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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
-------------------------------
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): SEPTEMBER 28, 1998
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 333-59597 39-1715851
(STATE OR OTHER JURISDICTION) (COMMISSION FILE NO.) (I.R.S. EMPLOYER
IDENTIFICATION NO.)
LAKE SUPERIOR PLACE, 21 WEST SUPERIOR STREET, DULUTH, MN 55802-2067
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (218) 725-0100
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ITEM 5. OTHER EVENTS
Lakehead Pipe Line Company, Limited Partnership, a Delaware limited
partnership (the "Registrant"), entered into an Underwriting Agreement, dated
September 28, 1998 (the "Underwriting Agreement"), among the Registrant,
Lakehead Pipeline Partners, L.P., a Delaware limited partnership, Lakehead Pipe
Line Company, Inc., a Delaware corporation and the general partner of the
Registrant, and the underwriters named therein in connection with the
Registrant's public offering of $100,000,000 aggregate principal amount of 7%
Senior Notes due 2018 (the "2018 Notes") and $100,000,000 aggregate principal
amount of 7 1/8% Senior Notes due 2028 (the "2028 Notes" and together with the
2018 Notes, the "Securities"). The Underwriting Agreement is included as Exhibit
1.1 to this Form 8-K.
The Securities were issued pursuant to an indenture, dated September
15, 1998, relating to senior debt securities (the "Senior Indenture"), between
the Registrant and The Chase Manhattan Bank as trustee (the "Trustee"), as
supplemented by a First Supplemental Indenture, dated as of September 15, 1998,
relating to the 2018 Notes (the "First Supplemental Indenture") and a Second
Supplemental Indenture, dated as of September 15, 1998, relating to the 2028
Notes (the "Second Supplemental Indenture"). The Senior Indenture, the First
Supplemental Indenture, and the Second Supplemental Indenture are included
hereto as Exhibits 4.1, 4.2, and 4.3 respectively.
In addition, the Registrant and the Trustee entered into an indenture,
dated as of September 15, 1998, relating to subordinated debt securities (the
"Subordinated Indenture"). As of the date hereof, no securities have been issued
pursuant to the Subordinated Indenture, which is included as Exhibit 4.4 to this
Form 8-K.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) EXHIBITS
Exhibit No. Description
1.1 Underwriting Agreement, dated September 28, 1998, among the
Registrant, Lakehead Pipe Line Partners, L.P., Lakehead
Pipe Line Company, Inc. and the underwriters named therein.
4.1 Indenture, dated as of September 15, 1998, between the
Registrant and The Chase Manhattan Bank, as trustee,
relating to senior debt securities.
4.2 First Supplemental Indenture, dated as of September 15,
1998, between the Registrant and The Chase Manhattan Bank,
as trustee, relating to the Registrant's 7% Senior Notes
due 2018.
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4.3 Second Supplemental Indenture, dated as of September 15,
1998, between the Registrant and The Chase Manhattan Bank,
as trustee, relating to the Registrant's 7 1/8% Senior
Notes due 2028.
4.4 Indenture, dated as of September 15, 1998, between the
Registrant and The Chase Manhattan Bank, as trustee,
relating to subordinated debt securities.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP
(Registrant)
By: Lakehead Pipe Line Company, Inc.
as General Partner
/s/ M. A. MAKI
--------------------------------------------
M. A. Maki
Chief Accountant
(Principal Financial and Accounting Officer)
Date: October 20, 1998
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
1.1 Underwriting Agreement, dated September 28, 1998, among the
Registrant, Lakehead Pipe Line Partners, L.P., Lakehead
Pipe Line Company, Inc. and the underwriters named therein.
4.1 Indenture, dated as of September 15, 1998, between the
Registrant and The Chase Manhattan Bank, as trustee,
relating to senior debt securities.
4.2 First Supplemental Indenture, dated as of September 15,
1998, between the Registrant and The Chase Manhattan Bank,
as trustee, relating to the Registrant's 7% Senior Notes
due 2018.
4.3 Second Supplemental Indenture, dated as of September 15,
1998, between the Registrant and The Chase Manhattan Bank,
as trustee, relating to the Registrant's 7 1/8% Senior
Notes due 2028.
4.4 Indenture, dated as of September 15, 1998, between the
Registrant and The Chase Manhattan Bank, as trustee,
relating to subordinated debt securities.
</TABLE>
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EXHIBIT 1.1
[Conformed Copy]
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP
(a Delaware limited partnership)
$100,000,000 7% Senior Notes due 2018
$100,000,000 7 1/8% Senior Notes due 2028
UNDERWRITING AGREEMENT
September 28, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Chase Securities Inc.
ABN AMRO Incorporated
CIBC Oppenheimer Corp.
Citicorp Securities, Inc.
Credit Suisse First Boston Corporation
Nesbitt Burns Securities, Inc.
c/o MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Lakehead Pipe Line Company, Limited Partnership, a Delaware limited
partnership (the "Operating Partnership"), confirms its agreement with Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill
Lynch") and each of the other Underwriters named in Schedule A hereto
(collectively, the "Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), with respect to the
issue and sale by the Operating Partnership and the purchase by the
Underwriters, acting severally and not jointly, of the respective principal
amounts set forth in said Schedule A of $100,000,000 aggregate principal amount
of the Operating Partnership's 7% Senior Notes due 2018 (the "2018 Notes") and
$100,000,000 aggregate principal amount of the Operating Partnership's 7 1/8%
Senior Notes due 2028 (the "2028 Notes" and together with the 2018 Notes, the
"Securities"). The Securities are to be issued pursuant to an indenture dated as
of September 15, 1998, between the Operating Partnership and The Chase Manhattan
Bank, as trustee (the "Trustee"), as supplemented by the First Supplemental
Indenture dated as of September 15, 1998 and by the Second Supplemental
Indenture dated as of September 15, 1998 (as so supplemented, the "Indenture").
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Each of the Operating Partnership, Lakehead Pipe Line Partners, L.P., a
Delaware limited partnership (the "Partnership"), and Lakehead Pipe Line
Company, Inc., a Delaware corporation (both in its capacity as general partner
of the Operating Partnership and in its individual capacity, the "General
Partner"), wishes to confirm as follows its agreement with the Underwriters in
connection with the several purchases of the Securities by the Underwriters. The
Partnership, the Operating Partnership and the General Partner are sometimes
collectively referred to herein as the "Companies."
The Companies understand that the Underwriters propose to make a public
offering of the Securities as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
1. Registration Statement and Prospectus. The Operating Partnership
has prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 (Registration
No. 333-59597) under the Act, including a prospectus subject to completion
relating to certain debt securities of the Operating Partnership, including the
Securities. Such registration statement (including all financial schedules and
exhibits), as amended at the time it becomes effective, or, if such registration
statement became effective prior to the execution of this Agreement, as
supplemented or amended prior to the execution of this Agreement is herein
called the "Registration Statement." If it is contemplated, at the time this
Agreement is executed, that a post-effective amendment to such registration
statement will be filed and must be declared effective before the offering of
the Securities may commence, the term "Registration Statement" as used in this
Agreement means such registration statement as amended by said post-effective
amendment. If it is contemplated, at the time this Agreement is executed, that a
registration statement will be filed pursuant to Rule 462(b) under the Act
before the offering of the Securities may commence, the term "Registration
Statement" as used in this Agreement includes such registration statement. The
term "Basic Prospectus" as used in this Agreement means the prospectus contained
in the Registration Statement at the time that the Registration Statement was
declared effective or in the form in which it has been most recently filed with
the Commission on or prior to the date of this Agreement. "Preliminary
Prospectus" shall mean any preliminary prospectus supplement to the Basic
Prospectus, together with the Basic Prospectus, which describes the Securities
and the offering thereof, is filed pursuant to Rule 424(b) under the Act ("Rule
424(b)") and is used prior to the filing of the Final Prospectus. "Final
Prospectus" shall mean the prospectus supplement relating to the Securities and
the offering thereof that is first filed pursuant to Rule 424(b) after the date
and time this Agreement is executed and delivered by the parties hereto,
together with the Basic Prospectus.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, the Basic Prospectus, the Preliminary Prospectus or the
Final Prospectus (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other
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information which is incorporated by reference in the Registration Statement,
the Basic Prospectus, the Preliminary Prospectus or the Final Prospectus, as the
case may be; any reference in this Agreement to the Registration Statement, the
Basic Prospectus, the Preliminary Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of the
Registration Statement, the Basic Prospectus, the Preliminary Prospectus or the
Final Prospectus, as the case may be; and any reference to any amendment or
supplement to the Registration Statement, the Basic Prospectus, the Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder (the
"Exchange Act") which, upon filing, are incorporated by reference therein, as
required by paragraph (b) of Item 12 of Form S-3. As used herein, the term
"Incorporated Documents" means the documents which at the time are incorporated
by reference in the Registration Statement, the Basic Prospectus, the
Preliminary Prospectus or the Final Prospectus or any amendment or supplement
thereto.
2. Agreements to Sell and Purchase. The Operating Partnership hereby
agrees, upon the terms and subject to all the conditions set forth herein, to
issue and sell to each Underwriter and, upon the basis of the representations,
warranties and agreements of the Companies herein contained and upon the terms
and subject to all the conditions set forth herein, each Underwriter agrees,
severally and not jointly, to purchase from the Operating Partnership, at the
price set forth in Schedule B hereto, the aggregate amount of Securities set
forth opposite the name of such Underwriter in Schedule A hereto, plus any
additional principal amount of Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
3. Terms of Public Offering. The Operating Partnership has been
advised by the Underwriters that the Underwriters propose to make a public
offering of their respective portions of the Securities as soon after the
Registration Statement and this Agreement have become effective as in the
judgment of the Underwriters is advisable and initially to offer the Securities
upon the terms set forth in the Final Prospectus.
4. Delivery of the Securities and Payment Therefor. The Securities
to be purchased hereunder will be represented by one or more definitive global
certificates in book-entry form which will be deposited by or on behalf of the
Operating Partnership with The Depository Trust Company ("DTC") or its
designated custodian.
Delivery to the Underwriters of the Securities, against payment of the
purchase price therefor in immediately available funds, shall be made by causing
DTC to credit the Securities to the account or accounts designated by Merrill
Lynch on behalf of the Underwriters at DTC. The time and date of such delivery
shall be 10:00 A.M., New York City time, on October 1, 1998 (such time and date
of payment and delivery being herein called (the "Closing Time"). The other
documents to be delivered at the Closing Time by or on behalf of the parties
hereto shall be delivered at such time and date at the offices of Baker & Botts,
L.L.P., 910 Louisiana, Houston, Texas 77002. The place of closing for the
Securities and the Closing Time may be varied by
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agreement between the Underwriters and the Operating Partnership. Merrill Lynch
may (but shall not be obligated to) make payment of the purchase price for the
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time, but such payment shall not relieve such Underwriter from
its obligations hereunder.
The global certificates representing the Securities to be delivered to
the Underwriters shall be made available to the Underwriters at the office of
DTC or its custodian for inspection not later than 9:30 A.M., New York City
time, on the business day next preceding the Closing Time.
5. Agreements of the Companies. Each of the Companies agrees with
the several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Securities may
commence, the Operating Partnership and the General Partner will endeavor to
cause the Registration Statement or such post-effective amendment to become
effective as soon as possible and will advise the Underwriters and counsel for
the Underwriters promptly and, if requested by the Underwriters, will confirm
such advice in writing, when the Registration Statement or such post-effective
amendment has become effective.
(b) The Operating Partnership and the General Partner will advise
the Underwriters and counsel for the Underwriters promptly and, if requested by
the Underwriters, will confirm such advice in writing: (i) of any request by the
Commission for amendment of or a supplement to the Registration Statement, the
Basic Prospectus, the Preliminary Prospectus or the Final Prospectus or for
additional information; (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Securities for offering or sale in any jurisdiction or
the initiation of any proceeding for such purpose; and (iii) within the period
of time referred to in paragraph (f) below, of any change in the financial
position, business, prospects, or results of operations of any of the Companies,
or of the happening of any event, which makes any statement of a material fact
made in the Registration Statement, the Preliminary Prospectus or the Final
Prospectus (as then amended or supplemented) untrue or which requires the making
of any additions to or changes in the Registration Statement, the Preliminary
Prospectus or the Final Prospectus (as then amended or supplemented) in order to
state a material fact required by the Act to be stated therein or necessary in
order to make the statements therein not misleading, or of the necessity to
amend or supplement the Preliminary Prospectus or the Final Prospectus (as then
amended or supplemented) to comply with the Act or any other law. If at any time
the Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Operating Partnership and the General Partner will
make every reasonable effort to obtain the withdrawal of such order at the
earliest possible time.
(c) The Operating Partnership and the General Partner will
furnish to the Underwriters, at the Underwriters' request and without charge,
(i) three signed copies and five
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conformed copies of the Registration Statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits to the Registration Statement, (ii) such number of conformed copies of
the Registration Statement as originally filed and of each amendment thereto,
but without exhibits, as the Underwriters may request, (iii) such number of
copies of the Incorporated Documents, without exhibits, as the Underwriters may
request, and (iv) such number of copies of the exhibits to the Incorporated
Documents as the Underwriters may request.
(d) Neither the Operating Partnership nor the General Partner
will file any amendment to the Registration Statement or make any amendment or
supplement to the Preliminary Prospectus or the Final Prospectus or, prior to
the end of the period of time referred to in the second sentence in paragraph
(f) below, file any document which, upon filing becomes an Incorporated
Document, of which the Underwriters and counsel for the Underwriters shall not
previously have been advised or to which, after the Underwriters and counsel for
the Underwriters shall have received a copy of the document proposed to be
filed, the Underwriters shall reasonably object; provided that the Underwriters'
consent shall not be unreasonably withheld or delayed.
(e) Prior to the execution and delivery of this Agreement, the
Operating Partnership and the General Partner have delivered to the
Underwriters, without charge, in such quantities as the Underwriters have
requested, copies of the Preliminary Prospectus. The Operating Partnership and
the General Partner consent to the use, in accordance with the provisions of the
Act and with the securities or Blue Sky laws of the jurisdictions in which the
Securities are offered by the several Underwriters and by dealers, prior to the
date of the Final Prospectus, of the Preliminary Prospectus so furnished by the
Operating Partnership and the General Partner.
(f) The Operating Partnership will cause the Final Prospectus to
be filed pursuant to, and in compliance with, Rule 424(b). As soon after the
execution and delivery of this Agreement as possible and thereafter from time to
time for such period as in the opinion of counsel for the Underwriters a
prospectus is required by the Act to be delivered in connection with sales by
any Underwriter or dealer, the Operating Partnership and the General Partner
will expeditiously deliver to each Underwriter and each dealer, without charge,
as many copies of the Final Prospectus (and of any amendment or supplement
thereto) as the Underwriters may reasonably request. The Operating Partnership
and the General Partner consent to the use of the Preliminary Prospectus or the
Final Prospectus (and of any amendment or supplement thereto) in accordance with
the provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Securities are offered by the several Underwriters
and by all dealers to whom Securities may be sold, both in connection with the
offering and sale of the Securities and for such period of time thereafter as
the Preliminary Prospectus or the Final Prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer. If during such
period of time any event shall occur that in the judgment of the Operating
Partnership or the General Partner or in the opinion of counsel for the
Underwriters is required to be set forth in the Preliminary Prospectus or the
Final Prospectus (as then amended or supplemented) or should be
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set forth therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Preliminary Prospectus or the Final Prospectus (or to
file under the Exchange Act any document which, upon filing, becomes an
Incorporated Document) in order to comply with the Act or any other law, the
Operating Partnership and the General Partner will forthwith prepare and,
subject to the provisions of paragraph (d) above, file with the Commission an
appropriate supplement or amendment thereto (or to such document), and will
expeditiously furnish to the Underwriters and dealers a reasonable number of
copies thereof. In the event that the Operating Partnership or the General
Partner and the several Underwriters agree that the Preliminary Prospectus or
the Final Prospectus should be amended or supplemented, the Operating
Partnership and the General Partner, if requested by the Underwriters, will
promptly issue a press release announcing or disclosing the matters to be
covered by the proposed amendment or supplement.
(g) The Operating Partnership and the General Partner will
cooperate with the Underwriters and with counsel for the Underwriters in
connection with the registration or qualification of the Securities for offering
and sale by the several Underwriters and by dealers under the securities or Blue
Sky laws of such jurisdictions as the Underwriters may designate and will file
such consents to service of process or other documents necessary or appropriate
in order to effect such registration or qualification; provided that in no event
shall the Operating Partnership be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so
subject.
(h) The Operating Partnership and the General Partner will make
generally available to security holders of the Operating Partnership a
consolidated earnings statement, which need not be audited, covering a 12-month
period commencing after the effective date of the Registration Statement and
ending not later than 15 months thereafter, as soon as practicable after the end
of such period, which consolidated earnings statement shall satisfy the
provisions of Section 11(a) of the Act.
(i) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than pursuant to
Section 10 hereof or pursuant to clause (ii), (iii), (iv) or (v) of Section 11
hereof) or if this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of any of the Companies to comply with the
terms or fulfill any of the conditions of this Agreement, the Operating
Partnership and the General Partner, jointly and severally, agree to reimburse
the Underwriters for all out-of-pocket expenses (including reasonable fees and
expenses of counsel for the Underwriters) incurred by the Underwriters in
connection herewith.
(j) The Operating Partnership will apply the net proceeds from
the sale of the Securities substantially in accordance with the description set
forth in the Final Prospectus.
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(k) During a period of 30 days from the date of the Final
Prospectus, the Companies will not, without the prior written consent of Merrill
Lynch, directly or indirectly, issue, sell, offer or contract to sell, grant any
option for the sale of, or otherwise transfer or dispose of, any debt securities
of the Operating Partnership or of the Partnership; provided, however, that this
limitation shall not apply to (i) bank borrowings or (ii) borrowings from the
General Partner or any of its affiliates.
(l) The Partnership, during the period when the Final Prospectus
is required to be delivered under the Act, will file all documents required to
be filed with the Commission pursuant to the Exchange Act within the time
periods required by the Exchange Act.
6. Representations and Warranties of the Companies. Each of the
Companies represents and warrants to each Underwriter that:
(a) The Basic Prospectus included as part of the Registration
Statement as originally filed or as part of any amendment or supplement thereto,
and the Preliminary Prospectus filed pursuant to Rule 424(b), complied when so
filed in all material respects with the provisions of the Act and did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that this representation and warranty does not apply to statements in or
omissions from the Basic Prospectus or the Preliminary Prospectus made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Operating Partnership in writing by or on behalf of any
Underwriter expressly for use therein. To the best of each of the Companies'
knowledge, information and belief, having made reasonable inquiries, the
Commission has not issued any order preventing or suspending the use of the
Basic Prospectus or the Preliminary Prospectus.
(b) The Operating Partnership and the offering of the Securities
contemplated by this Agreement meet the requirements for using Form S-3 under
the Act. The Registration Statement in the form in which it became or becomes
effective and also in such form as it may be when any post-effective amendment
thereto shall become effective and the Final Prospectus and any supplement or
amendment thereto when filed with the Commission under Rule 424(b) and at the
Closing Time, complied or will comply in all material respects with the
provisions of the Act and, with respect to the Registration Statement, the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (the "1939 Act"), and will not at any such times contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and the statements made or to be made in such documents that are covered by Rule
175(b) under the Act were made or will be made with a reasonable basis and in
good faith, except that this representation and warranty does not apply to
statements in or omissions from the Registration Statement or the Final
Prospectus made in reliance upon and in conformity with information relating to
any Underwriter
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furnished to the Operating Partnership in writing by or on behalf of any
Underwriter expressly for use therein.
(c) The Incorporated Documents heretofore filed, when they were
filed (or, if any amendment with respect to any such document was filed, when
such amendment was filed), conformed in all material respects with the
requirements of the Exchange Act; any further Incorporated Documents so filed
will, when they are filed, conform in all material respects with the
requirements of the Exchange Act; no such document when it was filed (or, if an
amendment with respect to any such document was filed, when such amendment was
filed), contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and no such further document, when it is
filed, will contain an untrue statement of a material fact or will omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading.
(d) The capitalization of the Partnership as of June 30, 1998 was
as set forth in the Final Prospectus under "Capitalization." The capitalization
of the Operating Partnership as of such date was substantially the same as the
capitalization of the Partnership as of such date.
(e) Each of the Partnership, the Operating Partnership and
Lakehead Services, Limited Partnership, a Delaware limited partnership (the "LPL
Partnership"), has been duly formed and is validly existing as a limited
partnership in good standing under the Delaware Revised Uniform Limited
Partnership Act (the "Delaware Act"), with partnership power and authority to
own or lease its properties and to conduct its business as described in the
Final Prospectus and, with respect to the Partnership, also to act as general
partner of the LPL Partnership.
(f) The General Partner has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with the corporate power and authority to own or lease its properties,
to conduct its businesses, to act as a general partner of the Partnership and
the Operating Partnership and to act as limited partner of the LPL Partnership,
in each case as described in the Final Prospectus.
(g) The accountants, PricewaterhouseCoopers LLP (formerly Price
Waterhouse LLP), who have certified or shall certify the financial statements
included or incorporated by reference in the Registration Statement and the
Final Prospectus (or any amendment or supplement thereto), are independent
public accountants as required by the Act.
(h) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Registration Statement and
the Final Prospectus (and any amendment or supplement thereto), present fairly
the consolidated financial position, results of operations and changes in
financial position of the Partnership and the Operating Partnership on the basis
stated in the Registration Statement at the respective dates or for the
respective
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periods to which they apply; such statements and related schedules and notes
have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data included
or incorporated by reference in the Registration Statement and the Final
Prospectus (and any amendment or supplement thereto) are accurately presented
and prepared on a basis consistent with such financial statements and the books
and records of the Companies.
(i) The execution and delivery of, and the performance by each of
the Companies of its obligations under this Agreement have been duly and validly
authorized by each of such Companies, as the case may be, and this Agreement has
been duly executed and delivered by each of the Companies.
(j) The Indenture has been duly authorized by the Operating
Partnership and duly qualified under the 1939 Act and, when duly executed and
delivered by the Operating Partnership and the Trustee, will, based upon the
advice of counsel, constitute a valid and legally binding agreement of the
Operating Partnership, enforceable against the Operating Partnership in
accordance with its terms, except as enforcement generally may be subject to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors rights and to general equitable principles.
(k) The Securities have been duly authorized and, at the Closing
Time, will have been duly executed by the Operating Partnership and, when
authenticated, issued and delivered in the manner provided for in the Indenture
and delivered against payment of the purchase price therefor as provided in this
Agreement, will, based upon the advice of counsel, constitute valid and binding
obligations of the Operating Partnership, enforceable against the Operating
Partnership in accordance with their terms, except as enforcement generally may
be subject to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors rights and to general equitable
principles, and will be in the form contemplated by, and entitled to the
benefits of, the Indenture.
(l) The Securities and the Indenture will conform in all material
respects to the respective statements relating thereto contained in the
Preliminary Prospectus and the Final Prospectus and will be in substantially the
respective forms filed or incorporated by reference, as the case may be, as
exhibits to the Registration Statement.
(m) Neither the offer, sale or delivery of the Securities, the
execution, delivery or performance of this Agreement, the Indenture and the
Securities, compliance by any of the Companies with the provisions hereof or
thereof nor consummation by any of the Companies of the transactions
contemplated hereby constitutes a breach of, or a default under, the partnership
agreement, certificate or articles of incorporation or bylaws, or other
organizational documents, of any of the Companies or the LPL Partnership, or any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which any of the Companies or the LPL
Partnership is a party or by which any of them may be bound or to which
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any of their respective properties is subject, nor will any such action result
in any violation of any existing law, regulation, ruling (assuming compliance
with all applicable federal and state securities and Blue Sky laws), judgment,
injunction, order or decree to which any of the Companies or the LPL Partnership
is a named party, excluding in each case any breaches, defaults or violations
which, individually or in the aggregate, would not have a material adverse
effect on the financial position, results of operations, business or prospects
of the General Partner or the Partnership and the Operating Partnership (taken
as a whole) (a "Material Adverse Effect").
(n) Except as disclosed in the Registration Statement and the
Final Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Final Prospectus (or any amendment or supplement thereto),
none of the Companies nor the LPL Partnership has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the General Partner or the
Partnership and the Operating Partnership (taken as a whole), and there has not
been any change in the capital stock or partner's capital, or material increase
in the short-term debt or long-term debt of, any of the Companies, or any
material adverse change, or any development that the Operating Partnership and
the General Partner have reasonable cause to believe will involve a prospective
material adverse change, in the financial position, business, prospects or
results of operations of any of the Companies.
(o) Except as disclosed in the Registration Statement and the
Final Prospectus (or any amendment of supplement thereto), no more than ten
percent of the net proceeds from the sale of the Securities are intended to be
or will be paid to members of the National Association of Securities Dealers or
associated or affiliated persons of such members, or members of the immediate
family of such members.
(p) The Commission has issued an order under the Act declaring
the Registration Statement effective and qualifying the Indenture under the 1939
Act and no other consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the issuance of the Securities or the consummation by the Operating
Partnership of the other transactions contemplated by this Agreement and the
Indenture, except such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or blue sky laws in
connection with the issuance by the Operating Partnership of the Securities and
the purchase and distribution of the Securities by the Underwriters.
(q) The General Partner has (excluding its interests in the
Partnership and the Operating Partnership) a net worth of at least $35 million.
(r) Based upon the advice of counsel, none of the Companies is,
or as of the Closing Time will be, an "Investment Company" as that term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act"), or required to register as an "Investment Company" under the
Investment Company Act.
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(s) Based upon the advice of counsel, none of the Companies or
the LPL Partnership is (i) a "public utility company," (ii) a "holding company,"
(iii) a "subsidiary company" of a "registered holding company" or of a "holding
company" required to be registered under the Public Utility Holding Company Act
of 1935, as amended (the "1935 Act"), or (iv) an "affiliate" of (A) a
"registered holding company," (B) a "holding company" required to be registered
under the 1935 Act, (C) a "subsidiary company" of a "registered holding company"
or (D) a "subsidiary company" of a "holding company" required to be registered
under the 1935 Act, as such terms are defined in the 1935 Act. Based upon the
advice of counsel, the issuance and sale of the Securities as contemplated by
the Final Prospectus is not subject to regulation under the 1935 Act.
(t) There are no legal or governmental proceedings pending or, to
the knowledge of any of the Companies, threatened, against any of the Companies
or the LPL Partnership, or to which any of the Companies or the LPL Partnership,
or to which any of their respective properties, is subject, that are required to
be described in the Registration Statement or the Final Prospectus and are not
described as required.
7. Indemnification and Contribution. (a) Each of the Companies,
jointly and severally, agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Preliminary
Prospectus, or the Final Prospectus or in the Registration Statement or in any
amendment or supplement thereto, or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or expenses arise out of or are based
upon any untrue statement or omission or alleged untrue statement or omission
which has been made therein or omitted therefrom in reliance upon and in
conformity with the information relating to such Underwriter furnished in
writing to the Operating Partnership by or on behalf of the Underwriters
expressly for use in connection therewith; provided, however, that the only
information furnished in writing to the Operating Partnership by or on behalf of
the Underwriters are the statements noted in Section 12 hereof; and provided,
further, that the indemnification contained in this paragraph (a) with respect
to the Preliminary Prospectus shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act) on account of any
such loss, claim, damage, liability or expense arising from the sale of the
Securities by such Underwriter to any person if a copy of the Final Prospectus
shall not have been delivered or sent to such person within the time required by
the Act, and the untrue statement or alleged untrue statement or omission or
alleged omission of a material fact contained in the Preliminary Prospectus was
corrected in the Final Prospectus, provided that the Operating Partnership has
delivered the Final Prospectus to the several Underwriters in requisite
quantities on a timely basis to permit such
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delivery or sending. The foregoing indemnity agreement shall be in addition to
any liability which any of the Companies may otherwise have.
(b) If any action, suit or proceeding shall be brought against
any Underwriter or any person controlling any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act in respect of which
indemnity may be sought against any of the Companies, such Underwriter or such
controlling person shall promptly notify the General Partner on behalf of the
Companies, and the Companies shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Underwriters and payment of
all fees and expenses. Such Underwriter or any such controlling person shall
have the right to employ separate counsel in any such action, suit or proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling person
unless (i) the Companies have agreed in writing to pay such fees and expenses,
(ii) the Companies have failed to assume the defense and employ counsel
reasonably satisfactory to the Underwriters or (iii) the named parties to any
such action, suit or proceeding (including any impleaded parties) include both
such Underwriter or such controlling person and any of the Companies and such
Underwriter or such controlling person shall have been advised by its counsel
that representation of such indemnified party and one or more of the Companies
by the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same counsel has
been proposed) due to actual or potential differing interests between them (in
which case the Companies shall not have the right to assume the defense of such
action, suit or proceeding on behalf of such Underwriter or such controlling
person). It is understood, however, that the Companies shall, in connection with
any one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons not
having actual or potential differing interests with the Underwriters, which firm
shall be designated in writing by Merrill Lynch, and that all such fees and
expenses shall be reimbursed as they are incurred. None of the Companies shall
be liable for any settlement of any such action, suit or proceeding effected
without its written consent, but if settled with such written consent, or if
there be a final judgment for the plaintiff in any such action, suit or
proceeding, each of the Companies, jointly and severally, agrees to indemnify
and hold harmless any Underwriter, to the extent provided in the preceding
paragraph, and any such controlling person from and against any loss, claim,
damage, liability or expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless each of the Companies, the directors of the General
Partner, the officers of the General Partner who sign the Registration
Statement, and any person who controls any of the Companies within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Companies to each Underwriter, but only with
respect to information relating to such Underwriter furnished in writing by or
on behalf of such Underwriter expressly for use in the Registration Statement,
the Preliminary Prospectus, the Final Prospectus,
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<PAGE> 13
or any amendment or supplement thereto; provided, however, that the only
information furnished in writing to the Operating Partnership by or on behalf of
the Underwriters are the statements noted in Section 12 hereof. If any action,
suit or proceeding shall be brought against any of the Companies, any of the
directors of the General Partner, any such officer of the General Partner, or
any such controlling person based on the Registration Statement, the Preliminary
Prospectus or the Final Prospectus, or any amendment or supplement thereto, and
in respect of which indemnity may be sought against any Underwriter pursuant to
this paragraph (c), such Underwriter shall have the rights and duties given to
the Companies by paragraph (b) above, and the Companies, the directors of the
General Partner, any such officer of the General Partner, and any such
controlling person, shall have the rights and duties given to the Underwriters
by paragraph (b) above. The foregoing indemnity agreement shall be in addition
to any liability which the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Companies on the one hand and the Underwriters on the other hand from the
offering of the Securities, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Companies on the one hand and the Underwriters on
the other hand in connection with the statements or omissions that resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Companies on the one hand and the Underwriters on the other hand shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Operating Partnership bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Final Prospectus. The
relative fault of the Companies on the one hand and the Underwriters on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Companies on the one hand or by the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission, including, with respect to any
Underwriter, the extent to which any such loss, claim, damage or liability
arises from the sale of Securities by such Underwriter to any person if a copy
of the Final Prospectus shall not have been delivered or sent to such person
within the time required by the Act, and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in the
Preliminary Prospectus was corrected in the Final Prospectus, provided that the
Operating Partnership has delivered the Final Prospectus to the several
Underwriters in requisite quantity on a timely basis to permit such delivery or
sending.
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(e) The Companies and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
a pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
any claim or defending any such action, suit or proceeding. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price of the Securities
underwritten by it and distributed to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective numbers of Securities set forth opposite their names in Schedule I
hereto (or such numbers of Securities increased as set forth in Section 10
hereof) and not joint.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 7 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Companies set forth in this Agreement
shall remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, any of the Companies, the directors of the General Partner or
officers of the General Partner, or any person controlling any of the Companies,
(ii) acceptance of any Securities and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to any Underwriter or any person
controlling any Underwriter, or to any of the Companies or the directors or
officers of the General Partner, or any person controlling any of the Companies,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 7. The term "successor," as
used in this Agreement, shall not include a purchaser from any Underwriter of
any Securities in his status as a purchaser.
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<PAGE> 15
8. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters to purchase the Securities hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Securities may
commence, the Registration Statement or such post-effective amendment shall have
become effective not later than 5:30 P.M., New York City time, on the date
hereof, or at such later date and time as shall be consented to in writing by
the Underwriters and all filings, if any, required by Rules 424 and 430A under
the Act shall have been timely made; no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceeding for that
purpose shall have been instituted or, to the knowledge of any of the Companies
or any Underwriter, threatened by the Commission, and any request of the
Commission for additional information (to be included in the Registration
Statement or the Final Prospectus or otherwise) shall have been complied with to
the Underwriters' satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred any change, or any development involving a prospective
change, in or affecting the financial position, business, prospects, or results
of operations of the Companies not contemplated by the Final Prospectus, which
in the opinion of the Underwriters, would materially, adversely affect the
market for the Securities.
(c) The Underwriters shall have received at the Closing Time an
opinion of Susan Lenczewski, Senior Counsel of the General Partner, dated the
Closing Time and addressed to the Underwriters to the effect that:
(i) There is no action, proceeding or investigation pending
or, to the best of such counsel's knowledge after due inquiry,
threatened against any of the Companies or the LPL Partnership
which in such counsel's judgment could reasonably be expected to
have a Material Adverse Effect.
(ii) None of the Companies or the LPL Partnership is in
violation of any term of (A) its partnership agreement or
certificate of incorporation or by-laws, as the case may be, (B)
any other material agreement or instrument to which it is a party
or by which it or any of its properties is bound, or (C) to the
best of such counsel's knowledge after due inquiry, any
applicable order, judgment or decree of any court, arbitrator or
governmental authority to which any of the Companies or the LPL
Partnership is a named party, which violations, in the judgment
of such counsel, could reasonably be expected to have a Material
Adverse Effect.
(iii) The Companies have obtained all consents, approvals,
authorizations, orders, registrations or qualifications of or
with any governmental agency or other governmental
instrumentality required under applicable laws, ordinances,
administrative or governmental rules or regulations in order to
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<PAGE> 16
undertake and consummate SEP II (as defined in the Preliminary
Prospectus), except such consents, approvals, authorizations,
orders, registrations or qualifications (A) which are not yet
required to be obtained, (B) which are of a routine or
administrative nature expected in the reasonable judgment of such
counsel to be obtained in the ordinary course of business or (C)
which if not obtained, would not, individually or in the
aggregate, have a Material Adverse Effect.
(d) The Underwriters shall have received at the Closing Time an
opinion of Andrews & Kurth L.L.P., counsel for the Companies, dated the Closing
Time and addressed to the Underwriters to the effect that:
(i) Each of the Partnership, the Operating Partnership and
the LPL Partnership has been duly formed and is validly existing
as a limited partnership in good standing under the Delaware
Revised Uniform Limited Partnership Act (the "Delaware Act"),
with partnership power and authority to own or lease its
properties and to conduct its business as described in the Final
Prospectus and, with respect to the Partnership, also to act as
general partner of the LPL Partnership.
(ii) The General Partner has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of Delaware, with the corporate power and authority
to own or lease its properties, to conduct its businesses, to act
as a general partner of the Partnership and the Operating
Partnership and to act as limited partner of the LPL Partnership,
in each case as described in the Final Prospectus, and is duly
qualified to do business and is in good standing under the laws
of the States of Illinois, Indiana, Michigan, Minnesota, New
York, North Dakota and Wisconsin and, to the knowledge of such
counsel (after due inquiry), such jurisdictions are the only
jurisdictions within the United States in which the Operating
Partnership owns or leases property, or conducts any business, so
as to require the General Partner to qualify to conduct business
as a foreign corporation and in which the failure to so qualify
would be likely in the reasonable judgment of such counsel to
have a Material Adverse Effect. Interprovincial Pipe Line Inc.
("IPL") is the record owner of all of the issued and outstanding
shares of capital stock of the General Partner.
(iii) The Operating Partnership has been qualified or
registered as a foreign limited partnership to conduct business
in the States of Illinois, Indiana, Michigan, Minnesota, New
York, North Dakota and Wisconsin and, to the knowledge of such
counsel (after due inquiry), such jurisdictions are the only
jurisdictions in which the Operating Partnership owns or leases
property, or conducts any business, so as to require
qualification or registration to conduct business as a foreign
limited partnership and in which the failure to so qualify or
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<PAGE> 17
register would be likely in the reasonable judgment of such
counsel to have a Material Adverse Effect.
(iv) The authorized and outstanding partnership interests of
the Partnership are as set forth under the caption "The
Partnership" in the Final Prospectus.
(v) The General Partner is the sole general partner of each
of the Partnership and the Operating Partnership and is the sole
limited partner of the LPL Partnership. The General Partner owns
of record a general partner interest in the Partnership of 1.0%,
and owns of record a limited partner interest in the Partnership
(represented by 3,912,750 Class B Common Units) of approximately
14.8%, a general partner interest in the Operating Partnership of
1.0101% and a limited partner interest in the LPL Partnership of
99%. The Partnership is the sole general partner of the LPL
Partnership and owns of record a general partner interest in the
LPL Partnership of 1.0%. The Partnership is the sole limited
partner of the Operating Partnership and owns of record a limited
partner interest in the Operating Partnership of 98.9899%.
(vi) The Registration Statement and all post-effective
amendments thereto, if any, have become effective under the Act
and, to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
threatened by the Commission; and any required filing of the
Final Prospectus pursuant to Rule 424(b) has been made in
accordance with Rule 424(b).
(vii) The Indenture has been duly qualified under the 1939
Act.
(viii) Each of the Companies has the partnership or corporate
power and authority, as the case may be, to enter into this
Agreement and, in the case of the Operating Partnership, to
issue, sell and deliver the Securities to the Underwriters as
provided herein.
(ix) This Agreement has been duly authorized, executed and
delivered by each of the Companies.
(x) The Indenture has been duly authorized, executed and
delivered by the Operating Partnership and (assuming the due
authorization, execution and delivery thereof by the Trustee)
constitutes a valid and binding agreement of the Operating
Partnership, enforceable against the Operating Partnership in
accordance with its terms, except as the enforcement thereof may
be limited or affected by (A) bankruptcy, insolvency,
reorganization, moratorium, liquidation, rearrangement,
fraudulent transfer, fraudulent conveyance and other similar laws
(including court
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decisions) now or hereafter in effect and affecting the rights
and remedies of creditors generally or providing for the relief
of debtors, (B) the refusal of a particular court to grant
equitable remedies, including without limitation specific
performance and injunctive relief, and (C) general principles of
equity (regardless of whether such remedies are sought in a
proceeding in equity or at law).
(xi) The Securities are in the form contemplated by the
Indenture, have been duly authorized by the Operating Partnership
and, assuming that the Securities have been duly authenticated by
the Trustee in the manner described in its certificate delivered
to you today (which fact such counsel need not determine by an
inspection of the Securities) and delivered against payment of
the purchase price therefor in accordance with the terms of this
Agreement, the Securities have been duly executed and delivered
by the Operating Partnership and, under the law of the State of
New York, constitute valid and binding obligations of the
Operating Partnership, enforceable against the Operating
Partnership in accordance with their terms, except as the
enforcement thereof may be limited or affected by (A) bankruptcy,
insolvency, reorganization, moratorium, liquidation,
rearrangement, fraudulent transfer, fraudulent conveyance and
other similar laws (including court decisions) now or hereafter
in effect and affecting the rights and remedies of creditors
generally or providing for the relief of debtors, (B) the refusal
of a particular court to grant equitable remedies, including
without limitation specific performance and injunctive relief,
and (C) general principles of equity (regardless of whether such
remedies are sought in a proceeding in equity or at law).
(xii) The Securities and the Indenture conform as to legal
matters in all material respects to the descriptions thereof
contained in the Final Prospectus.
(xiii) Neither the offer, sale or delivery of the Securities,
the execution, delivery or performance of this Agreement, the
Indenture and the Securities, compliance by any of the Companies
with the provisions hereof or thereof nor consummation by any of
the Companies of the transactions contemplated hereby constitutes
a breach of, or a default under, the partnership agreement,
certificate or articles of incorporation or bylaws, or other
organizational documents, of any of the Companies or the LPL
Partnership (the "Organizational Documents") or any agreement,
indenture, lease or other instrument to which any of the
Companies or the LPL Partnership is a party or by which any of
them may be bound or to which any of their respective properties
is subject that is an exhibit to the Registration Statement or to
any Incorporated Document, nor will any such action result in any
violation of any existing law, regulation, ruling (assuming
compliance with all applicable federal and state securities and
Blue Sky laws), judgment, injunction, order or decree to which
any of the Companies or the LPL Partnership is a named party and
which has been specifically identified to such counsel in a
certificate signed by an authorized officer of the Operating
Partnership, excluding in each case
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(other than with respect to the Organizational Documents) any
breaches, defaults or violations which, individually or in the
aggregate, would not have a Material Adverse Effect.
(xiv) No consent, approval, authorization or other order of,
or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency, or
official is required on the part of any of the Companies (except
as have been obtained under the Act or such as may be required
under state securities or Blue Sky laws governing the purchase
and distribution of the Securities) for the valid issuance and
sale of the Securities to the Underwriters as contemplated by
this Agreement.
(xv) The Registration Statement and the Final Prospectus and
any supplements or amendments thereto (except for the financial
statements and the notes thereto and the schedules and other
financial data included therein, as to which such counsel need
not express any opinion) comply as to form in all material
respects with the requirements of the Act; and each of the
Incorporated Documents (except for the financial statements and
the notes thereto and the schedules and other financial data
included therein, as to which counsel need not express any
opinion) complies as to form in all material respects with the
Exchange Act.
(xvi) To the knowledge of such counsel, (A) other than as
described or contemplated in the Final Prospectus (or any
supplement thereto) or any Incorporated Document, there are no
legal or governmental proceedings pending or threatened against
any of the Companies, or to which any of the Companies, or any of
their property, is subject, which are required to be described in
the Registration Statement or the Final Prospectus (or any
amendment or supplement thereto) and (B) there are no agreements,
contracts, indentures, leases or other instruments, that are
required to be described in the Registration Statement or the
Final Prospectus (or any amendment or supplement thereto) or to
be filed as an exhibit to the Registration Statement or any
Incorporated Document that are not described or filed as
required, as the case may be.
(xvii) The Amended and Restated Agreement of Limited
Partnership of the Partnership has been duly authorized, executed
and delivered by the General Partner and is a valid and legally
binding agreement of the General Partner, enforceable against the
General Partner in accordance with its terms, subject to the
qualifications that (A) the enforceability of such document may
be limited by bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights generally, (B) the enforceability of such document may be
limited by public policy, applicable law relating to fiduciary
duties and the judicial imposition of an implied covenant of good
faith and fair dealing, (C) the enforceability of equitable
rights and remedies provided for in
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<PAGE> 20
such document is subject to equitable defenses and judicial
discretion, and the enforceability of such document may be
limited by general equitable principles and (D) the
enforceability of the indemnity and contribution provisions of
such document may be limited by federal and state securities
laws; the Amended and Restated Agreement of Limited Partnership
of the Operating Partnership has been duly authorized, executed
and delivered by the General Partner and the Partnership and is a
valid and legally binding agreement of the General Partner and
the Partnership, enforceable against the General Partner and the
Partnership in accordance with its terms, subject to the
qualifications that (A) the enforceability of such document may
be limited by bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights generally, (B) the enforceability of such document may be
limited by public policy, applicable law relating to fiduciary
duties and the judicial imposition of an implied covenant of good
faith and fair dealing, (C) the enforceability of equitable
rights and remedies provided for in such document is subject to
equitable defenses and judicial discretion, and the
enforceability of such document may be limited by general
equitable principles and (D) the enforceability of the indemnity
and contribution provisions of such document may be limited by
federal and state securities laws; the Amended and Restated
Agreement of Limited Partnership of the LPL Partnership has been
duly authorized, executed and delivered by the Partnership and
the General Partner and is a valid and legally binding agreement
of the Partnership and the General Partner, enforceable against
the Partnership and the General Partner in accordance with its
terms, subject to the qualifications that (A) the enforceability
of such document may be limited by bankruptcy, insolvency,
reorganization and other laws of general applicability relating
to or affecting creditors' rights generally, (B) the
enforceability of such document may be limited by public policy,
applicable law relating to fiduciary duties and the judicial
imposition of any implied covenant of good faith and fair
dealing, (C) the enforceability of equitable rights and remedies
provided for in such document is subject to equitable defenses
and judicial discretion, and the enforceability of such document
may be limited by general equitable principles and (D) the
enforceability of the indemnity and contribution provisions of
such document may be limited by federal and state securities
laws.
(xviii) None of the Companies or the LPL Partnership is an
"Investment Company" as that term is defined in the Investment
Company Act or is required to register as an "Investment Company"
under the Investment Company Act.
(xix) None of the Companies or the LPL Partnership is a
"public utility company" or a "holding company" as such terms are
defined in the 1935 Act.
Such counsel shall also state that although such counsel has not undertaken,
except as otherwise indicated in their opinion, to determine independently, and
does not assume any responsibility for,
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the accuracy or completeness of the statements in the Registration Statement,
such counsel has participated in the preparation of the Registration Statement
and the Final Prospectus, including review and discussion of the contents
thereof (including review and discussion of the contents of all Incorporated
Documents), and nothing has come to the attention of such counsel that has
caused them to believe that the Registration Statement (including the
Incorporated Documents) at the time the Registration Statement became effective,
or the Final Prospectus, as of its date and as of the Closing Time, as the case
may be, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or that any amendment or supplement to the Final
Prospectus, as of its respective date, and as of the Closing Time, as the case
may be, contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and the notes thereto and the schedules and other financial
data included in the Registration Statement or the Final Prospectus or any
Incorporated Document). In addition, such counsel shall state that for purposes
of determining whether the fair market value of the assets of the General
Partner (excluding the General Partner's interest in the Partnership and in the
Operating Partnership) exceeds the liabilities of the General Partner by at
least $35 million, such counsel has advised the General Partner that any assets
or liabilities reflected on a balance sheet prepared in accordance with
generally accepted accounting principles that merely represent timing
differences between generally accepted accounting principles and federal income
tax accounting principles should be excluded in the making of such
determination.
In rendering such opinions, such counsel may (1) rely in respect of
factual matters upon certificates of officers of the General Partner and upon
information obtained from public officials, upon opinions of other counsel
issued in connection with the offering of the Securities pursuant to the Final
Prospectus and other sources believed by such counsel to be responsible, (2)
state that their opinion is limited to federal laws, the Delaware Act, the
Delaware General Corporation Law and New York law, (3) state that they express
no opinion with respect to state or local taxes or tax statutes to which any of
the Partnership, the limited partners of the Partnership, the Operating
Partnership, the General Partner or the LPL Partnership may be subject and (4)
state that their opinion is furnished as counsel for the Companies and the LPL
Partnership to the Underwriters and is solely for the benefit of the several
Underwriters.
(e) The Underwriters shall have received at the Closing Time an
opinion of Sullivan & Cromwell, counsel for the Companies, dated the Closing
Time and addressed to the Underwriters to the effect that (i) none of the
Companies or the LPL Partnership is (A) a "subsidiary company" of a "registered
holding company," or of a "holding company" required to be registered under the
1935 Act or (B) is an "affiliate" of a "registered holding company," or of a
"holding company" required to be registered under the 1935 Act, or of a
"subsidiary company" of a "registered holding company," or of a "holding
company" required to be registered under the 1935 Act, as such terms are defined
in the 1935 Act, and (ii) no consent, authorization, approval or filing is
required to be obtained or made under the 1935 Act in
21
<PAGE> 22
connection with the issuance and sale of the Securities by the Operating
Partnership as contemplated by the Final Prospectus.
(f) Each of (i) Sidley & Austin, with respect to the State of
Illinois, (ii) Barnes & Thornburg, with respect to the State of Indiana, (iii)
Butzel Long, with respect to the State of Michigan, (iv) Magie, Andresen, Hagg,
Paciotti, Butterworth & McCarthy, P.A., with respect to the State of Minnesota,
(v) Phillips, Lytle, Hitchcock, Blaine & Huber, with respect to the State of New
York, (vi) Pearce & Durick, with respect to the State of North Dakota and (vii)
DeWitt, Ross & Stevens S.C., with respect to the State of Wisconsin, each of
which is acting as special local counsel for the Companies, shall have furnished
to the Underwriters its written opinion or opinions, dated as of the Closing
Time in form and substance satisfactory to the Underwriters to the effect that:
(i) The Operating Partnership has been duly qualified or
registered as a foreign limited partnership for the transaction
of business under the laws of such state.
(ii) The Operating Partnership has all requisite power and
authority as a limited partnership under the laws of such state
to own or lease the portion of the assets, properties and rights
relating to the Lakehead System (as defined in the Final
Prospectus) located in such state and to conduct its business in
such state.
(iii) Neither the offer, sale or delivery of the Securities,
the execution, delivery or performance of this Agreement and the
Indenture, compliance by the Companies with the provisions hereof
or thereof nor consummation by the Companies of the transactions
contemplated hereby or thereby will result in any violation of
any existing law, regulation, ruling (assuming compliance with
all applicable state securities and Blue Sky laws), judgment,
injunction, order or decree known to such counsel after
reasonable inquiry, applicable to either of the Companies or any
of their respective properties.
(iv) No consent, approval, authorization, order, registration
or qualification of or with any governmental agency or
instrumentality of such state governing (A) oil pipelines
generally or (B) the issuance of securities by entities owning
oil pipelines, or, to such counsel's knowledge, based solely upon
its participation as special counsel in matters relating to the
offering of the Securities pursuant to the Final Prospectus and
without in any manner having conducted an independent
investigation, any other governmental agency or instrumentality
of such state having jurisdiction over either of the Companies,
as the case may be, or any of their respective properties, is
required for the sale or issuance of the Securities by the
Operating Partnership, except such consents, approvals,
authorizations, orders, registrations or qualifications (1) as
have been obtained, (2) as may be required under state securities
or Blue Sky laws, (3) which, if not
22
<PAGE> 23
obtained, would not, individually or in the aggregate, have a
material adverse effect upon the ability of the Operating
Partnership to conduct its business substantially in accordance
with its past practice or (4) as set forth or contemplated in the
Final Prospectus.
(g) The Underwriters shall have received at the Closing Time an
opinion of Steptoe & Johnson, special FERC counsel for the Companies, dated the
Closing Time and addressed to the Underwriters to the effect that:
(i) No consent, approval, authorization, order, registration
or qualification of or with the FERC is required for the issuance
of the Securities, the offer and sale of the Securities by the
Operating Partnership or the execution, delivery and performance
of this Agreement, the Indenture and the Securities.
(ii) To the knowledge of such counsel and without in any
manner having conducted an investigation, there are no material
legal or governmental proceedings pending or threatened against
any of the Companies by or before the FERC or on appeal from the
FERC, except as set forth in or contemplated by the Final
Prospectus.
(h) The Underwriters shall have received at the Closing Time an
opinion of Loomis, Ewert, Ederer, Parsley, Davis & Gotting, special Michigan
regulatory counsel to the Companies, dated the Closing Time and addressed to the
Underwriters to the effect that no consent, approval, authorization, order,
registration or qualification of or with the Michigan Public Service Commission
is required for the issuance and sale of the Securities by the Operating
Partnership, except such consents, approvals, authorizations, orders,
registrations or qualifications as have been obtained.
(i) The Underwriters shall have received at the Closing Time an
opinion of McCarthy Tetrault, Canadian counsel to IPL, dated the Closing Time
and addressed to the Underwriters to the effect that:
(i) No consent, approval, authorization, order, registration
or qualification of or with, any governmental agency or other
governmental instrumentality of Canada or any province thereof
having jurisdiction over any of the Companies or IPL is required
for the issuance and sale of the Securities as contemplated by
the Final Prospectus.
(ii) To the best of such counsel's knowledge, there is no
litigation or governmental proceeding to which IPL is a party or
to which its properties are subject that is pending or threatened
against it that, if adversely determined, would have a Material
Adverse Effect.
23
<PAGE> 24
(j) The Underwriters shall have received at the Closing Time an
opinion of Baker & Botts, L.L.P., counsel for the Underwriters, dated the
Closing Time, with respect to the matters referred to in clauses (i), (vi),
(vii), (viii), (ix), (x), (xii) and (xv) (but only with respect to the
Registration Statement and the Final Prospectus and any supplements or
amendments thereto) of the foregoing paragraph (d) and such other related
matters as the Underwriters may request.
(k) The Underwriters shall have received letters addressed to the
Underwriters and dated the date hereof and the Closing Time from
PricewaterhouseCoopers LLP, independent accountants, substantially in the forms
heretofore approved by the Underwriters.
(l) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of any of the Companies shall
be threatened by the Commission at or prior to the Closing Time; (ii) there
shall not have been any change in the capitalization of the Operating
Partnership nor any material increase in the short-term or long-term debt of the
Operating Partnership (other than in the ordinary course of business) from that
set forth or contemplated in the Registration Statement or the Final Prospectus
(or any amendment or supplement thereto); (iii) none of the Companies shall have
any liabilities or obligations, direct or contingent (whether or not in the
ordinary course of business), that are material to the General Partner or the
Partnership and the Operating Partnership (taken as a whole), other than those
reflected in the Registration Statement or the Final Prospectus (or any
amendment or supplement thereto); and (iv) all the representations and
warranties of the Companies contained in this Agreement shall be true and
correct in all material respects on and as of the date hereof and on and as of
the Closing Time as if made on and as of the Closing Time, and the Underwriters
shall have received a certificate, dated the Closing Time and signed by the
chief executive officer and the chief financial officer of the General Partner
(or such other officers as are acceptable to the Underwriters), to the effect
set forth in this Section 8(l) and in Section 8(m) hereof.
(m) None of the Companies shall have failed at or prior to the
Closing Time to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder at or
prior to the Closing Time.
(n) At the Closing Time, the Securities shall be rated at least
"A3" by Moody's Investors Services Inc. and "A-" by Standard & Poor's Ratings
Services, a division of The McGrawHill Companies, Inc., and the Operating
Partnership shall have delivered to the Underwriters a letter dated the Closing
Time, from each such rating agency, or other evidence satisfactory to the
Underwriters, confirming that the Securities have such ratings; and since the
date of this Agreement, there shall not have occurred a downgrading in the
rating assigned to the Securities or any of the Operating Partnership's other
debt securities by any "nationally recognized statistical rating agency," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and no such organization shall have publicly announced that it has under
surveillance or review its rating of the Securities or any of the Operating
Partnership's other debt securities.
24
<PAGE> 25
(o) Each of the Operating Partnership and the General Partner
shall have furnished or caused to be furnished to the Underwriters, such further
certificates and documents as the Underwriters shall have reasonably requested
that are customary in closing transactions of the nature contemplated by this
Agreement.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
Any certificate or document signed by any officer of the General
Partner, whether on behalf of itself or the Partnership or the Operating
Partnership, and delivered to the Underwriters or to counsel for the
Underwriters, shall be deemed a representation and warranty by the Companies to
each Underwriter as to the statements made therein.
9. Expenses. The Companies agree to pay the following costs and
expenses and all other costs and expenses incident to the performance by them of
their obligations hereunder: (i) the preparation, printing or reproduction, and
filing with the Commission of the Registration Statement (including financial
statements and exhibits thereto), the Preliminary Prospectus, the Final
Prospectus, each amendment or supplement to any of them and this Agreement; (ii)
the printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, the Basic Prospectus, the Preliminary Prospectus, the
Final Prospectus, the Incorporated Documents, and all amendments or supplements
to any of them, as may be reasonably requested for use in connection with the
offering and sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, any Agreement among Underwriters,
the Indenture, the preliminary and supplemental Blue Sky Memoranda and all other
agreements or documents printed (or reproduced) and delivered in connection with
the offering of the Securities; (v) the fees and expenses of the Trustee and any
agent of the Trustee and the fees and disbursements of counsel for the Trustee;
(vi) the registration or qualification of the Securities for offer and sale
under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparation, printing or
reproduction, and delivery of the preliminary and supplemental Blue Sky
Memoranda and such registration and qualification); (vii) the filing fees and
the fees and expenses of counsel for the Underwriters in connection with any
filings required to be made with the National Association of Securities Dealers,
Inc.; (viii) the transportation and lodging expenses incurred by or on behalf of
representatives of the Companies in connection with presentations to prospective
purchasers of the Securities; (ix) the fees and expenses of the accountants for
the Companies; (x) the fees and expenses of counsel (including local and special
counsel) for the Companies; (xi) any fees payable in connection with the rating
of the Securities; and (xii) any fees payable to DTC in connection with the
Securities being book-entry only securities.
25
<PAGE> 26
10. Effective Date of Agreement. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto; or
(ii) if, at the time this Agreement is executed and delivered, it is necessary
for the Registration Statement or a post-effective amendment thereto to be
declared effective before the offering of the Securities may commence, when
notification of the effectiveness of the Registration Statement or such
post-effective amendment has been given by the Commission. Until such time as
this Agreement shall have become effective, it may be terminated by the General
Partner, on behalf of the Companies, by notifying the Underwriters, or by the
Underwriters, by notifying the General Partner, on behalf of the Companies.
If one or more of the Underwriters shall fail at Closing Time to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Underwriters shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Underwriters shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the aggregate principal amount of the Securities to be purchased
hereunder, each of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Securities to be purchased hereunder,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Underwriters or the Operating Partnership shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Final Prospectus or in any other documents or arrangements. As used herein,
the term "Underwriter" includes any person substituted for an Underwriter under
this Section 10.
Any notice under this Section 10 may be made by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject to
termination in the Underwriters' absolute discretion, without liability on the
part of any Underwriter to the
26
<PAGE> 27
Companies by notice to the General Partner, on behalf of the Companies, if prior
to the Closing Time; (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Final Prospectus, any material adverse change in the financial position, results
of operations, business or prospects of the General Partner or the Partnership
and the Operating Partnership (taken as a whole), whether or not arising in the
ordinary course of business; (ii) trading in the Class A Common Units of the
Partnership shall be suspended or subject to any restriction or limitation not
in effect on the date of this Agreement; (iii) trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the Nasdaq
National Market shall have been suspended or materially limited; (iv) a general
moratorium on commercial banking activities in New York shall have been declared
by either federal or state authorities; or (v) there shall have occurred any
material adverse change in the financial markets in the United States or Canada,
any outbreak or escalation of hostilities or other international or domestic
calamity, crisis or change in political, financial or economic conditions, the
effect of which on the financial markets of the United States is such as to make
it, in the Underwriters' judgment, impracticable or inadvisable to commence or
continue the offering of the Securities on the terms set forth on the cover page
of the Final Prospectus or to enforce contracts for the resale of the Securities
by the Underwriters. Notice of such termination shall be promptly given to the
General Partner, on behalf of the Companies, by telegram, telecopy or telephone
and shall be subsequently confirmed by letter.
12. Information Furnished by the Underwriters. The statements set
forth in the last paragraph on the cover page, the stabilization legend on the
inside cover page, and the statements in the first, second and third paragraphs,
the second sentence of the fifth paragraph and the penultimate sentence of the
last paragraph under the caption "Underwriting" in the Preliminary Prospectus
and in the Final Prospectus, constitute the only information furnished by or on
behalf of the Underwriters as such information is referred to in Sections 6(a),
6(b) and 7 hereof.
13. Miscellaneous. Except as otherwise provided in Sections 5, 10 and
11 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to any of the Companies, at the office of
the General Partner, at Suite 400, Lake Superior Place, 21 West Superior Street,
Duluth, Minnesota 55802, Attention: Susan Lenczewski, Secretary; or (ii) if to
the Underwriters, care of Merrill Lynch, 1221 McKinney, Suite 2700, Houston,
Texas 77010, Attention: Rob Jones.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Companies, the directors and officers of the General
Partner, and the other controlling persons referred to in Section 7 hereof and
their respective successors and assigns, to the extent provided herein, and no
other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" nor the term "successors and assigns" as
used in this Agreement shall include a purchaser from any Underwriter of any of
the Securities in his status as such purchaser.
27
<PAGE> 28
14. Applicable Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
15. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Companies submitted pursuant hereto, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or controlling person, or by or on
behalf of the Companies, and shall survive delivery of the Securities to the
Underwriters.
28
<PAGE> 29
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Operating Partnership a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Companies in accordance with
its terms.
Very truly yours,
LAKEHEAD PIPE LINE PARTNERS, L.P.
By: Lakehead Pipe Line Company, Inc.
General Partner
By: /s/ Mark A. Maki
--------------------------------------
Name: Mark A. Maki
--------------------------------
Title: Chief Accountant
-------------------------------
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP
By: Lakehead Pipe Line Company, Inc.
General Partner
By: /s/ Mark A. Maki
--------------------------------------
Name: Mark A. Maki
--------------------------------
Title: Chief Accountant
-------------------------------
LAKEHEAD PIPE LINE COMPANY, INC.
By: /s/ Mark A. Maki
--------------------------------------
Name: Mark A. Maki
--------------------------------
Title: Chief Accountant
-------------------------------
29
<PAGE> 30
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CHASE SECURITIES INC.
ABN AMRO INCORPORATED
CIBC OPPENHEIMER CORP.
CITICORP SECURITIES, INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
NESBITT BURNS SECURITIES, INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Rob L. Jones
-------------------------------
Authorized Signatory
30
<PAGE> 31
SCHEDULE A
<TABLE>
<CAPTION>
Principal Principal
Amount of Amount of
Name of Underwriter 2018 Notes 2028 Notes
------------------- ------------ ------------
<S> <C> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated .............................. $ 52,000,000 $ 52,000,000
Chase Securities Inc. ................................. 24,000,000 24,000,000
ABN AMRO Incorporated ................................. 6,000,000 6,000,000
Citicorp Securities, Inc. ............................. 6,000,000 6,000,000
Credit Suisse First Boston Corporation ................ 6,000,000 6,000,000
CIBC Oppenheimer Corp. ................................ 3,000,000 3,000,000
Nesbitt Burns Securities, Inc. ........................ 3,000,000 3,000,000
------------ ------------
Total ................................................. $100,000,000 $100,000,000
============ ============
</TABLE>
Sch A-1
<PAGE> 32
SCHEDULE B
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP
$100,000,000 7% Senior Notes due 2018
1. The initial public offering price of the 2018 Notes shall be
99.734% of the principal amount thereof, plus accrued interest, if any, from the
date of issuance.
2. The purchase price to be paid by the Underwriters for the 2018
Notes shall be 98.859% of the principal amount thereof.
3. The interest rate on the 2018 Notes shall be 7% per annum.
4. The 2018 Notes will be redeemable at the option of the Operating
Partnership, in whole or in part, in principal amounts of $1,000 or any integral
multiple thereof, at any time at a redemption price equal to the sum of (a) an
amount equal to 100% of the then-outstanding principal amount thereof and (b)
the applicable Make-Whole Premium (as defined in the Final Prospectus), together
with accrued and unpaid interest to the date fixed for redemption.
Sch B-1
<PAGE> 33
SCHEDULE B
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP
$100,000,000 7 1/8% Senior Notes due 2028
1. The initial public offering price of the 2028 Notes shall be
99.693% of the principal amount thereof, plus accrued interest, if any, from the
date of issuance.
2. The purchase price to be paid by the Underwriters for the 2028
Notes shall be 98.818% of the principal amount thereof.
3. The interest rate on the 2028 Notes shall be 7 1/8% per annum.
4. The 2028 Notes will be redeemable at the option of the Operating
Partnership, in whole or in part, in principal amounts of $1,000 or any integral
multiple thereof, at any time at a redemption price equal to the sum of (a) an
amount equal to 100% of the then-outstanding principal amount thereof and (b)
the applicable Make-Whole Premium (as defined in the Final Prospectus), together
with accrued and unpaid interest to the date fixed for redemption.
Sch B-2
<PAGE> 1
EXHIBIT 4.1
================================================================================
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP
ISSUER
THE CHASE MANHATTAN BANK
TRUSTEE
------------------
INDENTURE
DATED AS OF SEPTEMBER 15, 1998
------------------
SENIOR DEBT SECURITIES
------------------
================================================================================
<PAGE> 2
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
----------- -----------------
<S> <C>
Section 310(a)(1)....................................................................... 609
(a)(2)....................................................................... 609
(a)(3)....................................................................... Not Applicable
(a)(4)....................................................................... Not Applicable
(b).......................................................................... 608; 610
Section 311(a).......................................................................... 613
(b).......................................................................... 613
Section 312(a).......................................................................... 701; 702
(b).......................................................................... 702
(c).......................................................................... 702
Section 313(a).......................................................................... 703
(b).......................................................................... 703
(c).......................................................................... 703
(d).......................................................................... 703
Section 314(a).......................................................................... 704
(a)(4)....................................................................... 104; 1004
(b).......................................................................... Not Applicable
(c)(1)....................................................................... 101
(c)(2)....................................................................... 101; 102
(c)(3)....................................................................... Not Applicable
(d).......................................................................... Not Applicable
(e).......................................................................... 102
Section 315(a).......................................................................... 601
(b).......................................................................... 602
(c).......................................................................... 601
(d).......................................................................... 601
(e).......................................................................... 514
Section 316(a).......................................................................... 101
(a)(1)(A).................................................................... 502; 512
(a)(1)(B).................................................................... 513
(a)(2)....................................................................... Not Applicable
(b).......................................................................... 508
(c).......................................................................... 104
Section 317(a)(1)....................................................................... 503
(a)(2)....................................................................... 504
(b).......................................................................... 1003
Section 318(a).......................................................................... 107
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
i
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions..................................................................................1
SECTION 102. Compliance Certificates and Opinions........................................................10
SECTION 103. Form of Documents Delivered to Trustee......................................................10
SECTION 104. Acts of Holders; Record Dates...............................................................11
SECTION 105. Notices, Etc., to Trustee and Company.......................................................12
SECTION 106. Notice to Holders; Waiver...................................................................12
SECTION 107. Conflict with Trust Indenture Act...........................................................13
SECTION 108. Effect of Headings and Table of Contents....................................................13
SECTION 109. Successors and Assigns......................................................................13
SECTION 110. Separability Clause.........................................................................13
SECTION 111. Benefits of Indenture.......................................................................13
SECTION 112. Governing Law...............................................................................14
SECTION 113. Legal Holidays..............................................................................14
SECTION 114. Language of Notices, Etc....................................................................14
SECTION 115. Non-Recourse to the General Partner and Lakehead; No Personal
Liability of Officers, Directors, Employees or Partners.....................................14
ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally.............................................................................15
SECTION 202. Form of Face of Security....................................................................15
SECTION 203. Form of Reverse of Security.................................................................18
SECTION 204. Global Securities...........................................................................23
SECTION 205. Form of Trustee's Certificate and Authorization.............................................24
ARTICLE III
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series........................................................24
SECTION 302. Denominations...............................................................................27
SECTION 303. Execution, Authentication, Delivery and Dating..............................................28
SECTION 304. Temporary Securities........................................................................29
SECTION 305. Registration, Registration of Transfer and Exchange.........................................30
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities............................................32
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 307. Payment of Interest; Interest Rights Preserved..............................................33
SECTION 308. Persons Deemed Owners.......................................................................34
SECTION 309. Cancellation................................................................................34
SECTION 310. Computation of Interest.....................................................................35
SECTION 311. CUSIP Numbers...............................................................................35
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.....................................................35
SECTION 402. Application of Trust Money..................................................................36
ARTICLE V
REMEDIES
SECTION 501. Events of Default...........................................................................37
SECTION 502. Acceleration of Maturity; Rescission and Annulment..........................................38
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.............................39
SECTION 504. Trustee May File Proofs of Claim............................................................39
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.................................40
SECTION 506. Application of Money Collected..............................................................40
SECTION 507. Limitation on Suits.........................................................................40
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest...................41
SECTION 509. Restoration of Rights and Remedies..........................................................41
SECTION 510. Rights and Remedies Cumulative..............................................................42
SECTION 511. Delay or Omission Not Waiver................................................................42
SECTION 512. Control by Holders..........................................................................42
SECTION 513. Waiver of Past Defaults.....................................................................42
SECTION 514. Undertaking for Costs.......................................................................43
SECTION 515. Waiver of Usury, Stay or Extension Laws.....................................................43
ARTICLE VI
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.........................................................43
SECTION 602. Notice of Defaults..........................................................................44
SECTION 603. Certain Rights of Trustee...................................................................44
SECTION 604. Not Responsible for Recitals or Issuance of Securities......................................45
SECTION 605. May Hold Securities.........................................................................45
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
SECTION 606. Money Held in Trust.........................................................................45
SECTION 607. Compensation and Reimbursement..............................................................46
SECTION 608. Disqualification; Conflicting Interests.....................................................46
SECTION 609. Corporate Trustee Required; Eligibility.....................................................47
SECTION 610. Resignation and Removal; Appointment of Successor...........................................47
SECTION 611. Acceptance of Appointment by Successor......................................................48
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.................................49
SECTION 613. Preferential Collection of Claims Against Company...........................................50
SECTION 614. Appointment of Authenticating Agent.........................................................50
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders...................................52
SECTION 702. Preservation of Information; Communications to Holders......................................52
SECTION 703. Reports by Trustee..........................................................................52
SECTION 704. Reports by Company..........................................................................53
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms........................................53
SECTION 802. Successor Substituted.......................................................................54
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders..........................................54
SECTION 902. Supplemental Indentures with Consent of Holders.............................................55
SECTION 903. Execution of Supplemental Indentures........................................................56
SECTION 904. Effect of Supplemental Indentures...........................................................56
SECTION 905. Conformity with Trust Indenture Act.........................................................57
SECTION 906. Reference in Securities to Supplemental Indentures..........................................57
</TABLE>
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<TABLE>
<S> <C> <C>
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest..................................................57
SECTION 1002. Maintenance of Office or Agency.............................................................57
SECTION 1003. Money for Securities Payments to Be Held in Trust...........................................58
SECTION 1004. Statement by Officers as to Default.........................................................59
SECTION 1005. Existence...................................................................................59
SECTION 1006. Limitations on Liens........................................................................59
SECTION 1007. Restriction of Sale-Leaseback Transaction...................................................61
SECTION 1008. Waiver of Certain Covenants.................................................................62
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article....................................................................62
SECTION 1102. Election to Redeem; Notice to Trustee.......................................................63
SECTION 1103. Selection by Trustee of Securities to be Redeemed...........................................63
SECTION 1104. Notice of Redemption........................................................................63
SECTION 1105. Deposit of Redemption Price.................................................................64
SECTION 1106. Securities Payable on Redemption Date.......................................................64
SECTION 1107. Securities Redeemed in Part.................................................................65
ARTICLE XII
SINKING FUNDS
SECTION 1201. Applicability of Article....................................................................65
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.......................................65
SECTION 1203. Redemption of Securities for Sinking Fund...................................................66
ARTICLE XIII
DEFEASANCE
SECTION 1301. Applicability of Article....................................................................66
SECTION 1302. Legal Defeasance............................................................................66
SECTION 1303. Covenant Defeasance.........................................................................68
SECTION 1304. Application by Trustee of Funds Deposited for Payment of Securities.........................69
SECTION 1305. Repayment to Company........................................................................70
</TABLE>
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<PAGE> 7
INDENTURE dated as of September 15, 1998, between LAKEHEAD PIPE LINE
COMPANY, LIMITED PARTNERSHIP, a Delaware limited partnership (the "Company"),
having its principal office at Lake Superior Place, 21 West Superior Street,
Duluth, Minnesota 55802, and THE CHASE MANHATTAN BANK, a New York banking
corporation, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities"), to be
issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
that are required to be a part of this Indenture and, to the extent applicable,
shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof,
as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly, or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
<PAGE> 8
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States at the date
of such computation;
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(5) the words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors or the protection of creditors.
"Board of Directors" means the board of directors of the General
Partner, or the executive or any other committee of that board duly authorized
to act in respect thereof. If the Company shall change its form of entity to
other than a limited partnership, the references to officers or the Board of
Directors of the General Partner shall mean the officers or the Board of
Directors (or other comparable governing body) of the Company.
"Board Resolution" means a copy of a resolution certified by the
Corporate Secretary of the General Partner, the principal financial officer of
the General Partner or any other authorized officer of the General Partner or a
person duly authorized by any of them, to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
2
<PAGE> 9
"Business Day", when used with respect to any Place of Payment or other
location, means, except as otherwise provided as contemplated by Section 301
with respect to any series of Securities, each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in that
Place of Payment or other location are authorized or obligated by law, executive
order or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by the Chairman of the Board, President, Chief
Accountant or a Vice President of the General Partner, and by the Treasurer or
Secretary of the General Partner, and delivered to the Trustee, or if the
Company shall change its form of entity to other than a limited partnership, by
Persons or officers, members, agents and the like positions comparable to those
of the foregoing nature, as applicable.
"Consolidated Net Tangible Assets" means, at any date of determination,
the total amount of assets after deducting therefrom (1) all current liabilities
(excluding (A) any current liabilities that by their terms are extendable or
renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed, and (B) current
maturities of long-term debt), and (2) the value (net of any applicable
reserves) of all goodwill, trade names, trademarks, patents and other like
intangible assets, all as set forth on the consolidated balance sheet of the
Company and its consolidated subsidiaries for the Company's most recently
completed fiscal quarter, prepared in accordance with generally accepted
accounting principles.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which at the date hereof is 450 West 33rd Street, 15th Floor, New
York, NY 10001-2697.
"corporation" includes corporations, associations, partnerships,
limited liability companies, joint-stock companies and business trusts.
"covenant defeasance" has the meaning specified in Section 1303.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
3
<PAGE> 10
"Debt" means any obligation created or assumed by any Person for the
repayment of money borrowed, any purchase money obligation created or assumed by
such Person and any guarantee of the foregoing.
"Default" means, with respect to a series of Securities, 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.
"Defaulted Interest" has the meaning specified in Section 307.
"defeasance" has the meaning specified in Section 1302.
"Definitive Security" means a Security other than a Global Security or
a temporary Security.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as Depositary
for such Securities as contemplated by Section 301, until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter shall mean or include each Person which is then a Depositary
hereunder, and if at any time there is more than one such Person, shall be a
collective reference to such Persons.
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"Funded Debt" means all Debt maturing one year or more from the date of
the creation thereof, all Debt directly or indirectly renewable or extendible,
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.
"General Partner" means Lakehead Pipe Line Company, Inc., a Delaware
corporation.
"Global Security" means a Security in global form that evidences all or
part of the Securities of any series and is registered in the name of, the
Depositary for such Securities or a nominee thereof.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
4
<PAGE> 11
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" also shall include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Issue Date" means the date on which Securities are initially issued
under this Indenture.
"Lien" means, as to any entity, any mortgage, lien, pledge, security
interest or other encumbrance in or on, or adverse interest or title of any
vendor, lessor, lender or other secured party to or of the entity under
conditional sale or other title retention agreement or capital lease with
respect to, any property or asset of the entity.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(3).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, Chief Accountant or a Vice President, and by the
Treasurer or the Secretary, of the General Partner (or if the Company shall
change its form of entity to other than a limited partnership, by Persons or
officers, members, agents and comparable positions as applicable to those of the
foregoing nature, as applicable), and delivered to the Trustee. One of the
officers or such other Persons (as applicable) signing an Officers' Certificate
given pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the General Partner (or if the Company shall change its
form of entity to other than a limited partnership, by Persons or officers,
members, agents and comparable positions as applicable to those of the foregoing
nature, as applicable).
"Opinion of Counsel" means a written opinion of legal counsel, who may
be an employee of or counsel for the Company.
5
<PAGE> 12
"Original Issue Discount Security" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities; provided, however, that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor has been made;
(3) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(4) Securities, except to the extent provided in Sections 1302
and 1303, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article XIII;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (A) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof on such date pursuant to Section 502, (B) the principal amount of a
Security denominated in one or more currencies or currency units other than U.S.
dollars shall be the U.S. dollar equivalent of such currencies or currency
units, determined in the manner provided as contemplated by Section 301 on the
date of original issuance of such Security, of the principal amount (or, in the
case of an Original Issue Discount Security, the U.S. dollar equivalent (as so
determined) on the date of original issuance of such Security, of the amount
determined as provided in Clause (A) above) of such Security, and (C) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned as described in Clause (C)
above which have
6
<PAGE> 13
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Stated Maturity or Stated Maturities
thereof, the original issue date or dates thereof, the redemption provisions, if
any, with respect thereto, and any other terms specified as contemplated by
Section 301 with respect thereto, are to be determined by the Company upon the
issuance of such Securities.
"Permitted Liens" means (1) Liens upon rights-of-way for pipeline
purposes; (2) any statutory or governmental Lien, mechanics', materialmen's,
carriers' or similar Lien incurred in the ordinary course of business which is
not yet due or which is being contested in good faith by appropriate proceedings
and any undetermined Lien which is incidental to construction; (3) the right
reserved to, or vested in, any municipality or public authority by the terms of
any right, power, franchise, grant, license, permit or by any provision of law,
to purchase or recapture or to designate a purchaser of, any property; (4) Liens
of taxes and assessments which are (A) for the then current year, (B) not at the
time delinquent, or (C) delinquent but the validity of which is being contested
at the time by the Company or any Restricted Subsidiary in good faith; (5) Liens
of, or to secure performance of, leases, other than capital leases; (6) any Lien
upon, or deposits of, any assets in favor of any surety company or clerk of
court for the purpose of obtaining indemnity or stay of judicial proceedings;
(7) any Lien upon property or assets acquired or sold by the Company or any
Restricted Subsidiary resulting from the exercise of any rights arising out of
defaults on receivables; (8) any Lien incurred in the ordinary course of
business in connection with workmen's compensation, unemployment insurance,
temporary disability, social security, retiree health or similar laws or
regulations or to secure obligations imposed by statute or governmental
regulations; (9) any Lien upon any property or assets in accordance with
customary banking practice to secure any Debt incurred by the Company or any
Restricted Subsidiary in connection with the exporting of goods to, or between,
or the marketing of goods in, or the importing of goods from, foreign countries;
(10) any Lien in favor of the United States of America or any state thereof, or
any other country, or any political subdivision of any of the foregoing, to
secure partial, progress, advance, or other payments pursuant to any contract or
statute, or any Lien securing industrial development, pollution control, or
similar revenue bonds; or (11) any easements, exceptions or reservations in any
property of the Company or any Subsidiary granted or reserved for the purpose of
pipelines, roads, the removal of oil, gas, coal or other minerals, and other
like purposes, or for the joint or common use of real property, facilities and
equipment, which are incidental to, and do not materially interfere with, the
ordinary conduct of its business or the business of the Company and its
Subsidiaries, taken as a whole.
7
<PAGE> 14
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust, other
entity, unincorporated organization or government, or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means, unless otherwise specifically provided for with respect to such
series as contemplated by Section 301, the office or agency of the Company in
The City of New York and such other place or places where, subject to the
provisions of Section 1002, the principal of and any premium and interest on the
Securities of that series are payable as specified as contemplated by Section
301.
"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 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same Debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means (1) any pipeline assets of the Company or
any Restricted Subsidiary, including any related facilities employed in the
transportation, terminalling or storage of crude oil or natural gas liquids,
that are located in the United States or Canada and (2) any processing or
manufacturing plant or terminal owned or leased by the Company or any Subsidiary
that is located within the United States or Canada, except, in the case of
either clause (1) or (2), (A) any assets consisting of inventories, furniture,
office fixtures and equipment (including data processing equipment), vehicles
and equipment used on, or useful with, vehicles, and (B) any such assets, plant
or terminal which, in the opinion of the Board of Directors, is not material in
relation to the activities of the Company and its Subsidiaries, taken as a
whole.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Restricted Subsidiary" means any Subsidiary of the Company owning or
leasing any Principal Property.
"Sale-Leaseback Transaction" means the sale or transfer by the Company
or any Restricted Subsidiary of any Principal Property to a Person (other than
the Company or a Restricted Subsidiary) and the taking back by the Company or
any Restricted Subsidiary, as the case may be, of a lease of such Principal
Property.
8
<PAGE> 15
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, (1) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of capital stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person and (2) any partnership (A) the sole general partner or the managing
general partner of which is such Person or an entity described in clause (1) and
related to such Person, (B) the only general partners of which are such Person
or of one or more entities described in clause (1) and related to such Person
(or any combination thereof) or (C) as to which such Person, or an entity
described in clause (1) and related to such Person, has the right to receive
more than 50% of the distributions of such partnership or has the right in the
event of dissolution to more than 50% of the assets of such partnership.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as otherwise
provided in Section 905; provided, however, that if the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean each Trustee with respect to
Securities of that series.
"U.S. Government Obligations" means securities which are (1) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (2) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, each of which are not callable or redeemable at the option of the
issuer thereof.
9
<PAGE> 16
"Vice President", when used with respect to the Company, means any vice
president of the General Partner, or when used with respect to the Trustee,
means any vice president of the Trustee.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates or opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the General Partner, or
an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 1004) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(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 each such individual,
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, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the General
Partner may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the
10
<PAGE> 17
Company or the General Partner stating that the information with respect to such
factual matters is in the possession of the Company or the General Partner,
unless such counsel knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed (either physically or by means of a facsimile
or an electronic transmission, provided that such electronic transmission is
transmitted through the facilities of a Depositary) by such Holders in person or
by an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered (either physically or by means of a facsimile or an electronic
transmission, provided that such electronic transmission is transmitted through
the facilities of a Depositary) to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 315 of the
Trust Indenture Act) conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership, principal amount and serial numbers of Securities held
by any Person, and the date of commencement of such Person's holding the same,
shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other action of the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in
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<PAGE> 18
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any different part of such principal amount.
The Company may set any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders of Securities of such series, but the Company shall have no obligation
to do so. With regard to any record date set pursuant to this paragraph, the
Holders of Outstanding Securities of the relevant series on such record date (or
their duly appointed agents), and only such Persons, shall be entitled to give
or take the relevant action, whether or not such Holders remain Holders after
such record date.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention: Global
Trust Services Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at Lake Superior Place, 21 West Superior Street, Duluth,
Minnesota 55802, to the attention of the Corporate Secretary, or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid (if international mail, by
air mail), to each Holder affected by such event, at his address as it appears
in the Security Register, not later than the latest date (if any), and not
earlier than the earliest date (if any), prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively
12
<PAGE> 19
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice.
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 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.
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 by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or excluded, as the case may be.
SECTION 108. 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 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
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<PAGE> 20
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of the Securities of any series which specifically
states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, provided that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
SECTION 114. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent, waiver
or Act required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 115. Non-Recourse to the General Partner and Lakehead; No
Personal Liability of Officers, Directors, Employees or
Partners.
Obligations of the Company under this Indenture and the Securities
hereunder are non-recourse to the General Partner and Lakehead Pipe Line
Partners, L.P., a Delaware limited partnership ("Lakehead"), and their
respective Affiliates (other than the Company), and payable only out of cash
flow and assets of the Company. The Trustee, and each Holder of a Security by
its acceptance thereof, will be deemed to have agreed in this Indenture that (1)
neither the General Partner nor its assets nor Lakehead nor its assets (nor any
of their respective Affiliates other than the Company, nor their respective
assets) shall be liable for any of the obligations of the Company under this
Indenture or such Securities, and (2) no director, officer, employee,
stockholder or unitholder, as such, of the Company, the Trustee, the General
Partner, Lakehead or any Affiliate of any of the foregoing entities shall have
any personal liability in respect of the obligations of the Company under this
Indenture or such Securities by reason of his, her or its status.
Notwithstanding the foregoing, nothing in this Section shall be construed to
modify or supersede any obligation of Lakehead or the General Partner to restore
any negative balance in their respective capital accounts (maintained by the
Company pursuant to the Company's Amended and Restated Agreement of Limited
Partnership) upon liquidation of their respective interests in the Company.
14
<PAGE> 21
ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable tax
laws or the rules of any securities exchange or automated quotation system on
which the Securities of such series may be listed or traded or Depositary
therefor or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities. If
the form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by an authorized officer or other authorized Person on behalf of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the United States Internal Revenue Code
and the regulations thereunder.]
[If a Global Security,--insert legend required by Section 204 of the
Indenture] [If applicable, insert--UNLESS THIS SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION, TO THE COMPANY 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.]
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP
15
<PAGE> 22
[TITLE OF SECURITY]
NO. U.S.$
[CUSIP No. ]
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP, a Delaware limited
partnership (herein called the "Company", 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 [if the Security is to bear interest prior to
Maturity, insert--, and to pay interest thereon from , or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on and in each year, commencing ,
at the rate of % per annum, until the principal hereof is paid or
made available for payment [if applicable, insert--, and at the rate of %
per annum on any overdue principal and premium and on any overdue installment of
interest]. [If applicable, insert -- 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
or (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 business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice of which shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any 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].
[If the Security is not to bear interest prior to Maturity, insert--The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
16
<PAGE> 23
interest at the rate of % per annum, which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of % per annum, which shall accrue from the date
of such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
[If a Global Security, insert--Payment of the principal of [(and
premium, if any)] and [if applicable, insert--any such] interest on this
Security will be made by transfer of immediately available funds to a bank
account in 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 [state other currency].]
[If a Definitive Security, insert--Payment of the principal of [(and
premium, if any)] and [if applicable, insert--any such] interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in , [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]
[state other currency] [or subject to any laws or regulations applicable thereto
and to the right of the Company (as provided in the Indenture) to rescind the
designation of any such Paying Agent, at the [main] offices of in
and in , or at such other offices or agencies as the Company
may designate, by [United States Dollar] [state other currency] check drawn on,
or 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 at least [ ] days prior to the
payment date)] [if applicable, insert--; provided, however, that payment of
interest may be made at the option of the Company by [United States Dollar]
[state other currency] 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] [state other currency] account maintained by the
payee with a bank in The City of New York [state other Place of Payment] (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)].]
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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
17
<PAGE> 24
Dated:
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP
By: Lakehead Pipe Line Company, Inc.,
Its General Partner
By:
-----------------------------------
Name:
Title:
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (the "Securities"), issued and to be issued in one or more series under
an Indenture dated as of September 15, 1998 (the "Indenture"), between the
Company and The Chase Manhattan Bank, 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 Company, 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 [if applicable, insert--, limited in aggregate principal
amount to U.S.$ ].
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, [if
applicable, insert--(1) on in any year commencing with the year and ending with
the year through operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert--on or after , ], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert--on or
before , %, and if redeemed] during the 12-month period
beginning of the years indicated,
18
<PAGE> 25
<TABLE>
<CAPTION>
YEAR REDEMPTION PRICE YEAR
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption [if applicable, insert--(whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such 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 Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, (1)
on in any year commencing with the year and ending with the year through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert--on or after ], as a whole or in part, at the election of
the Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below: If redeemed during the 12-month period beginning
of the years indicated,
<TABLE>
<CAPTION>
REDEMPTION PRICE FOR REDEMPTION PRICE FOR
REDEMPTION THROUGH REDEMPTION OTHERWISE
OPERATION OF THE SINKING THAN THROUGH OPERATION
YEAR FUND OF THE SINKING FUND
- ----------------------------------------- --------------------------- ------------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such 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 Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert--The sinking fund for this series provides for
the redemption on in each year beginning with the year and ending
with the year of [if applicable,--not less than $ ("mandatory sinking
fund") and not more than] $ aggregate principal amount of Securities of
this series. Securities of this series acquired or redeemed by the Company
otherwise than through [if applicable,--mandatory] sinking fund payments may be
credited against subsequent [if applicable,--mandatory] sinking fund payments
otherwise required to be made [if applicable,--in the inverse order in which
they become due].]
19
<PAGE> 26
[If the Security is subject to redemption in part of any kind,
insert--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 applicable, insert--The Securities of this series are not
redeemable prior to Stated Maturity.]
[If the Security is not an Original Issue Discount Security, insert--If
an Event of Default with respect to 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.]
[If the Security is an Original Issue Discount Security, insert--If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to--insert formula for determining the
amount. Upon payment (1) of the amount of principal so declared due and payable,
and (2) of interest on any overdue principal and overdue interest, all of the
Company's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of not less than the Holders of a majority in aggregate principal amount
of the Outstanding Securities of all series to be affected (voting as one
class). The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Outstanding Securities of all
affected series (voting as one class), on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture. The Indenture permits, with certain exceptions as
therein provided, the Holders of a majority in principal amount of Securities of
any series then Outstanding to waive past defaults under the Indenture with
respect to such series 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.
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
20
<PAGE> 27
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 Company, 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.
[If a Global Security, insert--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 thereof for
any purpose under the Indenture.]
[If a Definitive Security, insert--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 Company in [if
applicable, insert -- any place where the principal of and any premium and
interest on this Security are payable] [if applicable, insert-- The City of New
York [, or, subject to any laws or regulations applicable thereto and to the
right of the Company (limited as provided in the Indenture) to rescind the
designation of any such transfer agent, at the [main] offices of in
and in or at such other offices or agencies as the Company may designate]],
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company 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 the same aggregate principal amount, will be issued to the
designated transferee or transferees.]
The Securities of this series are issuable only in registered form
without coupons in denominations of U.S.$ [state other currency] and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, 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 Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
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<PAGE> 28
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Obligations of the Company under the Indenture and the Securities
thereunder, including this Security, are non-recourse to Lakehead Pipe Line
Company, Inc. (the "General Partner") and Lakehead Pipe Line Partners, L.P.
("Lakehead") and their respective Affiliates (other than the Company), and
payable only out of cash flow and assets of the Company. 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 nor its assets nor Lakehead
nor its assets (nor any of their respective Affiliates other than the Company,
nor their respective assets) shall be liable for any of the obligations of the
Company under the Indenture or such Securities, including this Security, and (2)
no director, officer, employee, stockholder or unitholder, as such, of the
Company, the Trustee, the General Partner, Lakehead or any Affiliate of any of
the foregoing entities shall have any personal liability in respect of the
obligations of the Company under the Indenture or such Securities by reason of
his, her or its status. Notwithstanding the foregoing, nothing in this paragraph
shall be construed to modify or supersede any obligation of Lakehead or the
General Partner to restore any negative balance in their respective capital
accounts (maintained by the Company pursuant to the Company's Amended and
Restated Agreement of Limited Partnership) upon liquidation of their respective
interests in the Company.
The Indenture contains provisions that relieve the Company from the
obligation to comply with certain restrictive covenants in the Indenture and for
satisfaction and discharge at any time of the entire indebtedness upon
compliance by the Company with certain conditions set forth in the Indenture.
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.
[If a Definitive Security, insert as a separate page--
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 LAKEHEAD PIPE
LINE COMPANY, LIMITED PARTNERSHIP and does hereby irrevocably constitute and
appoint ________________________ Attorney to transfer said instrument on the
books of the within-named Company, with full power of substitution in the
premises.
Please Insert Social Security or
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Other Identifying Number of Assignee:
- ------------------------------- -----------------------------------------
Dated: (Signature)
-------------------------------------- ----------------------
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.]
SECTION 204. Global Securities.
Every Global Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
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.
If Securities of a series are issuable in whole or in part in the form
of one or more Global Securities, as specified as contemplated by Section 301,
then, notwithstanding Clause (10) of Section 301 and the provisions of Section
302, any Global Security shall represent such of the Outstanding Securities of
such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced or increased, as the case
may be, to reflect exchanges. Any endorsement of a Global Security to reflect
the amount, or any reduction or increase in the amount, of Outstanding
Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
a Company Order. Subject to the provisions of Sections 303, 304 and 305, the
Trustee shall deliver and redeliver any Global Security in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Global Security shall be
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in a Company Order (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel).
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Global Security if such Security was never issued and
sold by the Company and the Company delivers to the Trustee the Global Security
together with a Company Order (which need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel) with regard to the reduction or
increase, as the case may be, in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
SECTION 205. Form of Trustee's Certificate and Authorization.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
As Trustee
By:
---------------------------
Authorized Officer
ARTICLE III
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the form and title of the Securities of the series (which
shall distinguish the Securities of the series from Securities of any other
series);
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(2) any limit upon the aggregate principal amount of the
Securities of the series which 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 the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest;
(4) the date or dates on which the Securities will be issued
and on which the principal of, and premium, if any, on the Securities of the
series is payable or the method of determination thereof;
(5) the rate or rates (which may be fixed or variable) at
which the Securities of the series shall bear interest, if any, or the method of
determination thereof, the date or dates from which such interest shall accrue,
or the method of determination thereof, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date for any interest
payable on any Interest Payment Date;
(6) the dates on which interest, if any, shall be payable and
the record dates for the Interest Payment Dates;
(7) the place or places where, subject to the provisions of
Section 1002, the principal of and any premium and interest on Securities of the
series shall be payable, Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange and notices, and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(8) the period or periods, if any, 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 Company or otherwise;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event 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) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series shall be
issuable;
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(11) whether payment of principal of and premium, if any, and
interest, if any, on the Securities of the series shall be without deduction for
taxes, assessments or governmental charges paid by Holders of the series;
(12) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any Securities of
the series shall be denominated, payable, redeemable or purchasable if other
than the currency of the United States of America and the manner of determining
the equivalent thereof in the currency of the United States of America for
purposes of the definition of "Outstanding" in Section 101;
(13) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined with reference to
an index, the manner in which such amounts shall be determined;
(14) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency, currencies
or currency units in which payment of the principal of and any premium and
interest on Securities of such series as to which such election is made shall be
payable, and the periods within which and the terms and conditions upon which
such election is to be made;
(15) the right, if any, of the Company to defer payments of
interest by extending the interest payment periods and specify the duration of
such extension, the Interest Payment Dates on which such interest shall be
payable and whether and under what circumstances additional interest on amounts
deferred shall be payable;
(16) 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 502 or
the method of determination thereof;
(17) if and as applicable, that the Securities of the series
shall be issuable in whole or in part in the form of one or more Global
Securities (and whether in temporary or permanent global form) and, in such
case, the Depositary or Depositaries for such Global Security or Global
Securities and any circumstances other than those set forth in Section 305 in
which any such Global Security may be transferred to, and registered and
exchanged for Securities registered in the name of, a Person other than the
Depositary for such Global Security or a nominee thereof and in which any such
transfer may be registered;
(18) any deletions from, modifications of or additions to the
Events of Default set forth in Section 501 or the covenants of the Company set
forth in Article X pertaining to the Securities of the series;
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(19) if and the terms and conditions upon which any Securities
of the series may be converted into or exchanged for securities, which may
include, without limitation, capital stock, of any class or series of the
Company or any other issuer;
(20) if other than as provided in Sections 1302 and 1303, the
terms and conditions upon which and the manner in which such series of
Securities may be defeased or discharged;
(21) if other than the Trustee, the identity of the Security
Registrar and any Paying Agent;
(22) any restrictions or other provisions with respect to the
transfer or exchange of the Securities; and
(23) any other terms of the Securities of the series (which
terms shall not be inconsistent with the provisions of this Indenture, except as
permitted by Section 901(4)).
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 the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for increases in the aggregate principal amount of such series of
Securities and issuances of additional Securities of such series or for the
establishment of additional terms with respect to the Securities of such series.
If any of the terms of the series are established by action taken by or
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by an authorized officer or other authorized person of the
General Partner on behalf of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting forth, or providing
the manner for determining, the terms of the series.
With respect to Securities of a series subject to a Periodic Offering,
such Board Resolution or Officers' Certificate may provide general terms for
Securities of such series and provide either that the specific terms of
particular Securities of such series shall be specified in a Company Order, or
that such terms shall be determined by the Company, or one or more of the
Company's agents designated in an Officers' Certificate, in accordance with a
Company Order.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such
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<PAGE> 34
specified denomination with respect to the Securities of any series, the
Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by the
Chairman of the Board, Chief Executive Officer, Chief Financial Officer,
President, Chief Accountant or any Vice President of the General Partner and
need not be attested. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the General Partner shall bind the
Company, 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.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities; provided, however, that in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, thereafter promptly confirmed in
writing) acceptable to the Trustee as may be specified by or pursuant to a
Company Order delivered to the Trustee prior to the time of the first
authentication of Securities of such series. If the form or terms of the
Securities of the series have been established in or pursuant to one or more
Board Resolutions as permitted by Sections 201 and 301, 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 601) shall be fully protected in relying upon, an Opinion
of Counsel stating,
(1) if the form or forms of such Securities have been
established by or pursuant to Board Resolution as permitted by Section 201,
that such form or forms have been established in conformity with the provisions
of this Indenture;
(2) if the terms of such Securities have been, or in the case
of Securities of a series offered in a Periodic Offering, will be, established
by or pursuant to a Board Resolution as permitted by Section 301, that such
terms have been, or in the case of Securities of a series offered in a Periodic
Offering, will be, established in conformity with the provisions of this
Indenture, subject, in the case of Securities of a series offered in a Periodic
Offering, to any conditions specified in such Opinion of Counsel; and
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<PAGE> 35
(3) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
If such form or forms or terms have been so established, 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 which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any of such
Securities, the form or forms and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and the
other documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309 for all purposes of this Indenture, such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of Definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the Definitive Securities in lieu of which they
are issued
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and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as evidenced
by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause Definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of Definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for Definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company maintained pursuant to Section
1002 for the purpose of exchanges of Securities of such series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more Definitive Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount and tenor. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as Definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency of the
Company in The City of New York a register (the register maintained in such
office or in any other office or agency of the Company in a Place of Payment
being herein sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Company shall, prior to the issuance of any Securities hereunder, appoint the
Trustee as the initial "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided and its corporate
trust office which, at the date hereof, is located at 450 West 33rd Street,
15th Floor, New York, New York 10001-2697, as the initial office or agency in
The City of New York where the Security Register will be maintained. The
Company may at any time replace such Security Registrar, change such office or
agency or act as its own Security Registrar. The Company will give prompt
written notice to the Trustee of any change of the Security Registrar or of the
location of such office or agency.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company maintained pursuant to Section
1002 for such purpose, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series (except a Global
Security) may be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
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All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304 or 1107 not involving any transfer.
Neither the Trustee nor the Company shall be required (1) to issue,
register the transfer of or exchange Securities of any series (or of any series
and specified tenor, as the case may be) during a period beginning at the
opening of business 15 days before the day of mailing of a notice of redemption
of Securities of that series selected for redemption under Section 1103 and
ending at the close of business on the day of such mailing, or (2) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding any other provision in this Indenture and except as
otherwise specified as contemplated by Section 301, no Global Security may be
transferred to, or registered or exchanged for Securities registered in the
name of, any Person other than the Depositary for such Global Security or any
nominee thereof, and no such transfer may be registered, except as provided in
this paragraph. Every Security authenticated and delivered upon registration or
transfer of, or in exchange for or in lieu of, a Global Security shall be a
Global Security, except as provided in this paragraph. If (1) (A) the
Depositary for a Global Security notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Security or ceases to be a
clearing agency registered under the Exchange Act, and (B) a successor
Depositary is not appointed by the Company within 90 days, (2) an Event of
Default has occurred and is continuing with respect to the Securities of such
series and the Security Registrar has received a request from the Depositary to
issue certificated securities in lieu of all or a portion of the Global
Securities of such series (in which case the Company shall deliver certificated
securities within 30 days of such request) or (3) the Company determines in its
sole discretion that Securities of a series issued in global form shall no
longer be represented by a Global Security, then such Global Security may be
exchanged by such Depositary for Definitive Securities of the same series, of
any authorized denomination and of a like aggregate principal amount and tenor,
registered in the names of, and the transfer of such Global Security or portion
thereof may be registered to, such Persons as such Depositary shall direct.
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SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, together with
such security or indemnity as may be required by the Company or the Trustee to
save each of them and any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (1)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (2) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding. If, after the
delivery of such new Security, a bona fide purchaser of the original Security
in lieu of which such new Security was issued presents for payment or
registration such original Security, the Trustee shall be entitled to recover
such new Security from the party to whom it was delivered or any party taking
therefrom, except a bona fide purchaser, and shall be entitled to recover upon
the security or indemnity provided therefor to the extent of any loss, damage,
cost or expense incurred by the Company and the Trustee in connection
therewith.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
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.
Every new Security of any series issued pursuant to this Section in exchange
for any mutilated Security or in lieu of any destroyed, lost or stolen Security
shall constitute an original additional contractual obligation of the Company,
whether or not the mutilated, destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (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 Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Security of
such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, 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 Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following Clause
(2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange or automated quotation system on
which such Securities may be listed or traded, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment shall
be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security, shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
For each series of Securities, the Company shall, prior to 10:00 a.m.
(New York City time) on each payment date for principal and premium, if any,
and interest, if any, deposit with the Trustee money in immediately available
funds sufficient to make cash payments due on the applicable payment date.
SECTION 308. Persons Deemed Owners.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security is registered
as the owner of such Security for the purpose of receiving payment of principal
of and any premium and (subject to Sections 305 and 307) any interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the owner
of such Global Security for all purposes whatsoever. None of the Company, the
Trustee nor any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of in accordance with its
customary procedures, and the Trustee shall thereafter deliver to the Company a
certificate with respect to such disposition.
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SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months and interest on
the Securities of each series for any partial period shall be computed on the
basis of a 360-day year of twelve 30-day months and the number of days elapsed
in any partial month.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (in
addition to the other identification numbers printed on the Securities), and,
if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such "CUSIP" numbers either
as printed on the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Securities, and any such redemption shall not be affected by any defect in
or omission of such "CUSIP" numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of any series (except as to any surviving
rights of registration of transfer or exchange of such Securities herein
expressly provided for), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to such Securities, when
(1) either
(A) all such Securities theretofore authenticated and
delivered (other than (i) such Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 306, and
(ii) such Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable,
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(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
and the Company in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
for this purpose an amount of money in the currency or currency units in which
such Securities are payable sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to such Securities; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to Securities of any series, (x) the obligations of the Company to the
Trustee under Section 607, the obligations of the Trustee to any Authenticating
Agent under Section 614 and the right of the Trustee to resign under Section
610 shall survive, and (y) if money shall have been deposited with the Trustee
pursuant to subclause (B) of Clause (1) of this Section, the obligations of the
Company and/or the Trustee under Sections 402, 606, 701 and 1002 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium
and interest for whose payment such money has been deposited with the Trustee.
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ARTICLE V
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(3) default in the performance, or breach, of any term,
covenant or warranty of the Company in this Indenture (other than a term,
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of Securities other
than that series), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of that 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; or
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case, (B) consents to the entry of any
order for relief against it in an involuntary case, (C) consents to the
appointment of a Custodian of it or for all or substantially all of its
property, or (D) makes a general assignment for the benefit of its creditors;
or
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (A) is for relief against the Company in
an involuntary case, (B) appoints a Custodian of the Company or for all or
substantially all of its property, or (C) orders the liquidation of the
Company; and the order or decree remains unstayed and in effect for 90 days; or
(6) any other Event of Default provided as contemplated by
Section 301 with respect to Securities of that series.
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SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of, and accrued but unpaid interest, if any, on all of the Securities
of that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates prescribed therefor
in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that
series which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company or any
other obligor upon the Securities, their property or their creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee
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any amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such 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 the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money or property collected or to be applied by the Trustee
pursuant to this Article shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money or
property on account of principal or any premium or interest, upon presentation
of the Securities and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities 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; and
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
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(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of security or indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Sections
305 and 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
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SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series; provided, however, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction; and
(3) subject to the provisions of Section 601, the Trustee
shall have the right to decline to follow any such direction if the Trustee in
good faith shall determine that the proceeding so directed would involve the
Trustee in personal liability or would otherwise be contrary to applicable law.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except
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(1) a continuing default in the payment of the principal of
or any premium or interest on any Security of such series, or
(2) a default in respect of a covenant or provision hereof
which under Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided, however, that neither this Section nor the
Trust Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company. This Section does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 607 or a suit by Holders of more than 10% in
principal amount of the Securities (taken as a whole).
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE VI
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or security or indemnity satisfactory to
it against such risk or liability is not reasonably assured
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to it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a Default occurs and is continuing with respect to the Securities
of any series, the Trustee shall, within 90 days after it occurs, transmit, in
the manner and to the extent provided in Section 313(c) of the Trust Indenture
Act, notice of all uncured or unwaived Defaults known to it; provided, however,
that, except in the case of a Default in payment on the Securities of any
series, the Trustee may withhold the notice if it determines in good faith that
withholding such notice is in the interests of Holders of Securities of such
series; provided, further, however, that, in the case of any default or breach
of the character specified in Section 501(3) with respect to the Securities of
such series, no such notice to Holders shall be given until at least 60 days
after the occurrence thereof.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely on and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(2) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Company Request or
Company Order (other than delivery of any Security to the Trustee for
authentication and delivery pursuant to Section 303, which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Directors shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(4) 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, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory
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to it against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may, without obligation to do so, make such
further inquiry or investigation into such facts or matters as it may see fit;
(7) 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; and
(8) the Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized
to sign an Officers' Certificate, including any person specified as so
authorized in any such certificate previously delivered and not superseded.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. Neither the Trustee nor any
Authenticating Agent makes any representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
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SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee and to pay or reimburse the Trustee for 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.
Without limiting any rights available to the Trustee under applicable
law, when the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(4) or Section 501(5), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of
administration under any applicable Bankruptcy Law.
The provisions of this Section shall survive the satisfaction and
discharge of this Indenture and the defeasance of the Securities.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one or more Trustees hereunder with
respect to the Securities of each series, at least one of which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus required by the Trust Indenture Act. If such
Person publishes reports of condition at least annually, pursuant to law or to
the requirements of a supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving 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 the Securities of such series.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (A) the Company, acting
pursuant to the authority of a Board Resolution, may remove the Trustee with
respect to all Securities, or (B) subject to Section 514, any Holder who has
been a bona fide Holder of a Security for at least six
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months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the manner provided in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(1) 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 Company 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 Company 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.
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(2) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, 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 (A) 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, (B) if the retiring Trustee is not retiring with
respect to all Securities, 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 (C) 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 as co-trustees of the same trust and 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 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 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 Company or any successor Trustee, such retiring Trustee shall, upon payment
of its charges, duly assign, transfer and deliver to such successor Trustee all
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.
(3) Upon request of any such successor Trustee, the Company
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 (1) or (2) of this Section, as the case may be.
(4) 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.
SECTION 612. 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 all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by
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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 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee (upon notice to the Company) may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue (in accordance with procedures acceptable to
the Trustee) and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, 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. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of such Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the execution or filing of
any paper or any further act on the part of the Trustee or such Authenticating
Agent.
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An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
Except with respect to an Authenticating Agent appointed at the
request of the Company, the Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section,
and the Trustee shall be entitled to be reimbursed by the Company for such
payments, subject to the provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
As Trustee
By:
------------------------------------------
As Authenticating Agent
By:
------------------------------------------
Authorized Officer
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than May 15 and November 15 in
each year, a list for each series of Securities, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Securities
of such series as of the preceding April 30 or October 31, as the case may be,
and
(2) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company 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 if and so long as the Trustee shall be the Security
Registrar for Securities of a series, no such list need be furnished with
respect to such series of Securities.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than July 15 in each calendar year
with respect to the 12-month period ending on the previous May 15, commencing
May 15, 1999.
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A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such portions
of any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company is not required to file information, documents or reports pursuant
to either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and (2)
of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not 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:
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(1) (A) in the case of a merger, the Company is the surviving
entity, or (B) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by sale or transfer, or which
leases, the properties and assets of the Company as, or substantially as, an
entirety shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form reasonably satisfactory to the Trustee,
the due and punctual payment of the principal of and any premium and interest
on all the Securities and the performance or observance of every covenant and
condition of this Indenture on the part of the Company to be performed or
observed;
(2) the surviving entity or successor Person is a Person
organized and existing under the laws of the U.S., any State thereof or the
District of Columbia;
(3) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, transfer or lease and the supplemental indenture required in
connection with such transaction 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 Company with, or merger of the Company
into, any other Person or any sale, transfer or lease of the properties and
assets of the Company as, or substantially as, an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which
the Company is merged or to which such sale, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named originally as the Company herein, 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.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities, the Company and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to secure any of such Securities;
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(2) to evidence the succession of another Person to the
Company under this Indenture and the Securities and the assumption by such
successor Person of the obligations of the Company hereunder;
(3) to add covenants and Events of Default for the benefit of
the Holders of all or any series of such Securities or to surrender any right
or power conferred by this Indenture upon the Company;
(4) to add to, change or eliminate any of the provisions of
this Indenture, provided that any such addition, change or elimination shall
become effective only after there are no such Securities of any series entitled
to the benefit of such provision outstanding;
(5) to establish the forms or terms of the Securities of any
series issued thereunder;
(6) to cure any ambiguity or correct any inconsistency in
this Indenture;
(7) to evidence the acceptance of appointment by a successor
Trustee;
(8) to qualify this Indenture under the Trust Indenture Act;
(9) to provide for uncertificated securities in addition to
certificated securities;
(10) to supplement any provisions of this Indenture necessary
to permit or facilitate the defeasance and discharge of any series of
Securities, provided that such action does not adversely affect the interests
of the Holders of Securities of such series or any other series; and
(11) to comply with the rules or regulations of any
securities exchange or automated quotation system on which any of the
Securities may be listed or traded.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of all Outstanding Securities affected by such
supplemental indenture (voting as one class), the Company and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture, or modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided that the
Company and the Trustee may not, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest, if any, on, any Security, or reduce
the principal amount thereof or premium, if any, on or the rate of interest
thereon or alter the method of computation of interest;
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(2) reduce the percentage in principal amount of Securities
required for any such supplemental indenture or for any waiver provided for in
this Indenture;
(3) change the Company's obligation to maintain an office or
agency for payment of Securities and the other matters specified herein;
(4) impair the right to institute suit for the enforcement of
any payment of principal of, premium, if any, or interest on, any Security; or
(5) modify any of the provisions of this Indenture relating
to the execution of supplemental indentures with the consent of Holders of
Securities which are discussed in this Section or modify any provisions
relating to the waiver by Holders of Securities of past defaults and certain
covenants, except to increase any required percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Officers' Certificate and an Opinion of Counsel stating that the execution
of such supplemental indenture is authorized or permitted by this Indenture.
The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
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SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency 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 Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The
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Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Except as otherwise specified with respect to a series of Securities
as contemplated by Section 301, the Company hereby initially designates as the
Place of Payment for each series of Securities The City and State of New York,
and initially appoints the Trustee at its Corporate Trust Office as the
Company's office or agency for each such purpose in such city.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) hold all sums held by it for
the payment of the principal of (and premium, if any) or interest, if any, on
Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided; (2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest, if any, on the
Securities of that series; and (3) during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
held in trust by such Paying Agent for payment in respect of the Securities of
that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company 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.
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Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper
in each Place of Payment with respect to such series, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 150 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signer thereof
the Company is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 1005. Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if it
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company.
SECTION 1006. Limitations on Liens.
The Company will not, nor will it permit any Restricted Subsidiary to,
create, assume, incur or suffer to exist any Lien upon any Principal Property,
or upon any shares of capital stock of any Restricted Subsidiary, whether owned
or leased on the date of this Indenture or thereafter acquired, to secure any
Debt of the Company or any other Person (other than the Securities issued
hereunder), without in any such case making effective provision whereby all of
the Securities Outstanding hereunder shall be secured equally and ratably with,
or prior to, such Debt so long as such Debt shall be so secured. This
restriction shall not apply to:
(1) any Lien upon any property or assets of the Company or
any Restricted Subsidiary in existence on the Issue Date or created pursuant to
an "after-acquired property" clause
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or similar term in existence on the Issue Date or any mortgage, pledge
agreement, security agreement or other similar instrument in existence on the
Issue Date;
(2) any Lien upon any property or assets created at the time
of acquisition of such property or assets by the Company or any Restricted
Subsidiary or within one year after such time to secure all or a portion of the
purchase price for such property or assets or Debt incurred to finance such
purchase price, whether such Debt was incurred prior to, at the time of or
within one year of such acquisition;
(3) any Lien upon any property or assets existing thereon at
the time of the acquisition thereof by the Company or any Restricted Subsidiary
(whether or not the obligations secured thereby are assumed by the Company or
any Restricted Subsidiary); provided, however, that such Lien only encumbers
the property or assets so acquired;
(4) any Lien upon any property or assets of a Person existing
thereon at the time such Person becomes a Restricted Subsidiary by acquisition,
merger or otherwise; provided, however, that such Lien only encumbers the
property or assets of such Person at the time such Person becomes a Restricted
Subsidiary;
(5) the assumption by the Company or any Restricted
Subsidiary of obligations secured by any Lien existing at the time of the
acquisition by the Company or any Restricted Subsidiary of the property or
assets subject to such Lien or at the time of the acquisition of the Person
which owns such property or assets;
(6) any Lien upon any property or assets to secure all or
part of the cost of construction, development, repair or improvements thereon
or to secure Debt incurred prior to, at the time of, or within one year after
completion of such construction, development, repair or improvements or the
commencement of full operations thereof (whichever is later), to provide funds
for any such purpose;
(7) any Lien in favor of the Company or any Restricted
Subsidiary;
(8) any Lien created or assumed by the Company or any
Restricted Subsidiary in connection with the issuance of Debt the interest on
which is excludable from gross income of the holder of such Debt pursuant to
the Internal Revenue Code of 1986, as amended, or any successor statute, for
the purpose of financing, in whole or in part, the acquisition or construction
of property or assets to be used by the Company or any Subsidiary;
(9) Permitted Liens;
(10)any Lien upon any additions, improvements, replacements,
repairs, fixtures, appurtenances or component parts thereof attaching to or
required to be attached to property or assets pursuant to the terms of any
mortgage, pledge agreement, security agreement or other similar
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instrument, creating a Lien upon such property or assets permitted by Clauses
(1) through (9), inclusive, of this Section; or
(11) any extension, renewal, refinancing, refunding or
replacement (or successive extensions, renewals, refinancing, refundings or
replacements) of any Lien, in whole or in part, that is referred to in Clauses
(1) through (10), inclusive, of this Section, or of any Debt secured thereby;
provided, however, that the principal amount of Debt secured thereby shall not
exceed the greater of (A) the principal amount of Debt so secured at the time
of such extension, renewal, refinancing, refunding or replacement (plus the
aggregate amount of premiums, other payments, costs and expenses required to be
paid or incurred in connection with such extension, renewal, refinancing,
refunding or replacement) and (B) the maximum committed principal amount of
Debt so secured at such time; provided, further, however, that such extension,
renewal, refinancing, refunding or replacement shall be limited to all or a
part of the property (including improvements, alterations and repairs on such
property) subject to the encumbrance so extended, renewed, refinanced, refunded
or replaced (plus improvements, alterations and repairs on such property).
Notwithstanding the foregoing provisions of this Section, the Company
may, and may permit any Restricted Subsidiary to, create, assume, incur or
suffer to exist any Lien upon any Principal Property to secure Debt of the
Company or any Person (other than the Securities) that is not excepted by
Clauses (1) through (11), inclusive, of this Section without securing the
Securities issued hereunder, provided that the aggregate principal amount of
all Debt then outstanding secured by such Lien and all similar Liens, together
with all net sale proceeds from Sale-Leaseback Transactions (excluding
Sale-Leaseback Transactions permitted by Clauses (1) through (4), inclusive, of
Section 1007), does not exceed 10% of Consolidated Net Tangible Assets.
SECTION 1007. Restriction of Sale-Leaseback Transaction.
The Company will not, nor will it permit any Restricted Subsidiary to,
engage in a Sale- Leaseback Transaction, unless:
(1) such Sale-Leaseback Transaction occurs within one year
from the date of acquisition of the Principal Property subject thereto or the
date of the completion of construction or commencement of full operations on
such Principal Property, whichever is later;
(2) the Sale-Leaseback Transaction involves a lease for a
period, including renewals, of not more than three years;
(3) the Company or such Restricted Subsidiary would be
entitled to incur Debt secured by a Lien on the Principal Property subject
thereto in a principal amount equal to or exceeding the net sale proceeds from
such Sale-Leaseback Transaction without equally and ratably securing the
Securities; or
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(4) the Company or such Restricted Subsidiary, within a
one-year period after such Sale-Leaseback Transaction, applies or causes to be
applied an amount not less than the net sale proceeds from such Sale-Leaseback
Transaction to (A) the prepayment, repayment, redemption or retirement of
Funded Debt of the Company or any Subsidiary, or (B) investment in another
Principal Property.
Notwithstanding the foregoing provisions of this Section, the Company
may, and may permit any Restricted Subsidiary to, effect any Sale-Leaseback
Transaction that is not excepted by Clauses (1) through (4), inclusive, of this
Section, provided that the net sale proceeds from such Sale-Leaseback
Transaction, together with the aggregate principal amount of then outstanding
Debt (other than the Securities) secured by Liens upon Principal Properties not
excepted by Clauses (1) through (11), inclusive, of Section 1006, do not exceed
10% of the Consolidated Net Tangible Assets.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 1005, 1006 or 1007 with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in aggregate principal amount of the
Outstanding Securities of all affected series (voting as one class) shall, by
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
A waiver which changes or eliminates any term, provision or condition
of this Indenture which has expressly been included solely for the benefit of
one or more particular series of Securities, or which modifies the rights of
the Holders of Securities of such series with respect to such term, provision
or condition, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
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SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall,
not less than 30 nor more than 60 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of
the Securities to be redeemed. In the case of any redemption of Securities (1)
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, or (2) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 45 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by lottery for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail (if
international mail, by air mail), postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date, to each Holder of Securities to
be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
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(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
and of a specified tenor are to be redeemed, the identification (and, in the
case of partial redemption of any Securities, the principal amounts) of the
particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company. If the Company requests the Trustee to provide notice
of redemption to the Holders, the Company will make such request five days
prior to the date on which notice of redemption is to be given.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 301, installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 307.
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If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 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 1202. 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 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company 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
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specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 and stating the basis for such credit and that such Securities
have not been previously so credited, and will also 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 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE XIII
DEFEASANCE
SECTION 1301. Applicability of Article.
The provisions of this Article shall be applicable to each series of
Securities except as otherwise specified as contemplated by Section 301 for
Securities of such series.
SECTION 1302. Legal Defeasance.
In addition to discharge of the Indenture pursuant to Section 401, the
Company shall be deemed to have paid and discharged the entire indebtedness on
all the Securities of such a series on the 91st day after the date of the
deposit referred to in Clause (1) below, and the provisions of this Indenture
with respect to the Securities of such series shall no longer be in effect
(except as to (i) rights of registration of transfer and exchange of Securities
of such series and the Company's right of optional redemption, if any, (ii)
substitution of mutilated, destroyed, lost or stolen Securities, (iii) rights
of holders of Securities to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor or on the specified
redemption dates therefor (but not upon acceleration), and remaining rights of
the holders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations, duties and immunities of the Trustee hereunder, and the
Company's obligations in connection therewith (including, but not limited to,
Section 607) (v) the rights, if any, to convert or exchange the Securities of
such series, (vi) the rights of the holders of Securities of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable
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to all or any of them, and (vii) the obligations of the Company under Section
1002), and the Trustee, at the expense of the Company, shall, upon a Company
Request, execute proper instruments acknowledging the same, if the conditions
set forth below are satisfied (hereinafter, "defeasance"):
(1) The Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust, for the purposes of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of such series (A) cash
in an amount, or (B) in the case of any series of Securities the payments on
which may only be made in legal coin or currency of the United States, U.S.
Government Obligations, maturing as to principal and interest at such times and
in such amounts as will insure the availability of cash, or (C) a combination
thereof, certified to be 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 (i) the principal and interest and
premium, if any, on all Securities of such series on each date that such
principal, interest or premium, if any, is due and payable or on any Redemption
Date established pursuant to Clause (3) below, and (ii) any mandatory sinking
fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such series;
(2) The Company has delivered to the Trustee an Opinion of
Counsel based on the fact that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or (B) since the date
hereof, there has been a change in the applicable federal income tax law, in
either case to the effect that, and such opinion shall confirm that, the
Holders of the Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to federal income tax on the same amount and
in the same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred;
(3) If the Securities are to be redeemed prior to Stated
Maturity (other than from mandatory sinking fund payments or analogous
payments), notice of such redemption shall have been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee shall have
been made;
(4) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(5) Such defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming
all Securities are in default within the meaning of such Act);
(6) Such defeasance shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument to which
the Company is a party or by which it is bound;
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(7) Such defeasance shall not result in the trust arising
from such deposit constituting an investment company within the meaning of the
Investment Company Act of 1940, as amended, unless such trust shall be
registered under such Act or exempt from registration thereunder; and
(8) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
provision have been complied with.
For this purpose, such defeasance means that the Company and any other obligor
upon the Securities of such series shall be deemed to have paid and discharged
the entire debt represented by the Securities of such series, which shall
thereafter be deemed to be "Outstanding" only for the purposes of Section 1304
and the rights and obligations referred to in Clauses (i) through (viii),
inclusive, of the first paragraph of this Section, and to have satisfied all
its other obligations under the Securities of such series and this Indenture
insofar as the Securities of such series are concerned.
SECTION 1303. Covenant Defeasance.
The Company and any other obligor, if any, shall be released on the
91st day after the date of the deposit referred to in Clause (1) below from its
obligations under Sections 704, 801, 1005, 1006 and 1007 with respect to the
Securities of any series on and after the date the conditions set forth below
are satisfied (hereinafter, "covenant defeasance"), and the Securities of such
series shall thereafter be deemed to be not "Outstanding" for the purposes of
any request, demand, authorization, direction, notice, waiver, consent or
declaration or other action or Act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
Outstanding for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the Securities of such series, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section, whether directly
or indirectly by reason of any reference elsewhere herein to such Section or by
reason of any reference in such Section to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under Section 501, but, except as specified above, the
remainder of this Indenture and the Securities of such series shall be
unaffected thereby. The following shall be the conditions to application of
this Section 1303:
(1) The Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of such series, (A)
cash in an amount, or (B) in the case of any series of Securities the payments
on which may only be made in legal coin or currency of the United States, U.S.
Government Obligations, maturing as to principal and interest at such times and
in such amounts as will insure the availability of cash, or (C) 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 (i) the principal and interest and premium, if
any, on all Securities of such series on each date that such
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principal, interest or premium, if any, is due and payable or on any Redemption
Date established pursuant to Clause (2) below, and (ii) any mandatory sinking
fund payments on the day on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such series;
(2) If the Securities are to be redeemed prior to Stated
Maturity (other than from mandatory sinking fund payments or analogous
payments), notice of such redemption shall have been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee shall have
been made;
(3) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(4) The Company has delivered to the Trustee an Opinion of
Counsel which shall confirm that the Holders of the Securities of such series
will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit and covenant defeasance and will be subject to federal
income tax on the same amount and in the same manner and at the same time as
would have been the case if such deposit and covenant defeasance had not
occurred;
(5) Such covenant defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act);
(6) Such covenant defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or instrument
to which the Company is a party or by which it is bound;
(7) Such covenant defeasance shall not result in the trust
arising from such deposit constituting an investment company within the meaning
of the Investment Company Act of 1940, as amended, unless such trust shall be
registered under such Act or exempt from registration thereunder; and
(8) The Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent provided for relating to the
covenant defeasance contemplated by this provision have been complied with.
SECTION 1304. Application by Trustee of Funds Deposited for Payment
of Securities.
Subject to the provisions of the last paragraph of Section 1003, all
moneys or U.S. Government Obligations deposited with the Trustee pursuant to
Section 1302 or 1303 (and all funds earned on such moneys or U.S. Government
Obligations) shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent), to the Holders of the particular Securities of such series for
the payment or
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redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such money
need not be segregated from other funds except to the extent required by law.
Subject to Sections 1302 and 1303, the Trustee shall promptly pay to the
Company upon request any excess moneys held by it at any time.
SECTION 1305. Repayment to Company.
The Trustee and any Paying Agent promptly shall pay or return to the
Company upon Company Request any money and U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of and
any interest on the Securities of any series for which money or U.S. Government
Obligations have been deposited pursuant to Section 1302 or 1303.
The provisions of the last paragraph of Section 1003 shall apply to
any money held by the Trustee or any Paying Agent under this Article that
remains unclaimed for two years after the Maturity of any series of Securities
for which money or U.S. Government Obligations have been deposited pursuant to
Section 1302 or 1303.
This instrument may be executed with counterpart signature pages or in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP
By: Lakehead Pipe Line Company, Inc.,
Its General Partner
By: /s/ MARK A MAKI
------------------------------------------
Name: Mark A. Maki
Title: Chief Accountant
THE CHASE MANHATTAN BANK
By: /s/ VALERIE DUNBAR
------------------------------------------
Name: Valerie Dunbar
Title: Authorized Officer
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EXHIBIT 4.2
================================================================================
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP
ISSUER
AND
THE CHASE MANHATTAN BANK
TRUSTEE
------------------
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF SEPTEMBER 15, 1998
------------------
7% SENIOR NOTES DUE 2018
------------------
================================================================================
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE, dated as of September 15, 1998 (herein
called the "First Supplemental Indenture"), between LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP, a Delaware limited partnership (herein called the
"Company"), having its principal office at Lake Superior Place, 21 West Superior
Street, Duluth, Minnesota 55802 and THE CHASE MANHATTAN BANK, a banking
corporation duly organized and existing under the laws of the State of New York,
as trustee under the Indenture referred to below (herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the
Trustee the Indenture, dated as of September 15, 1998 (herein called the
"Indenture"), providing for the issuance from time to time of one or more series
of the Company's unsecured senior debentures, notes or other evidences of
indebtedness (herein called the "Securities"); and
WHEREAS, Section 301 of the Indenture provides that various matters
with respect to any series of Securities issued under the Indenture may be
established in an indenture supplemental to the Indenture; and
WHEREAS, Section 901(4) of the Indenture provides that the Company and
the Trustee may enter into indentures supplemental to the Indenture for the
purpose of establishing the form or terms of the Securities of any series as
permitted in Sections 201 and 301 of the Indenture; and
WHEREAS, the Company desires to create a series of the Securities in an
aggregate principal amount of up to $100,000,000, which series shall be
designated the 7% Senior Notes Due 2018 (the "Notes"), and all action on the
part of the Company necessary to authorize the issuance of the Notes under the
Indenture and this First Supplemental Indenture has been duly taken; and
WHEREAS, all acts and things necessary to make the Notes, when executed
by the Company and completed, authenticated and delivered by the Trustee as
provided in the Indenture and this First Supplemental Indenture, the valid and
binding obligations of the Company 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,
the Company covenants and agrees with the Trustee, for the equal and
proportionate benefit of all holders of the Notes, as follows:
ARTICLE I
Relation to Indenture; Definitions
SECTION 1.01 This First Supplemental Indenture constitutes an integral
part of the Indenture.
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SECTION 1.02 For all purposes of this First Supplemental Indenture:
(1) Capitalized terms used herein shall have the
meanings specified herein or in the Indenture, as the case may be;
(2) "Make-Whole Premium" means, in connection with
any optional redemption of any Note, the excess, if any, of (i) the
aggregate present value as of the date of such redemption of each
dollar of principal of such Note being redeemed and the amount of
interest (exclusive of interest accrued to the date of redemption) that
would have been payable in respect of such dollar if such redemption
had not been made, determined by discounting, on a semiannual basis,
such principal and interest at a rate equal to the sum of the Treasury
Yield (determined on the Business Day immediately preceding the date of
such redemption) plus 0.25% from the respective dates on which such
principal and interest would have been payable if such redemption had
not been made, over (ii) the aggregate principal amount of such Note
being redeemed.
(3) "Treasury Yield" means, in connection with the
calculation of any Make-Whole Premium on any Note, the yield to
maturity at the time of computation of United States Treasury
securities with a constant maturity (as compiled by and published in
the most recent Federal Reserve Statistical Release H.15 (519) that has
become publicly available at least two Business Days prior to the date
fixed for redemption (or, if such Statistical Release is no longer
published, any publicly available source of similar data)) equal to the
then-remaining maturity of such Note; provided that if no United States
Treasury security is available with such a constant maturity and for
which a closing yield is given, the Treasury Yield shall be obtained by
linear interpolation (calculated to the nearest one-twelfth of a year)
from the closing yields of United States Treasury securities for which
such yields are given, except that if the remaining maturity of such
Note is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of
one year shall be used.
(4) All references herein to Articles and Sections,
unless otherwise specified, refer to the corresponding Articles and
Sections of this First Supplemental Indenture; and
(5) The terms "herein", "hereof", "hereunder" and
other words of similar import refer to this First Supplemental
Indenture.
ARTICLE II
The Series of Securities
SECTION 2.01 The Title of the Securities.
There shall be a series of Securities designated the "7% Senior Notes
due 2018" (the "Notes"). The Notes shall be executed, authenticated and
delivered in accordance with the provisions of, and shall in all respects be
subject to, the terms, conditions and covenants of the Indenture and this First
Supplemental Indenture (including the form of Note set forth as Exhibit A
hereto).
2
<PAGE> 4
SECTION 2.02 Limitation on Aggregate Principal Amount.
The aggregate principal amount of the Notes shall be limited to
$100,000,000; provided, however, that the Notes may be reopened, without the
consent of Holders of the Notes, for increases in the authorized aggregate
principal amount of the Notes and issuances of additional Notes.
SECTION 2.03 Stated Maturity.
The Stated Maturity of the Notes shall be October 1, 2018.
SECTION 2.04 Interest and Interest Rates.
The rate of interest on each Note shall be 7% per annum, accruing from
October 1, 1998 and interest shall be payable, semi-annually in arrears, on
April 1 and October 1 of each year (each such date, an "Interest Payment Date"),
commencing April 1, 1999 to the Persons in whose names the Notes are registered
at the close of business on the immediately preceding March 15 and September 15,
respectively, whether or not such day is a Business Day (each such date, a
"Regular Record Date"). 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 a Note 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. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will be
paid to the Person in whose name such Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. 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 shall either (i) be paid to the Person in whose name such Note (or one or
more Predecessor Securities) is registered at the close of business on the
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice of which shall be given to Holders of the Notes not less
than 10 days prior to such Special Record Date, or (ii) 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 Notes 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 the Indenture.
SECTION 2.05 Place of Payment.
The Place of Payment where the Notes may be presented or surrendered
for payment shall initially be the Corporate Trust Office of the Trustee in the
City and State of New York.
SECTION 2.06 Place of Registration or Exchange; Notices and Demands With
Respect to the Notes.
3
<PAGE> 5
The place where the Holders of the Notes may present the Notes for
registration of transfer or exchange and may make notices and demands to or upon
the Company in respect of the Notes shall initially be the Corporate Trust
Office of the Trustee in the City and State of New York.
SECTION 2.07 Percentage of Principal Amount.
The Notes shall be issued at 99.734% of their principal amount.
SECTION 2.08 Global Securities.
The Notes shall initially be issuable in the form of one or more Global
Securities. Such Global Securities shall be deposited with, or on behalf of, The
Depository Trust Company, New York, New York, which shall act as Depositary with
respect to the Notes. Such Global Securities shall bear the legends set forth in
the form of Note attached as Exhibit A hereto.
SECTION 2.09 Form of Notes.
The Notes shall be substantially in the form attached as Exhibit A
hereto. The Notes shall be registered in such names, shall be in such amounts
and shall have such other specific terms contemplated in the form of Note
attached hereto as Exhibit A, as shall be communicated by the Company to the
Trustee in accordance with the administrative procedures, as in effect from time
to time, established to provide for the issuance of the Notes.
SECTION 2.10 Securities Registrar.
The Trustee shall serve as the initial Securities Registrar.
SECTION 2.11 Defeasance and Discharge; Covenant Defeasance.
Article XIII of the Indenture, including without limitation, Sections
1302 and 1303 thereof, shall apply to the Notes.
SECTION 2.12 Optional Redemption.
The Notes are subject to redemption upon not less than 30 nor more than
60 days' notice by mail, at the election of the Company at any time, as a whole
or in part, in principal amounts of $1,000 or any integral multiple thereof at
any time at a Redemption Price equal to the sum of (a) an amount equal to 100%
of the principal amount thereof and (b) the applicable Make-Whole Premium,
together with accrued and unpaid interest to the date fixed for redemption;
provided that installments of interest on Notes that are due and payable on any
date on or prior to a Redemption Date shall be payable to the registered Holders
of such Notes (or one or more Predecessor Securities), registered as such as of
the close of business on the relevant Record Dates. The Make-Whole Premium shall
be calculated and certified to the Trustee by an independent investment banking
institution of national standing appointed by the Company; provided that if the
Company fails to notify the Trustee that it has made such appointment at least
30 calendar days prior to the Redemption Date, or if the institution so
appointed has notified the Trustee in writing at least fifteen days prior to the
4
<PAGE> 6
Redemption Date that it is unwilling or unable to make such calculation, such
calculation shall be made by an independent investment banking institution of
national standing appointed by the Trustee at the cost and expense of the
Company. The Redemption Price included in the notice to the Holders shall state
that the Redemption Price as set forth therein shall be increased by the
Make-Whole Premium.
SECTION 2.13 Sinking Fund Obligations.
The Company has no obligation to redeem or purchase any Notes pursuant
to any sinking fund or analogous requirement or upon the happening of a
specified event or at the option of a Holder thereof.
ARTICLE III
Miscellaneous
SECTION 3.01 The recitals contained herein shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness.
The Trustee makes no representations as to the validity or sufficiency
of this First Supplemental Indenture or the proper authorization or the due
execution hereof by the Company.
SECTION 3.02 Except as expressly supplemented and amended hereby, the
Indenture shall continue in full force and effect in accordance with the
provisions thereof, and the Indenture, as supplemented and amended hereby, is in
all respects hereby ratified and confirmed. This First Supplemental Indenture
and all its provisions shall be deemed a part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 3.03 This First Supplemental Indenture and the Notes shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 3.04 This instrument may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
5
<PAGE> 7
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP [Seal]
By: Lakehead Pipe Line Company, Inc.
Its General Partner
By: /s/ MARK A. MAKI
------------------------------------------
Name: Mark A. Maki
Title: Chief Accountant
Attest: /s/ TAMMY LAMIRANDE
--------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee [Seal]
By: /s/ VALERIE DUNBAR
------------------------------------------
Name: Valerie Dunbar
Title: Authorized Officer
Attest: /s/ PATRICIA M. MARSHALL
--------------------------------------
Name:
Title:
6
<PAGE> 8
EXHIBIT A
[FORM OF FACE OF NOTE]
[If the Note is a Global Security, insert -- THIS NOTE 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 NOTE MAY NOT
BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR NOTES 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 NOTE AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER
OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS NOTE SHALL BE A GLOBAL SECURITY
SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR 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.]
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP
7% SENIOR NOTES DUE 2018
NO. U.S.$______________
CUSIP No.
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP, a Delaware limited
partnership (herein called the "Company", 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 October 1, 2018, and to pay interest
thereon from October 1, 1998, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on April 1 and
October 1 in each year, commencing April 1, 1999, at the rate of 7% per annum,
until the principal hereof is paid or made available for payment, and at a rate
of 7% 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
A-1
<PAGE> 9
the days elapsed in any partial month. In the event that any date on which
interest is payable on this Note 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
Note (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 March
15 or September 15 (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 shall either (i) be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice of which shall be given to Holders of Notes not
less than 10 days prior to such Special Record Date, or (ii) 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 Notes 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.
[If the Note is a Global Security, insert -- Payment of the principal
of and premium, if any, and interest on this Note will be made by transfer of
immediately available funds to a bank account in The City and State 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.]
[If the Note is a Definitive Security, insert -- Payment of the
principal of and premium, if any, and interest on this Note will be made at the
office or agency of the Company maintained for that purpose in The City and
State of New York or at such other offices or agencies as the Company may
designate, 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, or
subject to any laws or regulations applicable thereto, at the option of the
Company, by United States Dollar check drawn on, or transfer to a United States
Dollar account maintained by the payee with, a bank in The City and State 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 payment
date); provided, however, that payment at maturity will only be made against
presentation and surrender of this Note; and provided, further, that any Holder
of this Note who is the Holder of at least $1.0 million aggregate principal
amount of Notes may request to have any payment of interest on this Note be made
by transfer to a United States Dollar account maintained by the payee with a
bank in the United States (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).]
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-2
<PAGE> 10
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP
By: Lakehead Pipe Line Company, Inc.,
Its General Partner
By:
-----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE AND AUTHORIZATION
This is one of the Notes designated therein referred to in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
As Trustee
By:
-----------------------------------
Authorized Officer
A-3
<PAGE> 11
[FORM OF REVERSE OF NOTE]
This Note is one of a duly authorized issue of Securities of the
Company (the "Notes"), issued and to be issued in one or more series under an
Indenture dated as of September 15, 1998 (the "Indenture"), between the Company
and The Chase Manhattan Bank, 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 Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes 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 Note is one of a series of Securities designated on
the face hereof limited in aggregate principal amount to U.S.$100,000,000;
provided, however, that the Notes may be reopened, without the consent of
Holders of the Notes, for increases in the authorized aggregate principal amount
of the Notes and issuances of additional Notes.
The Notes are subject to redemption upon not less than 30 nor more than
60 days' notice by mail, at the election of the Company at any time, as a whole
or in part, in principal amounts of $1,000 or any integral multiple thereof at
any time at a Redemption Price equal to the sum of (a) an amount equal to 100%
of the principal amount thereof and (b) the applicable Make-Whole Premium,
together with accrued and unpaid interest to the date fixed for redemption;
provided that installments of interest on Notes that are due and payable on any
date on or prior to a Redemption Date shall be payable to the registered Holders
of such Notes (or one or more Predecessor Securities), registered as such as of
the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.
"Make-Whole Premium" means, in connection with any optional redemption
of any Note, the excess, if any, of (i) the aggregate present value as of the
date of such redemption of each dollar of principal of such Note being redeemed
and the amount of interest (exclusive of interest accrued to the date of
redemption) that would have been payable in respect of such dollar if such
redemption had not been made, determined by discounting, on a semiannual basis,
such principal and interest at a rate equal to the sum of the Treasury Yield
(determined on the Business Day immediately preceding the date of such
redemption) plus 0.25% from the respective dates on which such principal and
interest would have been payable if such redemption had not been made, over (ii)
the aggregate principal amount of such Note being redeemed.
"Treasury Yield" means, in connection with the calculation of any
Make-Whole Premium on any Note, the yield to maturity at the time of computation
of United States Treasury securities with a constant maturity (as compiled by
and published in the most recent Federal Reserve Statistical Release H.15 (519)
that has become publicly available at least two Business Days prior to the date
fixed for redemption (or, if such Statistical Release is no longer published,
any publicly available source of similar data)) equal to the then-remaining
maturity of such Note; provided that if no United States Treasury security is
available with such a constant maturity and for which a closing yield is
A-4
<PAGE> 12
given, the Treasury Yield shall be obtained by linear interpolation (calculated
to the nearest one-twelfth of a year) from the closing yields of United States
Treasury securities for which such yields are given, except that if the
remaining maturity of such Note is less than one year, the weekly average yield
on actually traded United States Treasury securities adjusted to a constant
maturity of one year shall be used.
In the event of redemption of this Note in part only, a new Note or
Notes 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 Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes to be affected under the
Indenture at any time by the Company and the Trustee with the consent of not
less than the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series to be affected (voting as one class). The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all affected series
(voting as one class), on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture. The Indenture permits, with certain exceptions as therein provided,
the Holders of a majority in principal amount of Notes then Outstanding to waive
past defaults under the Indenture with respect to the Notes and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note 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 Note.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note 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
Notes, the Holders of not less than 25% in principal amount of the Notes 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 the Notes 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 Note for the enforcement of any payment of principal, premium, if any, or
interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, interest
on this Note at the times, place(s) and rate, and in the coin or currency,
herein prescribed.
A-5
<PAGE> 13
[If the Note is a Global Security, insert -- This Global Security or
portion hereof may not be exchanged for Definitive Securities 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 thereof for
any purpose under the Indenture.]
[If the Note is a Definitive Security, insert -- As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Note is registerable in the Security Register, upon surrender of this Note
for registration of transfer at the office or agency of the Company in The City
and State of New York or at such other offices or agencies as the Company may
designate, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Notes and of like tenor, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.]
The Notes 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 Notes
are transferable and exchangeable at the office of the Registrar and any
co-registrar for a like aggregate principal amount of Notes 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 Company may require payment of a sum sufficient to cover
any transfer tax or other similar governmental charge payable in connection with
certain transfers and exchanges.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Obligations of the Company under the Indenture and the Securities
thereunder, including this Note, are non-recourse to Lakehead Pipe Line Company,
Inc. (the "General Partner") and Lakehead Pipe Line Partners, L.P. ("Lakehead")
and their respective Affiliates (other than the Company), and payable only out
of cash flow and assets of the Company. The Trustee, and each Holder of a Note
by its acceptance hereof, will be deemed to have agreed in the Indenture that
(1) neither the General Partner nor its assets nor Lakehead nor its assets (nor
any of their respective Affiliates other than the Company, nor their respective
assets) shall be liable for any of the obligations of the Company under the
Indenture or such Securities, including this Note, and (2) no director, officer,
employee, stockholder or unitholder, as such, of the Company, the Trustee, the
General Partner, Lakehead or any Affiliate of any of the foregoing entities
shall have any personal liability in respect of the obligations of the Company
under the Indenture or such Securities by reason of his, her or its status.
Notwithstanding the foregoing, nothing in this paragraph shall be construed to
modify or supersede any obligation of Lakehead or the General Partner to restore
any negative balance in their respective capital accounts (maintained by the
Company pursuant to the Company's Amended and Restated Agreement of Limited
Partnership) upon liquidation of their respective interests in the Company.
A-6
<PAGE> 14
The Indenture contains provisions that relieve the Company from the
obligation to comply with certain restrictive covenants in the Indenture and for
satisfaction and discharge at any time of the entire indebtedness upon
compliance by the Company with certain conditions set forth in the Indenture.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
[If the Note is a Definitive Security, insert as a separate page--
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 LAKEHEAD PIPE
LINE COMPANY, LIMITED PARTNERSHIP and does hereby irrevocably constitute and
appoint ________________________ Attorney to transfer said instrument on the
books of the within-named Company, with full power of substitution in the
premises.
Please Insert Social Security or
Other Identifying Number of Assignee:
- --------------------------------------------------------------------------------
Dated: (Signature)
---------------------------- -----------------------------
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.]
A-7
<PAGE> 1
EXHIBIT 4.3
===============================================================================
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP
ISSUER
AND
THE CHASE MANHATTAN BANK
TRUSTEE
------------------
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF SEPTEMBER 15, 1998
------------------
7 1/8% SENIOR NOTES DUE 2028
------------------
===============================================================================
<PAGE> 2
SECOND SUPPLEMENTAL INDENTURE, dated as of September 15, 1998 (herein
called the "Second Supplemental Indenture"), between LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP, a Delaware limited partnership (herein called the
"Company"), having its principal office at Lake Superior Place, 21 West Superior
Street, Duluth, Minnesota 55802 and THE CHASE MANHATTAN BANK, a banking
corporation duly organized and existing under the laws of the State of New York,
as trustee under the Indenture referred to below (herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the
Trustee the Indenture, dated as of September 15, 1998 (herein called the
"Indenture"), providing for the issuance from time to time of one or more series
of the Company's unsecured senior debentures, notes or other evidences of
indebtedness (herein called the "Securities"); and
WHEREAS, Section 301 of the Indenture provides that various matters
with respect to any series of Securities issued under the Indenture may be
established in an indenture supplemental to the Indenture; and
WHEREAS, Section 901(4) of the Indenture provides that the Company and
the Trustee may enter into indentures supplemental to the Indenture for the
purpose of establishing the form or terms of the Securities of any series as
permitted in Sections 201 and 301 of the Indenture; and
WHEREAS, the Company desires to create a series of the Securities in an
aggregate principal amount of up to $100,000,000, which series shall be
designated the 7 1/8% Senior Notes Due 2028 (the "Notes"), and all action on the
part of the Company necessary to authorize the issuance of the Notes under the
Indenture and this Second Supplemental Indenture has been duly taken; and
WHEREAS, all acts and things necessary to make the Notes, when executed
by the Company and completed, authenticated and delivered by the Trustee as
provided in the Indenture and this Second Supplemental Indenture, the valid and
binding obligations of the Company 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 SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises and the issuance of the Notes,
the Company covenants and agrees with the Trustee, for the equal and
proportionate benefit of all holders of the Notes, as follows:
ARTICLE I
Relation to Indenture; Definitions
SECTION 1.01 This Second Supplemental Indenture constitutes an integral
part of the Indenture.
1
<PAGE> 3
SECTION 1.02 For all purposes of this Second Supplemental Indenture:
(1) Capitalized terms used herein shall have the
meanings specified herein or in the Indenture, as the case may be;
(2) "Make-Whole Premium" means, in connection with
any optional redemption of any Note, the excess, if any, of (i) the
aggregate present value as of the date of such redemption of each
dollar of principal of such Note being redeemed and the amount of
interest (exclusive of interest accrued to the date of redemption) that
would have been payable in respect of such dollar if such redemption
had not been made, determined by discounting, on a semiannual basis,
such principal and interest at a rate equal to the sum of the Treasury
Yield (determined on the Business Day immediately preceding the date of
such redemption) plus 0.25% from the respective dates on which such
principal and interest would have been payable if such redemption had
not been made, over (ii) the aggregate principal amount of such Note
being redeemed.
(3) "Treasury Yield" means, in connection with the
calculation of any Make-Whole Premium on any Note, the yield to
maturity at the time of computation of United States Treasury
securities with a constant maturity (as compiled by and published in
the most recent Federal Reserve Statistical Release H.15 (519) that has
become publicly available at least two Business Days prior to the date
fixed for redemption (or, if such Statistical Release is no longer
published, any publicly available source of similar data)) equal to the
then-remaining maturity of such Note; provided that if no United States
Treasury security is available with such a constant maturity and for
which a closing yield is given, the Treasury Yield shall be obtained by
linear interpolation (calculated to the nearest one-twelfth of a year)
from the closing yields of United States Treasury securities for which
such yields are given, except that if the remaining maturity of such
Note is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of
one year shall be used.
(4) All references herein to Articles and Sections,
unless otherwise specified, refer to the corresponding Articles and
Sections of this Second Supplemental Indenture; and
(5) The terms "herein", "hereof", "hereunder" and
other words of similar import refer to this Second Supplemental
Indenture.
ARTICLE II
The Series of Securities
SECTION 2.01 The Title of the Securities.
There shall be a series of Securities designated the "7 1/8% Senior
Notes due 2028" (the "Notes"). The Notes shall be executed, authenticated and
delivered in accordance with the provisions of, and shall in all respects be
subject to, the terms, conditions and covenants of the
2
<PAGE> 4
Indenture and this Second Supplemental Indenture (including the form of Note set
forth as Exhibit A hereto).
SECTION 2.02 Limitation on Aggregate Principal Amount.
The aggregate principal amount of the Notes shall be limited to
$100,000,000; provided, however, that the Notes may be reopened, without the
consent of Holders of the Notes, for increases in the authorized aggregate
principal amount of the Notes and issuances of additional Notes.
SECTION 2.03 Stated Maturity.
The Stated Maturity of the Notes shall be October 1, 2028.
SECTION 2.04 Interest and Interest Rates.
The rate of interest on each Note shall be 7 1/8% per annum, accruing
from October 1, 1998 and interest shall be payable, semi-annually in arrears, on
April 1 and October 1 of each year (each such date, an "Interest Payment Date"),
commencing April 1, 1999 to the Persons in whose names the Notes are registered
at the close of business on the immediately preceding March 15 and September 15,
respectively, whether or not such day is a Business Day (each such date, a
"Regular Record Date"). 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 a Note 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. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will be
paid to the Person in whose name such Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. 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 shall either (i) be paid to the Person in whose name such Note (or one or
more Predecessor Securities) is registered at the close of business on the
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice of which shall be given to Holders of the Notes not less
than 10 days prior to such Special Record Date, or (ii) 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 Notes 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 the Indenture.
SECTION 2.05 Place of Payment.
The Place of Payment where the Notes may be presented or surrendered
for payment shall initially be the Corporate Trust Office of the Trustee in the
City and State of New York.
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<PAGE> 5
SECTION 2.06 Place of Registration or Exchange; Notices and Demands With
Respect to the Notes.
The place where the Holders of the Notes may present the Notes for
registration of transfer or exchange and may make notices and demands to or upon
the Company in respect of the Notes shall initially be the Corporate Trust
Office of the Trustee in the City and State of New York.
SECTION 2.07 Percentage of Principal Amount.
The Notes shall be issued at 99.693% of their principal amount.
SECTION 2.08 Global Securities.
The Notes shall initially be issuable in the form of one or more Global
Securities. Such Global Securities shall be deposited with, or on behalf of, The
Depository Trust Company, New York, New York, which shall act as Depositary with
respect to the Notes. Such Global Securities shall bear the legends set forth in
the form of Note attached as Exhibit A hereto.
SECTION 2.09 Form of Notes.
The Notes shall be substantially in the form attached as Exhibit A
hereto. The Notes shall be registered in such names, shall be in such amounts
and shall have such other specific terms contemplated in the form of Note
attached hereto as Exhibit A, as shall be communicated by the Company to the
Trustee in accordance with the administrative procedures, as in effect from time
to time, established to provide for the issuance of the Notes.
SECTION 2.10 Securities Registrar.
The Trustee shall serve as the initial Securities Registrar.
SECTION 2.11 Defeasance and Discharge; Covenant Defeasance.
Article XIII of the Indenture, including without limitation, Sections
1302 and 1303 thereof, shall apply to the Notes.
SECTION 2.12 Optional Redemption.
The Notes are subject to redemption upon not less than 30 nor more than
60 days' notice by mail, at the election of the Company at any time, as a whole
or in part, in principal amounts of $1,000 or any integral multiple thereof at
any time at a Redemption Price equal to the sum of (a) an amount equal to 100%
of the principal amount thereof and (b) the applicable Make-Whole Premium,
together with accrued and unpaid interest to the date fixed for redemption;
provided that installments of interest on Notes that are due and payable on any
date on or prior to a Redemption Date shall be payable to the registered Holders
of such Notes (or one or more Predecessor Securities), registered as such as of
the close of business on the relevant Record Dates. The Make-Whole Premium shall
be calculated and certified to the Trustee by an independent investment banking
institution of
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<PAGE> 6
national standing appointed by the Company; provided that if the Company fails
to notify the Trustee that it has made such appointment at least 30 calendar
days prior to the Redemption Date, or if the institution so appointed has
notified the Trustee in writing at least fifteen days prior to the Redemption
Date that it is unwilling or unable to make such calculation, such calculation
shall be made by an independent investment banking institution of national
standing appointed by the Trustee at the cost and expense of the Company. The
Redemption Price included in the notice to the Holders shall state that the
Redemption Price as set forth therein shall be increased by the Make-Whole
Premium.
SECTION 2.13 Sinking Fund Obligations.
The Company has no obligation to redeem or purchase any Notes pursuant
to any sinking fund or analogous requirement or upon the happening of a
specified event or at the option of a Holder thereof.
ARTICLE III
Miscellaneous
SECTION 3.01 The recitals contained herein shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness.
The Trustee makes no representations as to the validity or sufficiency
of this Second Supplemental Indenture or the proper authorization or the due
execution hereof by the Company.
SECTION 3.02 Except as expressly supplemented and amended hereby, the
Indenture shall continue in full force and effect in accordance with the
provisions thereof, and the Indenture, as supplemented and amended hereby, is in
all respects hereby ratified and confirmed. This Second Supplemental Indenture
and all its provisions shall be deemed a part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 3.03 This Second Supplemental Indenture and the Notes shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 3.04 This instrument may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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<PAGE> 7
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP [Seal]
By: Lakehead Pipe Line Company, Inc.
Its General Partner
By: /s/ MARK A. MAKI
------------------------------------
Name: Mark A. Maki
----------------------------------
Title: Chief Accountant
---------------------------------
Attest: /s/ TAMMY LAMIRANDE
-------------------------------
Name:
---------------------------------
Title:
--------------------------------
THE CHASE MANHATTAN BANK,
as Trustee [Seal]
By: /s/ VALERIE DUNBAR
------------------------------------
Name: Valerie Dunbar
---------------------------------
Title: Authorized Officer
--------------------------------
Attest: /s/ PATRICIA M. MARSHALL
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
6
<PAGE> 8
EXHIBIT A
[FORM OF FACE OF NOTE]
[If the Note is a Global Security, insert -- THIS NOTE 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 NOTE MAY NOT
BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR NOTES 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 NOTE AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER
OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS NOTE SHALL BE A GLOBAL SECURITY
SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR 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.]
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP
7 1/8% SENIOR NOTES DUE 2028
NO. U.S.$______________
CUSIP No.
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP, a Delaware limited
partnership (herein called the "Company", 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 October 1, 2028, and to pay interest thereon
from October 1,1998, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on April 1 and
October 1 in each year, commencing April 1, 1999, at the rate of 7 1/8% per
annum, until the principal hereof is paid or made available for payment, and at
a rate of 7 1/8% 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
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<PAGE> 9
months and the days elapsed in any partial month. In the event that any date on
which interest is payable on this Note 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 Note (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 March 15 or September 15 (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 shall either (i) be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice of which shall be given to Holders
of Notes not less than 10 days prior to such Special Record Date, or (ii) 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 Notes 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.
[If the Note is a Global Security, insert -- Payment of the principal
of and premium, if any, and interest on this Note will be made by transfer of
immediately available funds to a bank account in The City and State 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.]
[If the Note is a Definitive Security, insert -- Payment of the
principal of and premium, if any, and interest on this Note will be made at the
office or agency of the Company maintained for that purpose in The City and
State of New York or at such other offices or agencies as the Company may
designate, 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, or
subject to any laws or regulations applicable thereto, at the option of the
Company, by United States Dollar check drawn on, or transfer to a United States
Dollar account maintained by the payee with, a bank in The City and State 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 payment
date); provided, however, that payment at maturity will only be made against
presentation and surrender of this Note; and provided, further, that any Holder
of this Note who is the Holder of at least $1.0 million aggregate principal
amount of Notes may request to have any payment of interest on this Note be made
by transfer to a United States Dollar account maintained by the payee with a
bank in the United States (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).]
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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<PAGE> 10
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP
By: Lakehead Pipe Line Company, Inc.,
Its General Partner
By:
------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE AND AUTHORIZATION
This is one of the Notes designated therein referred to in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
As Trustee
By:
------------------------------
Authorized Officer
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<PAGE> 11
[FORM OF REVERSE OF NOTE]
This Note is one of a duly authorized issue of Securities of the
Company (the "Notes"), issued and to be issued in one or more series under an
Indenture dated as of September 15, 1998 (the "Indenture"), between the Company
and The Chase Manhattan Bank, 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 Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes 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 Note is one of a series of Securities designated on
the face hereof limited in aggregate principal amount to U.S.$100,000,000;
provided, however, that the Notes may be reopened, without the consent of
Holders of the Notes, for increases in the authorized aggregate principal amount
of the Notes and issuances of additional Notes.
The Notes are subject to redemption upon not less than 30 nor more than
60 days' notice by mail, at the election of the Company at any time, as a whole
or in part, in principal amounts of $1,000 or any integral multiple thereof at
any time at a Redemption Price equal to the sum of (a) an amount equal to 100%
of the principal amount thereof and (b) the applicable Make-Whole Premium,
together with accrued and unpaid interest to the date fixed for redemption;
provided that installments of interest on Notes that are due and payable on any
date on or prior to a Redemption Date shall be payable to the registered Holders
of such Notes (or one or more Predecessor Securities), registered as such as of
the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.
"Make-Whole Premium" means, in connection with any optional redemption
of any Note, the excess, if any, of (i) the aggregate present value as of the
date of such redemption of each dollar of principal of such Note being redeemed
and the amount of interest (exclusive of interest accrued to the date of
redemption) that would have been payable in respect of such dollar if such
redemption had not been made, determined by discounting, on a semiannual basis,
such principal and interest at a rate equal to the sum of the Treasury Yield
(determined on the Business Day immediately preceding the date of such
redemption) plus 0.25% from the respective dates on which such principal and
interest would have been payable if such redemption had not been made, over (ii)
the aggregate principal amount of such Note being redeemed.
"Treasury Yield" means, in connection with the calculation of any
Make-Whole Premium on any Note, the yield to maturity at the time of computation
of United States Treasury securities with a constant maturity (as compiled by
and published in the most recent Federal Reserve Statistical Release H.15 (519)
that has become publicly available at least two Business Days prior to the date
fixed for redemption (or, if such Statistical Release is no longer published,
any publicly available source of similar data)) equal to the then-remaining
maturity of such Note; provided that if no United States Treasury security is
available with such a constant maturity and for which a closing yield is
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<PAGE> 12
given, the Treasury Yield shall be obtained by linear interpolation (calculated
to the nearest one-twelfth of a year) from the closing yields of United States
Treasury securities for which such yields are given, except that if the
remaining maturity of such Note is less than one year, the weekly average yield
on actually traded United States Treasury securities adjusted to a constant
maturity of one year shall be used.
In the event of redemption of this Note in part only, a new Note or
Notes 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 Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes to be affected under the
Indenture at any time by the Company and the Trustee with the consent of not
less than the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series to be affected (voting as one class). The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all affected series
(voting as one class), on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture. The Indenture permits, with certain exceptions as therein provided,
the Holders of a majority in principal amount of Notes then Outstanding to waive
past defaults under the Indenture with respect to the Notes and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note 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 Note.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note 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
Notes, the Holders of not less than 25% in principal amount of the Notes 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 the Notes 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 Note for the enforcement of any payment of principal, premium, if any, or
interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, interest
on this Note at the times, place(s) and rate, and in the coin or currency,
herein prescribed.
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<PAGE> 13
[If the Note is a Global Security, insert -- This Global Security or
portion hereof may not be exchanged for Definitive Securities 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 thereof for
any purpose under the Indenture.]
[If the Note is a Definitive Security, insert -- As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Note is registerable in the Security Register, upon surrender of this Note
for registration of transfer at the office or agency of the Company in The City
and State of New York or at such other offices or agencies as the Company may
designate, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Notes and of like tenor, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.]
The Notes 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 Notes
are transferable and exchangeable at the office of the Registrar and any
co-registrar for a like aggregate principal amount of Notes 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 Company may require payment of a sum sufficient to cover
any transfer tax or other similar governmental charge payable in connection with
certain transfers and exchanges.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Obligations of the Company under the Indenture and the Securities
thereunder, including this Note, are non-recourse to Lakehead Pipe Line Company,
Inc. (the "General Partner") and Lakehead Pipe Line Partners, L.P. ("Lakehead")
and their respective Affiliates (other than the Company), and payable only out
of cash flow and assets of the Company. The Trustee, and each Holder of a Note
by its acceptance hereof, will be deemed to have agreed in the Indenture that
(1) neither the General Partner nor its assets nor Lakehead nor its assets (nor
any of their respective Affiliates other than the Company, nor their respective
assets) shall be liable for any of the obligations of the Company under the
Indenture or such Securities, including this Note, and (2) no director, officer,
employee, stockholder or unitholder, as such, of the Company, the Trustee, the
General Partner, Lakehead or any Affiliate of any of the foregoing entities
shall have any personal liability in respect of the obligations of the Company
under the Indenture or such Securities by reason of his, her or its status.
Notwithstanding the foregoing, nothing in this paragraph shall be construed to
modify or supersede any obligation of Lakehead or the General Partner to restore
any negative balance in their respective capital accounts (maintained by the
Company pursuant to the Company's Amended and Restated Agreement of Limited
Partnership) upon liquidation of their respective interests in the Company.
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<PAGE> 14
The Indenture contains provisions that relieve the Company from the
obligation to comply with certain restrictive covenants in the Indenture and for
satisfaction and discharge at any time of the entire indebtedness upon
compliance by the Company with certain conditions set forth in the Indenture.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
[If the Note is a Definitive Security, insert as a separate page--
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 LAKEHEAD PIPE
LINE COMPANY, LIMITED PARTNERSHIP and does hereby irrevocably constitute and
appoint ________________________ Attorney to transfer said instrument on the
books of the within-named Company, with full power of substitution in the
premises.
Please Insert Social Security or
Other Identifying Number of Assignee:
_______________________________________________________________________________
Dated:____________________ _________ ___________________________ (Signature)
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.]
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<PAGE> 1
EXHIBIT 4.4
Execution Copy
===============================================================================
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP
ISSUER
THE CHASE MANHATTAN BANK
TRUSTEE
------------------
INDENTURE
DATED AS OF SEPTEMBER 15, 1998
------------------
SUBORDINATED DEBT SECURITIES
------------------
===============================================================================
<PAGE> 2
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
----------- -----------------
<S> <C>
Section 310(a)(1)............................................................................ 609
(a)(2)............................................................................ 609
(a)(3)............................................................................ Not Applicable
(a)(4)............................................................................ Not Applicable
(b)............................................................................... 608; 610
Section 311(a)............................................................................... 613
(b)............................................................................... 613
Section 312(a)............................................................................... 701; 702
(b)............................................................................... 702
(c)............................................................................... 702
Section 313(a)............................................................................... 703
(b)............................................................................... 703
(c)............................................................................... 703
(d)............................................................................... 703
Section 314(a)............................................................................... 704
(a)(4)............................................................................ 104; 1004
(b)............................................................................... Not Applicable
(c)(1)............................................................................ 101
(c)(2)............................................................................ 101; 102
(c)(3)............................................................................ Not Applicable
(d)............................................................................... Not Applicable
(e)............................................................................... 102
Section 315(a)............................................................................... 601
(b)............................................................................... 602
(c)............................................................................... 601
(d)............................................................................... 601
(e)............................................................................... 514
Section 316(a)............................................................................... 101
(a)(1)(A)......................................................................... 502; 512
(a)(1)(B)......................................................................... 513
(a)(2)............................................................................ Not Applicable
(b)............................................................................... 508
(c)............................................................................... 104
Section 317(a)(1)............................................................................ 503
(a)(2)............................................................................ 504
(b)............................................................................... 1003
Section 318(a)............................................................................... 107
</TABLE>
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
<TABLE>
<S> <C>
SECTION 101. Definitions..................................................................................1
SECTION 102. Compliance Certificates and Opinions.........................................................8
SECTION 103. Form of Documents Delivered to Trustee.......................................................9
SECTION 104. Acts of Holders; Record Dates................................................................9
SECTION 105. Notices, Etc., to Trustee and Company.......................................................11
SECTION 106. Notice to Holders; Waiver...................................................................11
SECTION 107. Conflict with Trust Indenture Act...........................................................12
SECTION 108. Effect of Headings and Table of Contents....................................................12
SECTION 109. Successors and Assigns......................................................................12
SECTION 110. Separability Clause.........................................................................12
SECTION 111. Benefits of Indenture.......................................................................12
SECTION 112. Governing Law...............................................................................12
SECTION 113. Legal Holidays..............................................................................12
SECTION 114. Language of Notices, Etc....................................................................13
SECTION 115. Non-Recourse to the General Partner and Lakehead; No Personal
Liability of Officers, Directors, Employees or Partners.....................................13
ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally.............................................................................13
SECTION 202. Form of Face of Security....................................................................14
SECTION 203. Form of Reverse of Security.................................................................17
SECTION 204. Global Securities...........................................................................22
SECTION 205. Form of Trustee's Certificate and Authorization.............................................23
ARTICLE III
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series........................................................23
SECTION 302. Denominations...............................................................................26
SECTION 303. Execution, Authentication, Delivery and Dating..............................................26
SECTION 304. Temporary Securities........................................................................28
SECTION 305. Registration, Registration of Transfer and Exchange.........................................29
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities............................................30
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SECTION 307. Payment of Interest; Interest Rights Preserved..............................................31
SECTION 308. Persons Deemed Owners.......................................................................33
SECTION 309. Cancellation................................................................................33
SECTION 310. Computation of Interest.....................................................................33
SECTION 311. CUSIP Numbers...............................................................................34
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.....................................................34
SECTION 402. Application of Trust Money..................................................................35
ARTICLE V
REMEDIES
SECTION 501. Events of Default...........................................................................35
SECTION 502. Acceleration of Maturity; Rescission and Annulment..........................................36
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.............................37
SECTION 504. Trustee May File Proofs of Claim............................................................38
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.................................39
SECTION 506. Application of Money Collected..............................................................39
SECTION 507. Limitation on Suits.........................................................................39
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest...................40
SECTION 509. Restoration of Rights and Remedies..........................................................40
SECTION 510. Rights and Remedies Cumulative..............................................................40
SECTION 511. Delay or Omission Not Waiver................................................................41
SECTION 512. Control by Holders..........................................................................41
SECTION 513. Waiver of Past Defaults.....................................................................41
SECTION 514. Undertaking for Costs.......................................................................42
SECTION 515. Waiver of Usury, Stay or Extension Laws.....................................................42
ARTICLE VI
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.........................................................42
SECTION 602. Notice of Defaults..........................................................................42
SECTION 603. Certain Rights of Trustee...................................................................43
SECTION 604. Not Responsible for Recitals or Issuance of Securities......................................44
SECTION 605. May Hold Securities.........................................................................44
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SECTION 606. Money Held in Trust.........................................................................44
SECTION 607. Compensation and Reimbursement..............................................................44
SECTION 608. Disqualification; Conflicting Interests.....................................................45
SECTION 609. Corporate Trustee Required; Eligibility.....................................................45
SECTION 610. Resignation and Removal; Appointment of Successor...........................................46
SECTION 611. Acceptance of Appointment by Successor......................................................47
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.................................48
SECTION 613. Preferential Collection of Claims Against Company...........................................48
SECTION 614. Appointment of Authenticating Agent.........................................................49
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders...................................50
SECTION 702. Preservation of Information; Communications to Holders......................................51
SECTION 703. Reports by Trustee..........................................................................51
SECTION 704. Reports by Company..........................................................................51
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms........................................52
SECTION 802. Successor Substituted.......................................................................53
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders..........................................53
SECTION 902. Supplemental Indentures with Consent of Holders.............................................54
SECTION 903. Execution of Supplemental Indentures........................................................55
SECTION 904. Effect of Supplemental Indentures...........................................................55
SECTION 905. Conformity with Trust Indenture Act.........................................................55
SECTION 906. Reference in Securities to Supplemental Indentures..........................................55
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ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest..................................................56
SECTION 1002. Maintenance of Office or Agency.............................................................56
SECTION 1003. Money for Securities Payments to Be Held in Trust...........................................57
SECTION 1004. Statement by Officers as to Default.........................................................58
SECTION 1005. Existence...................................................................................58
SECTION 1006. Waiver of Certain Covenants.................................................................58
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article....................................................................59
SECTION 1102. Election to Redeem; Notice to Trustee.......................................................59
SECTION 1103. Selection by Trustee of Securities to be Redeemed...........................................59
SECTION 1104. Notice of Redemption........................................................................60
SECTION 1105. Deposit of Redemption Price.................................................................60
SECTION 1106. Securities Payable on Redemption Date.......................................................60
SECTION 1107. Securities Redeemed in Part.................................................................61
ARTICLE XII
SINKING FUNDS
SECTION 1201. Applicability of Article....................................................................61
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.......................................62
SECTION 1203. Redemption of Securities for Sinking Fund...................................................62
ARTICLE XIII
DEFEASANCE
SECTION 1301. Applicability of Article....................................................................62
SECTION 1302. Legal Defeasance............................................................................62
SECTION 1303. Covenant Defeasance.........................................................................64
SECTION 1304. Application by Trustee of Funds Deposited for Payment of Securities.........................66
SECTION 1305. Repayment to Company........................................................................66
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ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 1401. Securities Subordinated to Senior Debt......................................................66
SECTION 1402. Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities...................................................................67
SECTION 1403. Payments on Securities Permitted............................................................69
SECTION 1404. Authorization of Holders of Securities to Trustee to Effect Subordination...................69
SECTION 1405. Notices to Trustee..........................................................................70
SECTION 1406. Trustee as Holder of Senior Debt............................................................71
SECTION 1407. Modification of Terms of Senior Debt........................................................71
</TABLE>
v
<PAGE> 8
INDENTURE dated as of September 15, 1998, between LAKEHEAD PIPE LINE
COMPANY, LIMITED PARTNERSHIP, a Delaware limited partnership (the "Company"),
having its principal office at Lake Superior Place, 21 West Superior Street,
Duluth, Minnesota 55802, and THE CHASE MANHATTAN BANK, a New York banking
corporation, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
that are required to be a part of this Indenture and, to the extent applicable,
shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series
thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly, or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
<PAGE> 9
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States at the
date of such computation;
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(5) the words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors or the protection of creditors.
"Board of Directors" means the board of directors of the General
Partner, or the executive or any other committee of that board duly authorized
to act in respect thereof. If the Company shall change its form of entity to
other than a limited partnership, the references to officers or the Board of
Directors of the General Partner shall mean the officers or the Board of
Directors (or other comparable governing body) of the Company.
"Board Resolution" means a copy of a resolution certified by the
Corporate Secretary of the General Partner, the principal financial officer of
the General Partner or any other authorized officer of the General Partner or a
person duly authorized by any of them, to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
2
<PAGE> 10
"Business Day", when used with respect to any Place of Payment or
other location, means, except as otherwise provided as contemplated by Section
301 with respect to any series of Securities, each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in that
Place of Payment or other location are authorized or obligated by law,
executive order or regulation to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by the Chairman of the Board, President,
Chief Accountant or a Vice President of the General Partner, and by the
Treasurer or Secretary of the General Partner, and delivered to the Trustee, or
if the Company shall change its form of entity to other than a limited
partnership, by Persons or officers, members, agents and the like positions
comparable to those of the foregoing nature, as applicable.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which at the date hereof is 450 West 33rd Street, 15th Floor, New
York, NY 10001-2697.
"corporation" includes corporations, associations, partnerships,
limited liability companies, joint-stock companies and business trusts.
"covenant defeasance" has the meaning specified in Section 1303.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Debt" means any obligation created or assumed by any Person for the
repayment of money borrowed, any purchase money obligation created or assumed
by such Person and any guarantee of the foregoing.
"Default" means, with respect to a series of Securities, 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.
"Defaulted Interest" has the meaning specified in Section 307.
3
<PAGE> 11
"defeasance" has the meaning specified in Section 1302.
"Definitive Security" means a Security other than a Global Security or
a temporary Security.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 301, until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depositary hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"General Partner" means Lakehead Pipe Line Company, Inc., a Delaware
corporation.
"Global Security" means a Security in global form that evidences all
or part of the Securities of any series and is registered in the name of, the
Depositary for such Securities or a nominee thereof.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" also shall include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Lien" means, as to any entity, any mortgage, lien, pledge, security
interest or other encumbrance in or on, or adverse interest or title of any
vendor, lessor, lender or other secured party
4
<PAGE> 12
to or of the entity under conditional sale or other title retention agreement
or capital lease with respect to, any property or asset of the entity.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(3).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, Chief Accountant or a Vice President, and by the
Treasurer or the Secretary, of the General Partner (or if the Company shall
change its form of entity to other than a limited partnership, by Persons or
officers, members, agents and comparable positions as applicable to those of
the foregoing nature, as applicable), and delivered to the Trustee. One of the
officers or such other Persons (as applicable) signing an Officers' Certificate
given pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the General Partner (or if the Company shall change its
form of entity to other than a limited partnership, by Persons or officers,
members, agents and comparable positions as applicable to those of the
foregoing nature, as applicable).
"Opinion of Counsel" means a written opinion of legal counsel, who may
be an employee of or counsel for the Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided, however, that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor has been made;
(3) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof
5
<PAGE> 13
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company; and
(4) Securities, except to the extent provided in Sections 1302 and
1303, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article XIII;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (A) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof on such date pursuant to Section 502, (B) the principal amount
of a Security denominated in one or more currencies or currency units other
than U.S. dollars shall be the U.S. dollar equivalent of such currencies or
currency units, determined in the manner provided as contemplated by Section
301 on the date of original issuance of such Security, of the principal amount
(or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent (as so determined) on the date of original issuance of such
Security, of the amount determined as provided in Clause (A) above) of such
Security, and (C) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded. Securities so
owned as described in Clause (C) above which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate
or rates of interest thereon, if any, the Stated Maturity or Stated Maturities
thereof, the original issue date or dates thereof, the redemption provisions,
if any, with respect thereto, and any other terms specified as contemplated by
Section 301 with respect thereto, are to be determined by the Company upon the
issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
other entity, unincorporated organization or government, or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means, unless otherwise specifically provided for with respect to such
series as contemplated by Section 301, the
6
<PAGE> 14
office or agency of the Company in The City of New York and such other place or
places where, subject to the provisions of Section 1002, the principal of and
any premium and interest on the Securities of that series are payable as
specified as contemplated by Section 301.
"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 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same Debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" of the Company, unless otherwise provided with respect
to the Securities of a series as contemplated by Section 301, means (1) all
Debt of the Company, whether currently outstanding or hereafter issued, unless,
by the terms of the instrument creating or evidencing such Debt, it is provided
that such Debt is not superior in right of payment to the Securities or to
other Debt which is pari passu with or subordinated to the Securities, and (2)
any modifications, refunding, deferrals, renewals or extensions of any such
Debt or securities, notes or other evidence of Debt issued in exchange for such
Debt; provided that in no event shall "Senior Debt" include (a) Debt of the
Company owed or owing to any Subsidiary of the Company or any officer, director
or employee of the Company or any Subsidiary of the Company, (b) Debt to trade
creditors or (c) any liability for taxes owed or owing by the Company.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
7
<PAGE> 15
"Subsidiary" means, with respect to any Person, (1) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of capital stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person and (2) any partnership (A) the sole general partner or the managing
general partner of which is such Person or an entity described in clause (1) and
related to such Person, (B) the only general partners of which are such Person
or of one or more entities described in clause (1) and related to such Person
(or any combination thereof) or (C) as to which such Person, or an entity
described in clause (1) and related to such Person, has the right to receive
more than 50% of the distributions of such partnership or has the right in the
event of dissolution to more than 50% of the assets of such partnership.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as otherwise
provided in Section 905; provided, however, that if the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean each Trustee with respect to
Securities of that series.
"U.S. Government Obligations" means securities which are (1) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (2) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by
the United States, each of which are not callable or redeemable at the option
of the issuer thereof.
"Vice President", when used with respect to the Company, means any
vice president of the General Partner, or when used with respect to the
Trustee, means any vice president of the Trustee.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates or opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the General Partner,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 1004) shall include:
8
<PAGE> 16
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(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 each such individual,
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, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the General
Partner may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
of counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or the General Partner stating that the information with respect to
such factual matters is in the possession of the Company or the General
Partner, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed (either physically or by means of a
facsimile or an electronic transmission, provided that such electronic
transmission is
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<PAGE> 17
transmitted through the facilities of a Depositary) by such Holders in person
or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered (either physically or by means of a facsimile or an
electronic transmission, provided that such electronic transmission is
transmitted through the facilities of a Depositary) to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership, principal amount and serial numbers of Securities held
by any Person, and the date of commencement of such Person's holding the same,
shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other action of the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any different part of such principal amount.
The Company may set any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders of Securities of such series, but the Company shall have no
obligation to do so. With regard to any record date set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant series on such
record date (or their duly appointed agents), and only such Persons,
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<PAGE> 18
shall be entitled to give or take the relevant action, whether or not such
Holders remain Holders after such record date.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention: Global
Trust Services Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at Lake Superior Place, 21 West Superior Street, Duluth,
Minnesota 55802, to the attention of the Corporate Secretary, or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid (if international mail,
by air mail), to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date (if any), and
not earlier than the earliest date (if any), prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
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 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.
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 by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
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SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or excluded, as the case
may be.
SECTION 108. 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 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Debt and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the law of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and
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<PAGE> 20
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, provided that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
SECTION 114. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent, waiver
or Act required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
SECTION 115. Non-Recourse to the General Partner and Lakehead; No Personal
Liability of Officers, Directors, Employees or Partners.
Obligations of the Company under this Indenture and the Securities
hereunder are non-recourse to the General Partner and Lakehead Pipe Line
Partners, L.P., a Delaware limited partnership ("Lakehead"), and their
respective Affiliates (other than the Company), and payable only out of cash
flow and assets of the Company. The Trustee, and each Holder of a Security by
its acceptance thereof, will be deemed to have agreed in this Indenture that
(1) neither the General Partner nor its assets nor Lakehead nor its assets (nor
any of their respective Affiliates other than the Company, nor their respective
assets) shall be liable for any of the obligations of the Company under this
Indenture or such Securities, and (2) no director, officer, employee,
stockholder or unitholder, as such, of the Company, the Trustee, the General
Partner, Lakehead or any Affiliate of any of the foregoing entities shall have
any personal liability in respect of the obligations of the Company under this
Indenture or such Securities by reason of his, her or its status.
Notwithstanding the foregoing, nothing in this Section shall be construed to
modify or supersede any obligation of Lakehead or the General Partner to
restore any negative balance in their respective capital accounts (maintained
by the Company pursuant to the Company's Amended and Restated Agreement of
Limited Partnership) upon liquidation of their respective interests in the
Company.
ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable tax
laws or the rules of any securities exchange or automated quotation system on
which the Securities of such series may be listed or traded or
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<PAGE> 21
Depositary therefor or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by an authorized officer or other authorized Person
on behalf of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. Form of Face of Security.
[ Insert any legend required by the United States Internal Revenue
Code and the regulations thereunder.]
[If a Global Security,--insert legend required by Section 204 of the
Indenture] [If applicable, insert--UNLESS THIS SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION, TO THE COMPANY 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.]
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP
[TITLE OF SECURITY]
NO.__________ U.S.$____________
[CUSIP NO.__________]
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP, a Delaware limited
partnership (herein called the "Company", 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 _______________ [if the Security is to bear
interest prior to Maturity, insert--, and to pay interest thereon from
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<PAGE> 22
______________________, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on
___________________ and _________________ in each year, commencing
____________________, at the rate of _______% per annum, until the principal
hereof is paid or made available for payment [if applicable, insert--, and at
the rate of _____% per annum on any overdue principal and premium and on any
overdue installment of interest]. [If applicable, insert -- 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 ______________ or _________________ (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 business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice of which shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any 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].
[If the Security is not to bear interest prior to Maturity,
insert--The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security
shall bear interest at the rate of ____% per annum, which shall accrue from the
date of such default in payment to the date payment of such principal has been
made or duly provided for. Interest on any overdue principal shall be payable
on demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of ______% per annum, which shall accrue
from the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall also be payable on
demand.]
[If a Global Security, insert-- Payment of the principal of [(and
premium, if any)] and [if applicable, insert -- any such] interest on this
Security will be made by transfer of immediately available funds to a bank
account in _______________ designated by the Holder in such coin or
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<PAGE> 23
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [state other currency].]
[If a Definitive Security, insert -- Payment of the principal of [(and
premium, if any)] and [if applicable, insert -- any such] interest on this
Security will be made at the office or agency of the Company maintained for
that purpose in ____________________, [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] [state other currency] [or subject to any laws or
regulations applicable thereto and to the right of the Company (as provided in
the Indenture) to rescind the designation of any such Paying Agent, at the
[main] offices of _________________ in __________________ and ______________ in
__________________, or at such other offices or agencies as the Company may
designate, by [United States Dollar] [state other currency] check drawn on, or
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 at least [_____]
days prior to the payment date)] [if applicable, insert--; provided, however,
that payment of interest may be made at the option of the Company by [United
States Dollar] [state other currency] 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] [state other currency]
account maintained by the payee with a bank in The City of New York [state
other Place of Payment] (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)].]
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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP
By: Lakehead Pipe Line Company, Inc.,
Its General Partner
By:
------------------------------------------
Name:
Title:
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<PAGE> 24
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (the "Securities"), issued and to be issued in one or more series under
an Indenture dated as of September 15, 1998 (the "Indenture"), between the
Company and The Chase Manhattan Bank, 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 Company, 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 [if applicable, insert--, limited in aggregate
principal amount to U.S.$_________].
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, [if
applicable, insert-- (1) on _____________ in any year commencing with the year
_________ and ending with the year _______ through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal
amount, and (2)] at any time [if applicable, insert -- on or after
______________________], as a whole or in part, at the election of the Company,
at the following Redemption Prices (expressed as percentages of the principal
amount): If redeemed [if applicable, insert--on or before ______________, ____%
and if redeemed] during the 12-month period beginning ____________ of the years
indicated,
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable, insert--(whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such 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 Dates referred to on the face hereof, all as
provided in the Indenture.]
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<PAGE> 25
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, (1) on
____________ in any year commencing with the year ______ and ending with the
year ______________ through operation of the sinking fund for this series at
the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [if applicable, insert -- on or after
_______________], as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in
the table below: If redeemed during the 12-month period beginning
_______________________ of the years indicated,
REDEMPTION PRICE FOR REDEMPTION REDEMPTION PRICE FOR REDEMPTION
THROUGH OPERATION OF THE SINKING OTHERWISE THAN THROUGH OPERATION OF
YEAR FUND THE SINKING FUND
- ---- -------------------------------- -----------------------------------
and thereafter at a Redemption Price equal to ______% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such 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 Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert--The sinking fund for this series provides for
the redemption on ___________ in each year beginning with the year ____________
and ending with the year ______________ of [if applicable, -- not less than
$_______ ("mandatory sinking fund") and not more than] $_______ aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through [if
applicable,--mandatory] sinking fund payments may be credited against
subsequent [if applicable,--mandatory] sinking fund payments otherwise required
to be made [if applicable,--in the inverse order in which they become due].]
[If the Security is subject to redemption in part of any kind,
insert--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 applicable, insert--The Securities of this series are not
redeemable prior to Stated Maturity.]
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<PAGE> 26
[If the Security is not an Original Issue Discount Security,
insert--If an Event of Default with respect to 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.]
[If the Security is an Original Issue Discount Security, insert--If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to--insert formula for determining the
amount. Upon payment (1) of the amount of principal so declared due and
payable, and (2) of interest on any overdue principal and overdue interest, all
of the Company's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of not less than the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series to be affected (voting as
one class). The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Outstanding Securities of all
affected series (voting as one class), on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture. The Indenture permits, with certain exceptions as
therein provided, the Holders of a majority in principal amount of Securities
of any series then Outstanding to waive past defaults under the Indenture with
respect to such series 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.
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.
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<PAGE> 27
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, 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.
[If a Global Security, insert--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 thereof for
any purpose under the Indenture.]
[If a Definitive Security, insert--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 Company in [if
applicable, insert--any place where the principal of and any premium and
interest on this Security are payable] [if applicable, insert--The City of New
York[, or, subject to any laws or regulations applicable thereto and to the
right of the Company (limited as provided in the Indenture) to rescind the
designation of any such transfer agent, at the [main] offices of ____________
in ____________ and ____________ in ________________ or at such other offices
or agencies as the Company may designate]], duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company 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 the same aggregate
principal amount, will be issued to the designated transferee or transferees.]
The Securities of this series are issuable only in registered form
without coupons in denominations of U.S.$________ [state other currency] and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, 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 Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security is subordinated in right of payment to Senior Debt, to
the extent provided in the Indenture.
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<PAGE> 28
Obligations of the Company under the Indenture and the Securities
thereunder, including this Security, are non-recourse to Lakehead Pipe Line
Company, Inc. (the "General Partner") and Lakehead Pipe Line Partners, L.P.
("Lakehead") and their respective Affiliates (other than the Company), and
payable only out of cash flow and assets of the Company. 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 nor its assets nor Lakehead
nor its assets (nor any of their respective Affiliates other than the Company,
nor their respective assets) shall be liable for any of the obligations of the
Company under the Indenture or such Securities, including this Security, and
(2) no director, officer, employee, stockholder or unitholder, as such, of the
Company, the Trustee, the General Partner, Lakehead or any Affiliate of any of
the foregoing entities shall have any personal liability in respect of the
obligations of the Company under the Indenture or such Securities by reason of
his, her or its status. Notwithstanding the foregoing, nothing in this
paragraph shall be construed to modify or supersede any obligation of Lakehead
or the General Partner to restore any negative balance in their respective
capital accounts (maintained by the Company pursuant to the Company's Amended
and Restated Agreement of Limited Partnership) upon liquidation of their
respective interests in the Company.
The Indenture contains provisions that relieve the Company from the
obligation to comply with certain restrictive covenants in the Indenture and
for satisfaction and discharge at any time of the entire indebtedness upon
compliance by the Company with certain conditions set forth in the Indenture.
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.
[If a Definitive Security, insert as a separate page--
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 LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP and
does hereby irrevocably constitute and appoint __________________________
Attorney to transfer said instrument on the books of the within-named Company,
with full power of substitution in the premises.
Please Insert Social Security or
Other Identifying Number of Assignee:
------------------------------
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Dated:
----------------- --------------------------------------
(Signature)
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.]
SECTION 204. Global Securities.
Every Global Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
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.
If Securities of a series are issuable in whole or in part in the form
of one or more Global Securities, as specified as contemplated by Section 301,
then, notwithstanding Clause (10) of Section 301 and the provisions of Section
302, any Global Security shall represent such of the Outstanding Securities of
such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced or increased, as the case
may be, to reflect exchanges. Any endorsement of a Global Security to reflect
the amount, or any reduction or increase in the amount, of Outstanding
Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or
in a Company Order. Subject to the provisions of Sections 303, 304 and 305, the
Trustee shall deliver and redeliver any Global Security in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Global Security shall be in a
Company Order (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel).
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The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Global Security if such Security was never issued and
sold by the Company and the Company delivers to the Trustee the Global Security
together with a Company Order (which need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel) with regard to the reduction or
increase, as the case may be, in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
SECTION 205. Form of Trustee's Certificate and Authorization.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
As Trustee
By:
-----------------------------
Authorized Officer
ARTICLE III
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate,
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series,
(1) the form and title of the Securities of the series (which
shall distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which 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 the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
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(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest;
(4) the date or dates on which the Securities will be issued
and on which the principal of, and premium, if any, on the Securities of the
series is payable or the method of determination thereof;
(5) the rate or rates (which may be fixed or variable) at
which the Securities of the series shall bear interest, if any, or the method
of determination thereof, the date or dates from which such interest shall
accrue, or the method of determination thereof, the Interest Payment Dates on
which any such interest shall be payable and the Regular Record Date for any
interest payable on any Interest Payment Date;
(6) the dates on which interest, if any, shall be payable and
the record dates for the Interest Payment Dates;
(7) the place or places where, subject to the provisions of
Section 1002, the principal of and any premium and interest on Securities of
the series shall be payable, Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange and notices, and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(8) the period or periods, if any, 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 Company or
otherwise;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event 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) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series shall be
issuable;
(11) whether payment of principal of and premium, if any, and
interest, if any, on the Securities of the series shall be without deduction
for taxes, assessments or governmental charges paid by Holders of the series;
(12) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any Securities of
the series shall be denominated, payable,
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<PAGE> 32
redeemable or purchasable if other than the currency of the United States of
America and the manner of determining the equivalent thereof in the currency of
the United States of America for purposes of the definition of "Outstanding" in
Section 101;
(13) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined with reference to
an index, the manner in which such amounts shall be determined;
(14) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which such election is
made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(15) the right, if any, of the Company to defer payments of
interest by extending the interest payment periods and specify the duration of
such extension, the Interest Payment Dates on which such interest shall be
payable and whether and under what circumstances additional interest on amounts
deferred shall be payable;
(16) 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 502 or
the method of determination thereof;
(17) if and as applicable, that the Securities of the series
shall be issuable in whole or in part in the form of one or more Global
Securities (and whether in temporary or permanent global form) and, in such
case, the Depositary or Depositaries for such Global Security or Global
Securities and any circumstances other than those set forth in Section 305 in
which any such Global Security may be transferred to, and registered and
exchanged for Securities registered in the name of, a Person other than the
Depositary for such Global Security or a nominee thereof and in which any such
transfer may be registered;
(18) any deletions from, modifications of or additions to the
Events of Default set forth in Section 501 or the covenants of the Company set
forth in Article X pertaining to the Securities of the series;
(19) if and the terms and conditions upon which any
Securities of the series may be converted into or exchanged for securities,
which may include, without limitation, capital stock, of any class or series of
the Company or any other issuer;
(20) if other than as provided in Sections 1302 and 1303, the
terms and conditions upon which and the manner in which such series of
Securities may be defeased or discharged;
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<PAGE> 33
(21) if other than the Trustee, the identity of the Security
Registrar and any Paying Agent;
(22) any restrictions or other provisions with respect to the
transfer or exchange of the Securities; and
(23) any other terms of the Securities of the series (which
terms shall not be inconsistent with the provisions of this Indenture, except
as permitted by Section 901(4)).
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 the Board Resolution referred to above and (subject to Section 303)
set forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent
of the Holders, for increases in the aggregate principal amount of such series
of Securities and issuances of additional Securities of such series or for the
establishment of additional terms with respect to the Securities of such
series.
If any of the terms of the series are established by action taken by
or pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by an authorized officer or other authorized person
of the General Partner on behalf of the Company and delivered to the Trustee at
or prior to the delivery of the Officers' Certificate setting forth, or
providing the manner for determining, the terms of the series.
With respect to Securities of a series subject to a Periodic Offering,
such Board Resolution or Officers' Certificate may provide general terms for
Securities of such series and provide either that the specific terms of
particular Securities of such series shall be specified in a Company Order, or
that such terms shall be determined by the Company, or one or more of the
Company's agents designated in an Officers' Certificate, in accordance with a
Company Order.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered
form without coupons in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by the
Chairman of the Board, Chief Executive Officer, Chief Financial Officer,
President, Chief Accountant or any Vice President
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<PAGE> 34
of the General Partner and need not be attested. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the General Partner shall bind the
Company, 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.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities; provided, however, that in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, thereafter promptly confirmed in
writing) acceptable to the Trustee as may be specified by or pursuant to a
Company Order delivered to the Trustee prior to the time of the first
authentication of Securities of such series. If the form or terms of the
Securities of the series have been established in or pursuant to one or more
Board Resolutions as permitted by Sections 201 and 301, 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 601) shall be fully protected in relying upon, an Opinion
of Counsel stating,
(1) if the form or forms of such Securities have been
established by or pursuant to Board Resolution as permitted by Section 201,
that such form or forms have been established in conformity with the provisions
of this Indenture;
(2) if the terms of such Securities have been, or in the case
of Securities of a series offered in a Periodic Offering, will be, established
by or pursuant to a Board Resolution as permitted by Section 301, that such
terms have been, or in the case of Securities of a series offered in a Periodic
Offering, will be, established in conformity with the provisions of this
Indenture, subject, in the case of Securities of a series offered in a Periodic
Offering, to any conditions specified in such Opinion of Counsel; and
(3) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
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<PAGE> 35
If such form or forms or terms have been so established, 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 which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any of such
Securities, the form or forms and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and the
other documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309 for all purposes of this Indenture, such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of Definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the Definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause Definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of Definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for Definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or
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agency of the Company maintained pursuant to Section 1002 for the purpose of
exchanges of Securities of such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor one or more Definitive Securities of the same series, of
any authorized denominations and of a like aggregate principal amount and
tenor. Until so exchanged the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as Definitive
Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency of the
Company in The City of New York a register (the register maintained in such
office or in any other office or agency of the Company in a Place of Payment
being herein sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Company shall, prior to the issuance of any Securities hereunder, appoint the
Trustee as the initial "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided and its corporate
trust office which, at the date hereof, is located at 450 West 33rd Street,
15th Floor, New York, New York 10001-2697, as the initial office or agency in
The City of New York where the Security Register will be maintained. The
Company may at any time replace such Security Registrar, change such office or
agency or act as its own Security Registrar. The Company will give prompt
written notice to the Trustee of any change of the Security Registrar or of the
location of such office or agency.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company maintained pursuant to Section
1002 for such purpose, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series (except a Global
Security) may be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written
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instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304 or 1107 not involving any transfer.
Neither the Trustee nor the Company shall be required (1) to issue,
register the transfer of or exchange Securities of any series (or of any series
and specified tenor, as the case may be) during a period beginning at the
opening of business 15 days before the day of mailing of a notice of redemption
of Securities of that series selected for redemption under Section 1103 and
ending at the close of business on the day of such mailing, or (2) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding any other provision in this Indenture and except as
otherwise specified as contemplated by Section 301, no Global Security may be
transferred to, or registered or exchanged for Securities registered in the
name of, any Person other than the Depositary for such Global Security or any
nominee thereof, and no such transfer may be registered, except as provided in
this paragraph. Every Security authenticated and delivered upon registration or
transfer of, or in exchange for or in lieu of, a Global Security shall be a
Global Security, except as provided in this paragraph. If (1) (A) the
Depositary for a Global Security notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Security or ceases to be a
clearing agency registered under the Exchange Act, and (B) a successor
Depositary is not appointed by the Company within 90 days, (2) an Event of
Default has occurred and is continuing with respect to the Securities of such
series and the Security Registrar has received a request from the Depositary to
issue certificated securities in lieu of all or a portion of the Global
Securities of such series (in which case the Company shall deliver certificated
securities within 30 days of such request) or (3) the Company determines in its
sole discretion that Securities of a series issued in global form shall no
longer be represented by a Global Security, then such Global Security may be
exchanged by such Depositary for Definitive Securities of the same series, of
any authorized denomination and of a like aggregate principal amount and tenor,
registered in the names of, and the transfer of such Global Security or portion
thereof may be registered to, such Persons as such Depositary shall direct.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, together with
such security or indemnity as may be required by the Company or the Trustee to
save each of them and any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
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If there shall be delivered to the Company and the Trustee (1)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (2) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding. If, after the
delivery of such new Security, a bona fide purchaser of the original Security
in lieu of which such new Security was issued presents for payment or
registration such original Security, the Trustee shall be entitled to recover
such new Security from the party to whom it was delivered or any party taking
therefrom, except a bona fide purchaser, and shall be entitled to recover upon
the security or indemnity provided therefor to the extent of any loss, damage,
cost or expense incurred by the Company and the Trustee in connection
therewith.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
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.
Every new Security of any series issued pursuant to this Section in
exchange for any mutilated Security or in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Security shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
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Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (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 Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Security of
such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, 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 Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following Clause
(2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange or automated quotation system on
which such Securities may be listed or traded, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment shall
be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security, shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
For each series of Securities, the Company shall, prior to 10:00 a.m.
(New York City time) on each payment date for principal and premium, if any,
and interest, if any, deposit with the Trustee
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money in immediately available funds sufficient to make cash payments due on
the applicable payment date.
SECTION 308. Persons Deemed Owners.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security is registered
as the owner of such Security for the purpose of receiving payment of principal
of and any premium and (subject to Sections 305 and 307) any interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the owner
of such Global Security for all purposes whatsoever. None of the Company, the
Trustee nor any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of in accordance with its
customary procedures, and the Trustee shall thereafter deliver to the Company a
certificate with respect to such disposition.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months and interest on
the Securities of each series for any partial period shall be computed
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on the basis of a 360-day year of twelve 30-day months and the number of days
elapsed in any partial month.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (in
addition to the other identification numbers printed on the Securities), and,
if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such "CUSIP" numbers either
as printed on the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Securities, and any such redemption shall not be affected by any defect in
or omission of such "CUSIP" numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of any series (except as to any surviving
rights of registration of transfer or exchange of such Securities herein
expressly provided for), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to such Securities, when
(1) either
(A) all such Securities theretofore authenticated
and delivered (other than (i) such Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 306, and
(ii) such Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their
Stated Maturity within one year, or
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(iii) are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
for this purpose an amount of money in the currency or currency units in which
such Securities are payable sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to such Securities; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to Securities of any series, (x) the obligations of the Company to the
Trustee under Section 607, the obligations of the Trustee to any Authenticating
Agent under Section 614 and the right of the Trustee to resign under Section
610 shall survive, and (y) if money shall have been deposited with the Trustee
pursuant to subclause (B) of Clause (1) of this Section, the obligations of the
Company and/or the Trustee under Sections 402, 606, 701 and 1002 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium
and interest for whose payment such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be
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voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such default
for a period of 30 days (whether or not such payment is prohibited by the
provisions of Article XIV hereof); or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity (whether or not such
payment is prohibited by the provisions of Article XIV hereof); or
(3) default in the performance, or breach, of any term,
covenant or warranty of the Company in this Indenture (other than a term,
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of Securities other
than that series), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of that 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; or
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case, (B) consents to the entry of any
order for relief against it in an involuntary case, (C) consents to the
appointment of a Custodian of it or for all or substantially all of its
property, or (D) makes a general assignment for the benefit of its creditors;
or
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (A) is for relief against the Company in
an involuntary case, (B) appoints a Custodian of the Company or for all or
substantially all of its property, or (C) orders the liquidation of the
Company; and the order or decree remains unstayed and in effect for 90 days; or
(6) any other Event of Default provided as contemplated by
Section 301 with respect to Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of, and accrued but unpaid interest, if any, on all of the Securities
of that series to be due and payable immediately, by
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a notice in writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount (or specified amount) shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series
which have become due otherwise than by such declaration of acceleration and
any interest thereon at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates prescribed therefor
in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that
series which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default continues
for a period of 30 days (whether or not such payment is prohibited by the
provisions of Article XIV hereof), or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof (whether or not such
payment is prohibited by the provisions of Article XIV hereof),
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the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company or any
other obligor upon the Securities, their property or their creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
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SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such 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 the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money or property collected or to be applied by the Trustee
pursuant to this Article shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money or
property on account of principal or any premium or interest, upon presentation
of the Securities and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: Subject to Article XIV, to the payment of the amounts then due
and unpaid for principal of and any premium and interest on the Securities 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; and
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice,
request and offer of security or indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Sections
305 and 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
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SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series; provided, however, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction; and
(3) subject to the provisions of Section 601, the Trustee
shall have the right to decline to follow any such direction if the Trustee in
good faith shall determine that the proceeding so directed would involve the
Trustee in personal liability or would otherwise be contrary to applicable law.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except
(1) a continuing default in the payment of the principal of
or any premium or interest on any Security of such series, or
(2) a default in respect of a covenant or provision hereof
which under Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
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SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided, however, that neither this Section nor the
Trust Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company. This Section does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 607 or a suit by Holders of more than 10% in
principal amount of the Securities (taken as a whole).
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE VI
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or security or indemnity satisfactory to
it against such risk or liability is not reasonably assured to it. Whether or
not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a Default occurs and is continuing with respect to the Securities
of any series, the Trustee shall, within 90 days after it occurs, transmit, in
the manner and to the extent provided in Section 313(c) of the Trust Indenture
Act, notice of all uncured or unwaived Defaults known to it; provided, however,
that, except in the case of a Default in payment on the Securities of any
series, the Trustee may withhold the notice if it determines in good faith that
withholding such notice is in the interests
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of Holders of Securities of such series; provided, further, however, that, in
the case of any default or breach of the character specified in Section 501(3)
with respect to the Securities of such series, no such notice to Holders shall
be given until at least 60 days after the occurrence thereof.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely on and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(2) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Company Request or
Company Order (other than delivery of any Security to the Trustee for
authentication and delivery pursuant to Section 303, which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Directors shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(4) 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, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may, without obligation to do so, make such
further inquiry or investigation into such facts or matters as it may see fit;
(7) 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
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responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder; and
(8) the Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized
to sign an Officers' Certificate, including any person specified as so
authorized in any such certificate previously delivered and not superseded.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. Neither the Trustee nor any
Authenticating Agent makes any representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its
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agents and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee and to pay or reimburse the Trustee for 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.
Without limiting any rights available to the Trustee under applicable
law, when the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(4) or Section 501(5), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of
administration under any applicable Bankruptcy Law.
The provisions of this Section shall survive the satisfaction and
discharge of this Indenture and the defeasance of the Securities.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one or more Trustees hereunder with
respect to the Securities of each series, at least one of which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus required by the Trust Indenture Act. If such
Person publishes reports of condition at least annually, pursuant to law or to
the requirements of a supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving 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 the Securities of such series.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (A) the Company, acting
pursuant to the authority of a Board Resolution, may remove the Trustee with
respect to all Securities, or (B) subject to Section 514, any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the
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Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the manner provided in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(1) 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 Company 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 Company 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.
(2) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, 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 (A) 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, (B) if the retiring Trustee is not retiring with
respect to all Securities, 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 (C) 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
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that nothing herein or in such supplemental indenture shall constitute such
Trustees as co-trustees of the same trust and 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 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 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 Company
or any successor Trustee, such retiring Trustee shall, upon payment of its
charges, duly assign, transfer and deliver to such successor Trustee all
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.
(3) Upon request of any such successor Trustee, the Company
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 (1) or (2) of this Section, as the case may be.
(4) 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.
SECTION 612. 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 all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. 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 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
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SECTION 614. Appointment of Authenticating Agent.
The Trustee (upon notice to the Company) may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue (in accordance with procedures acceptable to
the Trustee) and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, 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. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of such Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the execution or filing of
any paper or any further act on the part of the Trustee or such Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
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Except with respect to an Authenticating Agent appointed at the
request of the Company, the Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section,
and the Trustee shall be entitled to be reimbursed by the Company for such
payments, subject to the provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
As Trustee
By:
-------------------------------------
As Authenticating Agent
By:
-------------------------------------
Authorized Officer
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than May 15 and November 15 in
each year, a list for each series of Securities, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Securities
of such series as of the preceding April 30 or October 31, as the case may be,
and
(2) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company 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 if and so long as the Trustee shall be the Security
Registrar for Securities of a series, no such list need be furnished with
respect to such series of Securities.
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SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than July 15 in each calendar year
with respect to the 12-month period ending on the previous May 15, commencing
May 15, 1999.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such portions
of any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company is not required to file information, documents or reports pursuant
to either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and
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registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and (2)
of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not 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 Company is the surviving
entity, or (B) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by sale or transfer, or which
leases, the properties and assets of the Company as, or substantially as, an
entirety shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form reasonably satisfactory to the Trustee,
the due and punctual payment of the principal of and any premium and interest
on all the Securities and the performance or observance of every covenant and
condition of this Indenture on the part of the Company to be performed or
observed;
(2) the surviving entity or successor Person is a Person
organized and existing under the laws of the U.S., any State thereof or the
District of Columbia;
(3) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, transfer or lease and the supplemental indenture required in
connection with such transaction comply with this Article and
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that all conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any sale, transfer or lease of the properties and
assets of the Company as, or substantially as, an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which
the Company is merged or to which such sale, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named originally as the Company herein, 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.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities, the Company and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another Person to the
Company under this Indenture and the Securities and the assumption by such
successor Person of the obligations of the Company hereunder;
(2) to add covenants and Events of Default for the benefit of
the Holders of all or any series of such Securities or to surrender any right
or power conferred by this Indenture upon the Company;
(3) to add to, change or eliminate any of the provisions of
this Indenture, provided that any such addition, change or elimination shall
become effective only after there are no such Securities of any series entitled
to the benefit of such provision outstanding;
(4) to establish the forms or terms of the Securities of any
series issued thereunder;
(5) to cure any ambiguity or correct any inconsistency in
this Indenture;
(6) to evidence the acceptance of appointment by a successor
Trustee;
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(7) to qualify this Indenture under the Trust Indenture Act;
(8) to provide for uncertificated securities in addition to
certificated securities;
(9) to supplement any provisions of this Indenture necessary
to permit or facilitate the defeasance and discharge of any series of
Securities, provided that such action does not adversely affect the interests
of the Holders of Securities of such series or any other series; and
(10) to comply with the rules or regulations of any
securities exchange or automated quotation system on which any of the
Securities may be listed or traded.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of all Outstanding Securities affected by such
supplemental indenture (voting as one class), the Company and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture, or modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided that the
Company and the Trustee may not, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest, if any, on, any Security, or reduce
the principal amount thereof or premium, if any, on or the rate of interest
thereon or modify the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the Holders or adversely
affect any right to convert or exchange any Security into any other security,
or alter the method of computation of interest;
(2) reduce the percentage in principal amount of Securities
required for any such supplemental indenture or for any waiver provided for in
this Indenture;
(3) change the Company's obligation to maintain an office or
agency for payment of Securities and the other matters specified herein;
(4) impair the right to institute suit for the enforcement of
any payment of principal of, premium, if any, or interest on, any Security;
(5) modify the provisions of this Indenture with respect to
the subordination of any Security in a manner adverse to the Holder thereof; or
(6) modify any of the provisions of this Indenture relating
to the execution of supplemental indentures with the consent of Holders of
Securities which are discussed in this Section or modify any provisions
relating to the waiver by Holders of Securities of past defaults and certain
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covenants, except to increase any required percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Officers' Certificate and an Opinion of Counsel stating that the execution
of such supplemental indenture is authorized or permitted by this Indenture.
The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed
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by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency 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 Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Except as otherwise specified with respect to a series of Securities
as contemplated by Section 301, the Company hereby initially designates as the
Place of Payment for each series of Securities The City and State of New York,
and initially appoints the Trustee at its Corporate Trust Office as the
Company's office or agency for each such purpose in such city.
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SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) hold all sums held by it for
the payment of the principal of (and premium, if any) or interest, if any, on
Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided; (2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest, if any, on the
Securities of that series; and (3) during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
held in trust by such Paying Agent for payment in respect of the Securities of
that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company 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.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be
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published once, in an Authorized Newspaper in each Place of Payment with
respect to such series, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 150 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signer thereof
the Company is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 1005. Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if it
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company.
SECTION 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 1005, with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in aggregate principal amount of the Outstanding Securities
of all affected series (voting as one class) shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
A waiver which changes or eliminates any term, provision or condition
of this Indenture which has expressly been included solely for the benefit of
one or more particular series of Securities, or which modifies the rights of
the Holders of Securities of such series with respect to such term, provision
or condition, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series.
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ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall,
not less than 30 nor more than 60 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of
the Securities to be redeemed. In the case of any redemption of Securities (1)
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, or (2) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 45 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by lottery for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
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SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail (if
international mail, by air mail), postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date, to each Holder of Securities to
be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
and of a specified tenor are to be redeemed, the identification (and, in the
case of partial redemption of any Securities, the principal amounts) of the
particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company. If the Company requests the Trustee to provide notice
of redemption to the Holders, the Company will make such request five days
prior to the date on which notice of redemption is to be given.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price
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and accrued interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 301, installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 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 1202. 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.
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SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company 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.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 and stating the basis for such credit and that such Securities
have not been previously so credited, and will also 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 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE XIII
DEFEASANCE
SECTION 1301. Applicability of Article.
The provisions of this Article shall be applicable to each series of
Securities except as otherwise specified as contemplated by Section 301 for
Securities of such series.
SECTION 1302. Legal Defeasance.
In addition to discharge of the Indenture pursuant to Section 401, the
Company shall be deemed to have paid and discharged the entire indebtedness on
all the Securities of such a series on the 91st day after the date of the
deposit referred to in Clause (1) below, and the provisions of this
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Indenture with respect to the Securities of such series shall no longer be in
effect (except as to (i) rights of registration of transfer and exchange of
Securities of such series and the Company's right of optional redemption, if
any, (ii) substitution of mutilated, destroyed, lost or stolen Securities,
(iii) rights of holders of Securities to receive payments of principal thereof
and interest thereon, upon the original stated due dates therefor or on the
specified redemption dates therefor (but not upon acceleration), and remaining
rights of the holders to receive mandatory sinking fund payments, if any, (iv)
the rights, obligations, duties and immunities of the Trustee hereunder, and
the Company's obligations in connection therewith (including, but not limited
to, Section 607) (v) the rights, if any, to convert or exchange the Securities
of such series, (vi) the rights of the holders of Securities of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them, and (vii) the obligations of the Company under
Section 1002), and the Trustee, at the expense of the Company, shall, upon a
Company Request, execute proper instruments acknowledging the same, if the
conditions set forth below are satisfied (hereinafter, "defeasance"):
(1) The Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust, for the purposes of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of such series (A) cash
in an amount, or (B) in the case of any series of Securities the payments on
which may only be made in legal coin or currency of the United States, U.S.
Government Obligations, maturing as to principal and interest at such times and
in such amounts as will insure the availability of cash, or (C) a combination
thereof, certified to be 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 (i) the principal and interest and
premium, if any, on all Securities of such series on each date that such
principal, interest or premium, if any, is due and payable or on any Redemption
Date established pursuant to Clause (3) below, and (ii) any mandatory sinking
fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such series;
(2) The Company has delivered to the Trustee an Opinion of
Counsel based on the fact that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or (B) since the date
hereof, there has been a change in the applicable federal income tax law, in
either case to the effect that, and such opinion shall confirm that, the
Holders of the Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to federal income tax on the same amount and
in the same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred;
(3) If the Securities are to be redeemed prior to Stated
Maturity (other than from mandatory sinking fund payments or analogous
payments), notice of such redemption shall have been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee shall have
been made;
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(4) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(5) Such defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming
all Securities are in default within the meaning of such Act);
(6) Such defeasance shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument to which
the Company is a party or by which it is bound;
(7) Such defeasance shall not result in the trust arising
from such deposit constituting an investment company within the meaning of the
Investment Company Act of 1940, as amended, unless such trust shall be
registered under such Act or exempt from registration thereunder; and
(8) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
provision have been complied with.
For this purpose, such defeasance means that the Company and any other
obligor upon the Securities of such series shall be deemed to have paid and
discharged the entire debt represented by the Securities of such series, which
shall thereafter be deemed to be "Outstanding" only for the purposes of Section
1304 and the rights and obligations referred to in Clauses (i) through (viii),
inclusive, of the first paragraph of this Section, and to have satisfied all
its other obligations under the Securities of such series and this Indenture
insofar as the Securities of such series are concerned.
SECTION 1303. Covenant Defeasance.
The Company and any other obligor, if any, shall be released on the
91st day after the date of the deposit referred to in Clause (1) below from its
obligations under Sections 704, 801 and 1005 with respect to the Securities of
any series on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and the Securities of such series shall
thereafter be deemed to be not "Outstanding" for the purposes of any request,
demand, authorization, direction, notice, waiver, consent or declaration or
other action or Act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed Outstanding for
all other purposes hereunder. For this purpose, such covenant defeasance means
that, with respect to the Securities of such series, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section, whether directly or indirectly by
reason of any reference elsewhere herein to such Section or by reason of any
reference in such Section to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 501, but, except as specified above, the remainder of
this Indenture and the Securities of such series shall be unaffected thereby.
The following shall be the conditions to application of this Section 1303:
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(1) The Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of such series, (A)
cash in an amount, or (B) in the case of any series of Securities the payments
on which may only be made in legal coin or currency of the United States, U.S.
Government Obligations, maturing as to principal and interest at such times and
in such amounts as will insure the availability of cash, or (C) 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 (i) the principal and interest and premium, if
any, on all Securities of such series on each date that such principal,
interest or premium, if any, is due and payable or on any Redemption Date
established pursuant to Clause (2) below, and (ii) any mandatory sinking fund
payments on the day on which such payments are due and payable in accordance
with the terms of the Indenture and the Securities of such series;
(2) If the Securities are to be redeemed prior to Stated
Maturity (other than from mandatory sinking fund payments or analogous
payments), notice of such redemption shall have been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee shall have
been made;
(3) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(4) The Company has delivered to the Trustee an Opinion of
Counsel which shall confirm that the Holders of the Securities of such series
will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit and covenant defeasance and will be subject to federal
income tax on the same amount and in the same manner and at the same time as
would have been the case if such deposit and covenant defeasance had not
occurred;
(5) Such covenant defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act);
(6) Such covenant defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or instrument
to which the Company is a party or by which it is bound;
(7) Such covenant defeasance shall not result in the trust
arising from such deposit constituting an investment company within the meaning
of the Investment Company Act of 1940, as amended, unless such trust shall be
registered under such Act or exempt from registration thereunder; and
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(8) The Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent provided for relating to the
covenant defeasance contemplated by this provision have been complied with.
SECTION 1304. Application by Trustee of Funds Deposited for Payment of
Securities.
Subject to the provisions of the last paragraph of Section 1003, all
moneys or U.S. Government Obligations deposited with the Trustee pursuant to
Section 1302 or 1303 (and all funds earned on such moneys or U.S. Government
Obligations) shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent), to the Holders of the particular Securities of such series for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest;
but such money need not be segregated from other funds except to the extent
required by law. Subject to Sections 1302 and 1303, the Trustee shall promptly
pay to the Company upon request any excess moneys held by it at any time.
SECTION 1305. Repayment to Company.
The Trustee and any Paying Agent promptly shall pay or return to the
Company upon Company Request any money and U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of and
any interest on the Securities of any series for which money or U.S. Government
Obligations have been deposited pursuant to Section 1302 or 1303.
The provisions of the last paragraph of Section 1003 shall apply to
any money held by the Trustee or any Paying Agent under this Article that
remains unclaimed for two years after the Maturity of any series of Securities
for which money or U.S. Government Obligations have been deposited pursuant to
Section 1302 or 1303.
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 1401. Securities Subordinated to Senior Debt.
(1) The Company, for itself, its successors and assigns,
covenants and agrees, and each Holder of Securities, by his acceptance thereof,
likewise covenants and agrees, that the payment of the principal of (and
premium, if any), and interest on each and all of the Securities is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth,
in right of payment to the prior payment in full of all Senior Debt of the
Company.
(2) If (A) the Company shall default in the payment of any
principal of, premium, if any, or interest, if any, on any Senior Debt of the
Company when the same becomes due and
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payable, whether at maturity or at a date fixed for prepayment or by
declaration of acceleration or otherwise, or (B) any other default shall occur
with respect to Senior Debt of the Company and the maturity of such Senior Debt
has been accelerated in accordance with its terms, then, upon written notice of
such default to the Company and the Trustee by the holders of Senior Debt of
the Company or any trustee therefor, unless and until, in either case, the
default has been cured or waived or has ceased to exist, or, any such
acceleration has been rescinded or such Senior Debt has been paid in full, no
direct or indirect payment (in cash, property, securities, by set-off or
otherwise) shall be made or agreed to be made on account of the principal of,
premium, if any, or interest, if any, on any of the Securities, or in respect
of any redemption, retirement, purchase or other acquisition of any of the
Securities other than those made in capital stock of the Company (or cash in
lieu of fractional shares thereof).
(3) If any default occurs (other than a default described in
paragraph (2) of this Section 1401) under the Senior Debt of the Company,
pursuant to which the maturity thereof may be accelerated immediately without
further notice (except such notice as may be required to effect such
acceleration) or at the expiration of any applicable grace periods (a "Senior
Nonmonetary Default"), then, upon the receipt by the Company and the Trustee of
written notice thereof (a "Payment Blockage Notice") from or on behalf of
holders of such Senior Debt of the Company specifying an election to prohibit
such payment and other action by the Company in accordance with the following
provisions of this paragraph (3), the Company may not make any payment or take
any other action that would be prohibited by paragraph (2) of this Section 1401
during the period (the "Payment Blockage Period") commencing on the date of
receipt of such Payment Blockage Notice and ending on the earlier of (A) the
date, if any, on which the holders of such Senior Debt or their representative
notifies the Trustee that such Senior Nonmonetary Default is cured or waived or
ceases to exist or the Senior Debt to which such Senior Nonmonetary Default
relates is discharged or (B) the 179th day after the date of receipt of such
Payment Blockage Notice. Notwithstanding the provisions described in the
immediately preceding sentence, the Company may resume payments on the
Securities following such Payment Blockage Period.
SECTION 1402. Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities.
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company, whether in
bankruptcy, insolvency, reorganization or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Company or otherwise (subject to the power of a court of
competent jurisdiction to make other equitable provision reflecting the rights
conferred in this Indenture upon the Senior Debt of the Company and the holders
thereof with respect to the Securities and the Holders thereof by a lawful plan
or reorganization under applicable bankruptcy law),
(1) the holders of all Senior Debt of the Company shall be
entitled to receive payment in full of the principal thereof, premium, if any,
interest, and any interest thereon, due
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thereon before the Holders of the Securities are entitled to receive any
payment upon the principal, premium, interest of or on the Securities or
interest on overdue amounts thereof; and
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to which the
Holders of the Securities or the Trustee (on behalf of the Holders) would be
entitled except for the provisions of this Article XIV shall be paid by the
liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Senior Debt of the Company or
their representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Debt may
have been issued, ratably according to the aggregate amounts remaining unpaid
on account of the principal of, premium, if any, interest, and any interest
thereon, on the Senior Debt of the Company held or represented by each, to the
extent necessary to make payment in full of all Senior Debt of the Company
remaining unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Senior Debt; and
(3) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, shall be received by the Trustee (on
behalf of the Holders) or the Holders of the Securities before all Senior Debt
of the Company is paid in full, such payment or distribution shall be paid over
to the holders of such Senior Debt or their representative or representatives
or to the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Debt may have been issued, ratably as aforesaid,
for application to the payment of all Senior Debt remaining unpaid until all
such Senior Debt shall have been paid in full, after giving effect to any
concurrent payment or distribution to the holders of such Senior Debt.
Subject to the payment in full of all Senior Debt of the Company, the
Holders of the Securities shall be subrogated to the rights of the holders of
such Senior Debt to receive payments or distributions of cash, property or
securities of the Company applicable to Senior Debt of the Company until the
principal, premium, interest, and any interest thereon, of or on the Securities
shall be paid in full and no such payments or distributions to the Holders of
the Securities of cash, property or securities otherwise distributable to the
Senior Debt of the Company shall, as between the Company, its creditors other
than the holders of Senior Debt of the Company, and the Holders of the
Securities, be deemed to be a payment by the Company to or on account of the
Securities. It is understood that the provisions of this Article XIV are and
are intended solely for the purpose of defining the relative rights of the
Holders of the Securities, on the one hand, and the holders of Senior Debt of
the Company, on the other hand. Nothing contained in this Article XIV or
elsewhere in this Indenture or in the Securities is intended to or shall
impair, as between the Company, its creditors other than the holders of Senior
Debt of the Company, and the Holders of the Securities, the obligation of the
Company, which is unconditional and absolute, to pay to the Holders of the
Securities the principal, premium, interest, and any interest thereon, of or on
the Securities as and when the same shall become due and payable in accordance
with their terms, or to affect the relative rights of the Holders of the
Securities and creditors of the Company other than the holders of Senior
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Debt of the Company, nor shall anything herein or in the Securities prevent the
Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article XIV of the holders of such Senior Debt in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy. Upon any payment or distribution of assets of the
Company referred to in this Article XIV, the Trustee shall be entitled to
conclusively rely upon a certificate of the liquidating trustee or agent or
other person making any distribution to the Trustee for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of Senior Debt of the Company and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon, and all other facts pertinent thereto or to this Article
XIV.
The Trustee, however, shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt of the Company. The Trustee shall not be liable to
any such holder if it shall pay over or distribute to or on behalf of Holders
of Securities or the Company moneys or assets to which any holder of Senior
Debt of the Company shall be entitled by virtue of this Article XIV. The rights
and claims of the Trustee under Section 607 shall not be subject to the
provisions of this Article XIV.
If the Trustee or any Holder of Securities does not file a proper
claim or proof of debt in the form required in any proceeding referred to above
prior to 30 days before the expiration of the time to file such claim in such
proceeding, then the holder of any Senior Debt of the Company is hereby
authorized, and has the right, to file an appropriate claim or claims for or on
behalf of such Holder of Securities.
SECTION 1403. Payments on Securities Permitted.
Nothing contained in this Indenture or in any of the Securities shall
(1) affect the obligation of the Company to make, or prevent the Company from
making, at any time except as provided in Sections 1401 and 1402, payments of
principal, premium, interest, and any interest thereon, of or on the Securities
or (2) prevent the application by the Trustee of any moneys deposited with it
hereunder to the payment of or on account of the principal, premium, interest
or other amounts, and any interest thereon, of or on the Securities unless the
Trustee shall have received at its Corporate Trust Office written notice of any
event prohibiting the making of such payment two Business Days (A) prior to the
date fixed for such payment, (B) prior to the execution of an instrument to
satisfy and discharge this Indenture based upon the deposit of funds under
Section 401(1)(b), (C) prior to the execution of an instrument acknowledging
the defeasance of such Securities pursuant to Section 1302 or (D) prior to any
deposit pursuant to clause (1) of Section 1303 with respect to such Securities.
SECTION 1404. Authorization of Holders of Securities to Trustee to Effect
Subordination.
Each Holder of Securities by his acceptance thereof, whether upon
original issue or upon transfer or assignment, authorizes and directs the
Trustee on his behalf to take such action as may
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be necessary or appropriate to effectuate the subordination as provided in this
Article XIV and appoints the Trustee his attorney-in-fact for any and all such
purposes.
SECTION 1405. Notices to Trustee.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee located at the Corporate Trust Office of the Trustee of any fact
known to the Company which would prevent the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article XIV or any other provisions of this Indenture, neither the Trustee nor
any Paying Agent (other than the Company) shall be charged with knowledge of
the existence of any Senior Debt of the Company or of any event which would
prohibit the making of any payment of moneys to or by the Trustee or such
Paying Agent, unless and until the Trustee or such Paying Agent shall have
received (in the case of the Trustee, at its Corporate Trust Office) written
notice thereof from the Company or from the holder of any Senior Debt of the
Company or from the trustee for or representative of any Senior Debt of the
Company together with proof satisfactory to the Trustee of such holding of such
Senior Debt or of the authority of such trustee or representative; provided,
however, that if at least two Business Days prior to the date upon which by the
terms hereof any such moneys may become payable for any purpose (including,
without limitation, the payment of the principal, premium, interest, of or on
any Security, or any interest thereon) or the date on which the Trustee shall
execute an instrument acknowledging satisfaction and discharge of this
Indenture or the defeasance of Securities pursuant to Section 1302 or the date
on which a deposit pursuant to clause (1) of Section 1303 is made, the Trustee
shall not have received with respect to such moneys or the moneys deposited
with it as a condition to such satisfaction and discharge or defeasance the
notice provided for in this Section 1405, then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority
to receive such moneys and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary, which may be
received by it on or after such two Business Days prior to such date. The
Trustee shall be entitled to conclusively rely on the delivery to it of a
written notice by a person representing himself to be a holder of Senior Debt
of the Company (or a trustee or representative on behalf of such holder) to
establish that such a notice has been given by a holder of Senior Debt of the
Company or a trustee or representative on behalf of any such holder. In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior Debt of
the Company to participate in any payment or distribution pursuant to this
Article XIV, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt of the
Company held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article XIV and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
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SECTION 1406. Trustee as Holder of Senior Debt.
The Trustee shall be entitled to all the rights set forth in this
Article XIV in respect of any Senior Debt of the Company at any time held by it
to the same extent as any other holder of Senior Debt of the Company and
nothing in this Indenture shall be construed to deprive the Trustee of any of
its rights as such holder.
SECTION 1407. Modification of Terms of Senior Debt.
Any renewal or extension of the time of payment of any Senior Debt of
the Company or the exercise by the holders of Senior Debt of the Company of any
of their rights under any instrument creating or evidencing such Senior Debt,
including without limitation the waiver of default thereunder, may be made or
done all without notice to or assent from Holders of the Securities or the
Trustee.
No compromise, alteration, amendment, modification, extension, renewal
or other change of, or waiver, consent or other action in respect of, any
liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Debt of the Company is outstanding or of such Senior Debt, whether or
not such release is in accordance with the provisions of any applicable
document, shall in any way alter or affect any of the provisions of this
Article XIV or of the Securities relating to the subordination thereof.
This instrument may be executed with counterpart signature pages or in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP
By: Lakehead Pipe Line Company, Inc.,
Its General Partner
By: /s/ MARK A. MAKI
------------------------------------------
Name: Mark A. Maki
Title: Chief Accountant
THE CHASE MANHATTAN BANK
By: /s/ VALERIE DUNBAR
------------------------------------------
Name: Valerie Dunbar
Title: Authorized Officer
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