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
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