<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
(Mark One)
x Quarterly report pursuant to Section 13 or 15(d) of the Securities
----- Exchange Act of 1934
For the quarterly period ended March 31, 1994 or
Transition report pursuant to Section 13 or 15(d) of the Securities
- ------ Exchange Act of 1934
For the transition period from to
--------------- ---------------
Commission file number 1-9356
BUCKEYE PARTNERS, L.P.
----------------------
(Exact name of registrant as specified in its charter)
Delaware 23-2432497
- ------------------------------- --------------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
3900 Hamilton Boulevard
Allentown, PA 18103
- ------------------------------- --------------------
(Address of principal executive (Zip Code)
offices)
Registrant's telephone number, including area code: 610-820-8300
--------------------
Not Applicable
- ------------------------------------------------------------------------------
(Former name, former address and former fiscal year, if changed since last
report).
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes x No
----- -----
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Class Outstanding at April 8, 1994
- ------------------------- ----------------------------
Limited Partnership Units 12,000,000 Units
<PAGE>
BUCKEYE PARTNERS, L. P.
INDEX
<TABLE>
<CAPTION>
Page No.
--------
<S> <C>
Part I. Financial Information
- ------------------------------
Item 1. Consolidated Financial Statements
Consolidated Statements of Income 1
for the three months ended March 31,
1994 and 1993
Consolidated Balance Sheets 2
March 31, 1994 and December 31, 1993
Consolidated Statements of Cash Flows 3
for the three months ended March 31,
1994 and 1993
Notes to Consolidated Financial Statements 4-6
Item 2. Management's Discussion and Analysis 7-8
of Financial Condition and Results
of Operations
Part II. Other Information
- ---------------------------
Item 1. Legal Proceedings 9
Item 5. Other Information (Rate Regulation Matters)
Item 6. Exhibits and Reports on Form 8-K
</TABLE>
i
<PAGE>
Part I - Financial Information
Item 1. Consolidated Financial Statements
- ------------------------------------------
Buckeye Partners, L.P.
Consolidated Statements of Income
(In thousands, except per Unit amounts)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
---------------------
1994 1993
---- ----
<S> <C> <C>
Revenue $45,619 $41,429
------- -------
Costs and expenses
Operating expenses 22,001 20,264
Depreciation and amortization 2,812 2,754
General and administrative expenses 2,605 2,677
------- -------
Total costs and expenses 27,418 25,695
------- -------
Operating income 18,201 15,734
------- -------
Other income (expenses)
Interest income 220 164
Interest and debt expense (6,445) (6,466)
Minority interests and other (192) (94)
------- -------
Total other income (expenses) (6,417) (6,396)
------- -------
Income from continuing operations
before extraordinary charge 11,784 9,338
Loss from discontinued operations - (127)
Extraordinary charge on early extinguishment
of debt (1,569) -
------- -------
Net income $10,215 $ 9,211
======= =======
Net income allocated to General Partner $ 102 $ 92
Net income allocated to Limited Partners $10,113 $ 9,119
Income allocated to General and Limited
Partners per Partnership Unit:
Income from continuing operations
before extraordinary charge $ 0.97 $ 0.77
Loss from discontinued operations - (0.01)
Extraordinary charge on early extinguishment
of debt (0.13) -
------- -------
Net income $ 0.84 $ 0.76
======= =======
</TABLE>
See notes to consolidated financial statements.
1
<PAGE>
Buckeye Partners, L.P.
Consolidated Balance Sheets
(In thousands)
<TABLE>
<CAPTION>
March 31, December 31,
1994 1993
----------- ------------
(Unaudited)
<S> <C> <C>
Assets
Current assets
Cash and cash equivalents $ 21,869 $ 22,748
Temporary investments - 250
Trade receivables 14,987 15,341
Inventories 1,160 1,174
Prepaids and other current assets 4,007 4,445
-------- --------
Total current assets 42,023 43,958
Property, plant and equipment, net 498,112 499,075
Other non-current assets 406 460
-------- --------
Total assets $540,541 $543,493
======== ========
Liabilities and partners' capital
Current liabilities
Current portion of long-term debt $ 12,000 $ 16,000
Accounts payable 534 2,562
Accrued and other current liabilities 21,002 19,687
-------- --------
Total current liabilities 33,536 38,249
Long-term debt 224,000 224,000
Minority interests 2,509 2,492
Other non-current liabilities 45,071 45,057
Commitments and contingent liabilities - -
-------- --------
Total liabilities 305,116 309,798
-------- --------
Partners' capital
General Partner 2,355 2,338
Limited Partners 233,070 231,357
-------- --------
Total partners' capital 235,425 233,695
-------- --------
Total liabilities and partners' capital $540,541 $543,493
======== ========
</TABLE>
See notes to consolidated financial statements.
2
<PAGE>
Buckeye Partners, L.P.
Consolidated Statements of Cash Flows
Increase (Decrease) in Cash and Cash Equivalents
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
Three months ended
March 31,
-------------------
1994 1993
---- ----
<S> <C> <C>
Cash flows from operating activities:
Income from continuing operations before
extraordinary charge $ 11,784 $ 9,338
-------- --------
Adjustments to reconcile income to net cash
provided by operating activities:
Extraordinary charge on early extinguishment
of debt (1,569) -
Depreciation and amortization 2,812 2,754
Minority interests 102 94
Distributions to minority interests (85) (262)
Change in assets and liabilities:
Trade receivables 354 2,878
Inventories 14 (16)
Prepaids and other current assets 438 (233)
Accounts payable (2,028) (309)
Accrued and other current liabilities (a) 1,315 1,381
Other non-current assets 54 (1)
Other non-current liabilities (a) 14 908
-------- --------
Total adjustments 1,421 7,194
-------- --------
Net cash provided by continuing operating activities 13,205 16,532
Net cash provided by discontinued operations (b) - 206
-------- --------
Net cash provided by operating activities 13,205 16,738
-------- --------
Cash flows from investing activities:
Capital expenditures (1,820) (1,870)
Proceeds from sale of net assets of discontinued
operations - 9,200
Proceeds from (expenditures for) disposal of
property, plant and equipment, net (29) 2
Sales (purchases) of temporary investments 250 (3,020)
-------- --------
Net cash (used in) provided by investing
activities (1,599) 4,312
-------- --------
Cash flows from financing activities:
Proceeds from issuance of long-term debt 15,000 -
Payment of long-term debt (19,000) (4,375)
Distributions to Unitholders (8,485) (7,879)
-------- --------
Net cash used in financing activities (12,485) (12,254)
-------- --------
Net (decrease) increase in cash and cash equivalents (879) 8,796
Cash and cash equivalents at beginning of period 22,748 9,753
-------- --------
Cash and cash equivalents at end of period $ 21,869 $ 18,549
======== ========
Supplemental cash flow information:
Cash paid during the period for:
Interest (net of amount capitalized) $ 6,489 $ 6,596
Non-cash changes in property, plant and equipment - 602
(a) Non-cash changes in accrued and other liabilities - 2,657
(b) Non-cash changes in discontinued operations - 3,259
</TABLE>
See notes to consolidated financial statements.
3
<PAGE>
BUCKEYE PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
1. BASIS OF PRESENTATION
In the opinion of management, the accompanying financial statements of Buckeye
Partners, L.P. (the "Partnership"), which are unaudited except for the Balance
Sheet as of December 31, 1993, which is derived from audited financial
statements, include all adjustments necessary to present fairly the
Partnership's financial position as of March 31, 1994 and the results of
operations and cash flows for the three-month periods ended March 31, 1994 and
1993. Certain amounts in the consolidated financial statements for 1993 have
been reclassified to conform to the current presentation.
Pursuant to the rules and regulations of the Securities and Exchange
Commission, the financial statements do not include all of the information
and notes normally included with financial statements prepared in accordance
with generally accepted accounting principles. These financial statements
should be read in conjunction with the consolidated financial statements and
notes thereto included in the Partnership's Annual Report on Form 10-K for the
year ended December 31, 1993.
2. CONTINGENCIES
The Partnership and its subsidiaries (the "Operating Partnerships"), in the
ordinary course of business, are involved in various claims and legal
proceedings, some of which are covered in whole or in part by insurance. The
General Partner is unable to predict the timing or outcome of these claims and
proceedings. Although it is possible that one or more of these claims or
proceedings, if adversely determined, could, depending on the relative amounts
involved, have a material effect on the Partnership's results of operations
for a future period, the General Partner does not believe that their outcome
will have a material effect on the Partnership's consolidated financial
condition.
Environmental
Certain Operating Partnerships (or their predecessors) have been named as a
defendant in lawsuits or have been notified by federal or state authorities
that they are a potentially responsible party ("PRP") under federal laws or a
respondent under state laws relating to the generation, disposal, or release
of hazardous substances into the environment. These proceedings generally
relate to potential liability for clean-up costs. The total potential
remediation costs relating to these clean-up sites cannot be reasonably
estimated. With respect to each site, however, the Operating Partnership
involved is one of several or as many as several hundred PRPs that would share
in the total costs of clean-up under the principle of joint and several
liability. The General Partner believes that the generation, handling and
disposal of hazardous substances have been in material compliance with
applicable environmental and regulatory requirements. Additional claims for
the cost of cleaning up releases of hazardous substances and for damage to the
environment resulting from the activities of the Operating Partnerships or
their predecessors may be asserted in the future under various federal and
state laws. Although the Partnership has made a provision for certain legal
expenses relating to these matters, the General Partner is unable to determine
the timing or outcome of any pending proceedings or of any future claims and
proceedings.
4
<PAGE>
BUCKEYE PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
Guaranteed Investment Contract
The Buckeye Pipe Line Company Retirement and Savings Plan (the "Plan") holds a
guaranteed investment contract ("GIC") issued by Executive Life Insurance
Company ("Executive Life"), which entered conservatorship proceedings in the
State of California in April 1991. The GIC was purchased in July 1989, with an
initial principal investment of $7.4 million earning interest at an effective
rate per annum of 8.98 percent through June 30, 1992. As a result of the
conservatorship proceedings, no payment of principal or interest was made on
the maturity date. A Plan of Rehabilitation was approved by the Superior Court
of the State of California, and the Rehabilitation Plan was consummated on
September 3, 1993. Various policy holders and creditors have, however,
appealed certain aspects of the Plan of Rehabilitation, including the priority
status of entities such as the Plan which purchased GICs subsequent to January
1, 1989. Pursuant to the Plan of Rehabilitation, the Plan will receive an
interest only contract from Aurora National Life Assurance Company in
substitution for its Executive Life GIC. The contract provides for semi-annual
interest payments through the date of maturity of the contract which will be
September 1998. In addition, the Plan is to receive certain additional cash
payments, the amounts of which cannot be accurately estimated at this time,
over the next five years pursuant to the Plan of Rehabilitation. The timing
and amount of payment with respect to the GIC is dependent upon the outcome of
the pending appeals as well as clarification of various provisions of the
Rehabilitation Plan. In May 1991, the General Partner, in order to safeguard
the basic retirement and savings benefits of its employees, announced its
intention to enter an arrangement with the Plan that would guarantee that the
Plan would receive at least its initial principal investment of $7.4 million
plus interest at an effective rate per annum of 5 percent from July 1, 1989.
The General Partner intends to effectuate its commitment through an agreement
with the Plan that would provide, under certain circumstances and subject to
Department of Labor approval, for its purchase of the Plan's rights with
respect to the GIC. The costs and expenses of the General Partner's employee
benefit plans are reimbursable by the Partnership under the applicable limited
partnership and management agreements. The General Partner believes that an
adequate provision has been made for costs which may be incurred by the
Partnership in connection with the above mentioned guarantee.
3. EARLY EXTINGUISHMENT OF DEBT
In March 1994, Buckeye Pipe Line Company, L.P. ("Buckeye") entered into an
agreement to issue $15 million of additional First Mortgage Notes, Series N,
bearing interest at a rate of 7.93 percent. The proceeds from the issuance of
these First Mortgage Notes, plus additional amounts approximating $1.6
million, were used to purchase U.S. Government securities. These securities
were deposited into an irrevocable trust to complete a partial in-substance
defeasance of Buckeye's 9.72 percent, Series I, First Mortgage Notes. The
funds in the trust will be used solely to satisfy the interest due and
principal in the amount of $15 million due at maturity in December 1996.
Accordingly, such U.S. Government securities and $15 million of the 9.72
percent, Series I, First Mortgage Notes have been excluded from the March 31,
1994 balance sheet. The debt extinguishment resulted in an extraordinary
charge of $1,569,000.
5
<PAGE>
BUCKEYE PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
4. PARTNERS' CAPITAL
Partners' capital consists of the following:
<TABLE>
<CAPTION>
General Limited
Partner Partners Total
-------- --------- ---------
(In thousands)
<S> <C> <C> <C>
Partners' Capital - 1/1/94 $2,338 $231,357 $233,695
Net Income 102 10,113 10,215
Distributions (85) (8,400) (8,485)
------ -------- --------
Partners' Capital - 3/31/94 $2,355 $233,070 $235,425
====== ======== ========
</TABLE>
Net income per Unit is based on 12,121,212 outstanding Units, which include
121,212 General Partnership Units.
5. CASH DISTRIBUTIONS
The Partnership will generally make quarterly cash distributions of
substantially all of its available cash, generally defined as consolidated
cash receipts less consolidated cash expenditures and such retentions for
working capital, anticipated cash expenditures and contingencies as the
General Partner deems appropriate or as are required by the terms of the
Mortgage Note Indenture.
The Partnership has declared a cash distribution of $0.70 per unit payable on
May 31, 1994 to unitholders of record on May 6, 1994. The total distribution
will amount to approximately $8,485,000.
6
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
---------------------------------------------------------------
Results of Operations
---------------------
Amounts in the following discussion and analysis of financial condition and
results of operations relate to continuing operations unless otherwise
indicated.
RESULTS OF OPERATIONS
---------------------
First Quarter
-------------
Revenue for the first quarter 1994 was $45.6 million, $4.2 million or 10.1
percent greater than revenue of $41.4 million for the first quarter 1993.
Volume for the first quarter 1994 was 1,042,200 barrels per day, 77,900
barrels per day or 8.1 percent greater than volume of 964,300 barrels per day
for the first quarter 1993. Greater revenue during the first quarter 1994
related primarily to increased distillate and gasoline deliveries. Distillate
volume increased 27 percent over first quarter last year in response to higher
demand for heating fuel during severe weather conditions in most of the
Partnership's service area. Gasoline volume increased approximately 3
percent, compared to the first quarter 1993, due to restricted barge
transportation during the severe cold period, reduced Canadian imports to
upstate New York and continued operating problems in the Midwest refining
industry that required transportation of gasoline into the region.
Costs and expenses for the first quarter 1994 were $27.4 million, $1.7 million
or 6.6 percent greater than costs and expenses of $25.7 million for the first
quarter 1993. Increased expenses during the first quarter 1994 included
payroll, power costs, maintenance services and supplies. Much of this expense
increase was due to transportation of additional volume.
Other income (expenses), which is the net of non-operating income and
expenses, was a net expense of $6.4 million for the first quarter of each of
the years 1994 and 1993. Substantially all of other income (expenses) is
related to interest expense. Such interest expense for the first quarter 1994
was effected by a lower weighted average cost of debt and costs associated
with the issuance of an additional $15,000,000 in First Mortgage Notes and the
concurrent partial in-substance defeasance of previously issued First Mortgage
Notes. See Note 3 to Consolidated Financial Statements.
LIQUIDITY AND CAPITAL RESOURCES
-------------------------------
The Partnership's financial condition at March 31, 1994 is highlighted in the
following comparative summary:
<TABLE>
<CAPTION>
Liquidity and Capital Indicators
- ---------------------------------
As of
---------------------
3/31/94 12/31/93
-------- --------
<S> <C> <C>
Current ratio 1.3 to 1 1.1 to 1
Ratio of cash and cash equivalents,
temporary investments and trade
receivables to current liabilities 1.1 to 1 1.0 to 1
Working capital (in thousands) $8,487 $5,709
Ratio of total debt to total capital .50 to 1 .50 to 1
Book value (per Unit) $19.42 $19.28
</TABLE>
The Partnership's cash flow from operations is generally sufficient to meet
current working capital requirements. In addition, the Partnership maintains
$26.0 million in short-term credit facilities under which there are no current
outstanding borrowings.
7
<PAGE>
Cash Provided by Operations
---------------------------
For the three months ended March 31, 1994, cash provided by operations of
$13.2 million was derived principally from income from continuing operations
of $11.8 million, depreciation of $2.8 million and operating working capital
changes of $0.1 million. Remaining net cash uses, which amounted to $1.5
million, were largely related to an extraordinary charge on the early
extinguishment of debt. See "Debt Obligation and Credit Facilities" below.
For the three months ended March 31, 1993, cash provided by operations was
$16.7 million principally from income from continuing operations of $9.3
million, depreciation of $2.8 million, operating working capital changes of
$3.7 million and $0.9 million from increases in other non-current liabilities.
Changes in operating working capital were due to a decrease in trade
receivables and an increase in accrued and other current liabilities.
Debt Obligation and Credit Facilities
-------------------------------------
At March 31, 1994, the Partnership had $236.0 million in outstanding current
and long-term debt representing the First Mortgage Notes of Buckeye. The
First Mortgage Notes are collateralized by substantially all of Buckeye's
property, plant and equipment. The $236.0 million of debt outstanding at
March 31, 1994 includes $15 million of additional First Mortgage Notes, Series
N, bearing interest at a rate of 7.93 percent which were issued on April 11,
1994 in accordance with an agreement entered into in March 1994. Such current
and long-term debt excludes $15 million of 9.72 percent First Mortgage Notes,
Series I, due December 1996, which were defeased in-substance with the
proceeds of the Series N First Mortgage Notes. In addition, during the first
three months of 1994, Buckeye irrevocably deposited $4.0 million with the
trustee to be applied to payment of the 9.33 percent First Mortgage Notes,
Series G, due December 1994. Comparable deposits during the first three
months 1993 aggregated $4.4 million and were applied to payment of the 9.16
percent First Mortgage Notes, Series F, due December 1993.
The indenture pursuant to which the First Mortgage Notes were issued was
amended in March 1994 by a Fourth Supplemental Indenture to permit Buckeye to
issue additional First Mortgage Notes under certain circumstances; provided
that the aggregate principal amount of First Mortgage Notes outstanding after
such issuance does not exceed $275 million.
The Partnership maintains a $15 million unsecured revolving credit facility
with a commercial bank. This facility, which has options to extend borrowings
through September 1999, is available to the Partnership for general purposes,
including capital expenditures and working capital. In addition, Buckeye has
a $10 million short-term line of credit secured by accounts receivable.
Laurel Pipe Line Company, L.P. has an unsecured $1 million line of credit. At
March 31, 1994, there were no outstanding borrowings under these facilities.
At March 31, 1994, the ratio of total debt to total capital was 50 percent.
For purposes of the calculation of this ratio, total capital consists of
current and long-term debt, minority interests in subsidiaries and partners'
capital.
Capital Expenditures
--------------------
At March 31, 1994, approximately 92 percent of total consolidated assets
consisted of property, plant and equipment.
Capital expenditures during the three months ended March 31, 1994 totaled $1.8
million compared to $1.9 million during the three months ended March 31, 1993.
During both periods, capital expenditures were paid from internally generated
funds.
8
<PAGE>
Part II - Other Information
Item 1. Legal Proceedings
--------------------------
For information concerning the Partnership's legal proceedings, see Item 3 of
the Partnership's Form 10-K for the fiscal year ended December 31, 1993.
Item 5. Other Information (Rate Regulation Matters)
----------------------------------------------------
Buckeye's "light-handed" rate regulation program was subject to review by
the Federal Energy Regulatory Commission ("FERC") upon the expiration of its
three-year term on March 24, 1994. On February 22, 1994, Buckeye filed a
tariff seeking to continue its rate regulation program on a permanent basis.
On March 24, 1994, FERC issued an Order accepting Buckeye's tariff rate
filing. The Order provided, however, that the acceptance of the tariff would
not relieve Buckeye from compliance with the requirements of a new rule
issued by FERC in October, 1993, pursuant to the Energy Policy Act of 1992.
The new rule, which is subject to pending petitions for rehearing, is
scheduled to become effective on January 1, 1995. At this time, Buckeye is
considering applying for a waiver from the requirements of the rule, or
otherwise seeking approval from FERC to continue its rate regulation program
beyond January 1, 1995. (For further information concerning tariff regulation
matters affecting the Partnership, see the Partnership's Form 10-K for the
fiscal year ending December 31, 1993.)
Item 6. Exhibits and Reports on Form 8-K
-----------------------------------------
(a) Exhibits
4.8 - Fourth Supplemental Indenture of Mortgage and Deed of Trust and
Security Agreement dated as of March 15, 1994.
4.9 - Fifth Supplemental Indenture of Mortgage and Deed of Trust and
Security Agreement dated as of March 30, 1994.
11 - Computation of earnings per unit.
(b) No reports on Form 8-K were filed during the quarter ended March 31, 1994.
9
<PAGE>
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.
BUCKEYE PARTNERS, L.P.
(Registrant)
By: Buckeye Management Company,
as General Partner
Dated: April 21, 1994 By: /s/ E. R. Varalli
--------------------------------
E. R. Varalli
Executive Vice President,
Chief Financial Officer and
Treasurer
(Principal Accounting and
Financial Officer)
<PAGE>
<TABLE>
<CAPTION>
Index to Exhibits
-----------------
Exhibit Number Description Page
-------------- ----------- ----
<S> <C> <C>
4.8 Fourth Supplemental Indenture
of Mortgage and Deed of Trust
and Security Agreement dated
as of March 15, 1994.
4.9 Fifth Supplemental Indenture
of Mortgage and Deed of Trust
and Security Agreement dated
as of March 30, 1994.
11 Computation of earnings per unit
</TABLE>
<PAGE>
EXHIBIT (4.8)
SUPPLEMENTAL INDENTURE
Fourth Supplemental Indenture of Mortgage and Deed of Trust and
Security Agreement, dated as of March 15, 1994 (this "Fourth Supplement"), made
by and among Buckeye Pipe Line Company, L.P., a Delaware limited partnership
(the "Company"), and PNC Bank, National Association, formerly Pittsburgh
National Bank, a national banking association, having its principal corporate
trust office at One Oliver Plaza, Pittsburgh, Pennsylvania 15265 (the
"Trustee"), and J.G. Routh, residing at 308 Depot Street, Jamestown,
Pennsylvania 16134 (the "Individual Trustee"), as Trustees (together, the
"Trustees") under the Indenture of Mortgage and Deed of Trust and Security
Agreement, dated as of December 15, 1986 (the "Indenture"), by and among the
Company and each of the Trustees, and recorded on the date and in the location
shown on Schedule 1 attached hereto and made a part hereof, as amended by the
First Supplemental Indenture dated as of December 1, 1987 ("First Supplement"),
the Second Supplemental Indenture dated as of November 30, 1992 ("Second
Supplement"), and the Third Supplemental Indenture dated as of December 31, 1993
("Third Supplement"). Exhibit A attached hereto and made a part hereof sets
forth the jurisdictions in which the Company has fee-owned real property or
rights-of-way.
PRELIMINARY STATEMENT
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in the Indenture.
The Company has entered into the Indenture with the Trustees. The
Company and the Trustees are entering into this Fourth Supplement in accordance
with the provisions of Article Twelve of the Indenture. Pursuant to Article
Twelve of the Indenture, all other acts and things necessary to make this Fourth
Supplement a valid instrument have been done and performed. All covenants and
agreements made by the Company herein are for the benefit and security of the
Noteholders and the Trustees. The Company is entering into this Fourth
Supplement, and the Trustees are accepting this Fourth Supplement, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
The Company represents that this Fourth Supplement does not encumber
real property improved or to be improved by one or more structures containing in
the aggregate not more than six residential dwelling units, each having its own
cooking facilities.
This instrument prepared by:
James H. Carroll, Esq.
Morgan, Lewis & Bockius
2000 One Logan Square
Philadelphia, PA 19103
___________________________
<PAGE>
1. Amendments to Article One of the Indenture.
------------------------------------------
(a) The definition of the term "Called Principal" set forth in
Article One of the Indenture is hereby amended in its entirety to read as
follows:
"Called Principal" shall mean, with respect to any Note, the
principal of such Note that is to be redeemed pursuant to the terms of
this Indenture or is declared to be immediately due and payable
pursuant to Article Eight of this Indenture.
(b) A definition of a new defined term in the Indenture shall be
inserted into Article One as follows:
"Deductible Capital Expenditures" shall mean, with respect to any
period, the amount of all capital expenditures made during such period
other than
(a) capital expenditures the reserving for which has
resulted in deductions under clause (a) of the definition of Net
Cash Available for Debt Service,
(b) capital expenditures which were not funded out of Net
Cash Available from Operations,
(c) capital expenditures originally funded out of Net Cash
Available from Operations but which were permanently financed
with Debt prior to January 1, 1994 (the 1993 Notes being deemed,
for purposes of this paragraph (c), to have been issued on
December 31, 1993), or
(d) capital expenditures originally funded out of Net Cash
Available from Operations but which are permanently financed with
Debt (i) on or after January 1, 1994 (the 1993 Notes being
deemed, for purposes of this paragraph (c), to have been issued
on December 31, 1993), and (ii) within the 12-month period
following the making of such capital expenditure.
(c) The definition of the term "Net Cash Available to Partners"
set forth in Article One of the Indenture is hereby amended in its entirety to
read as follows:
"Net Cash Available to Partners" shall mean at any time the Net
Cash Available for Debt Service for the period from December 23, 1986
to the end of the last month prior to the date of determination for
which financial statements are available, taken as a single
-2-
<PAGE>
accounting period, plus (i) the aggregate cash proceeds of the sale or
other disposition of capital assets, but only to the extent such
proceeds are not required hereunder to be deposited with the Trustee,
and (ii) amounts received from the Trustee and not required to be
applied to the acquisition of property or other assets (including
replacements), and less the sum of (iii) the amount of all Deductible
Capital Expenditures made during such period, and (iv) all amounts
required to be deposited with the Trustee in respect of such period
pursuant to (S) 4.16 (including all amounts deposited in the Note
Payment Account pursuant to (S) 7.01(a)). Schedule 2 attached hereto
sets forth an example, as of December 31, 1993, of the calculation of
Net Cash Available to Partners.
(d) The definition of the term "Outstanding" set forth in
Article One of the Indenture is hereby amended in its entirety to read as
follows:
"Outstanding", when used with respect to Notes, shall mean as of
any particular time all Notes theretofore authenticated and delivered
under this Indenture, except:
(a) Notes (or any portion thereof) cancelled at or prior to
the particular time,
(b) Notes (or such portion thereof) for the payment or
redemption of which (i) cash sufficient to pay, or (ii) such
amount of direct obligations of the United States of America as
will or will together with the income thereon without
consideration of any reinvestment thereof be sufficient to pay,
when due the principal and interest of such Notes (or such
portion thereof) shall have theretofore been deposited with the
Trustee in trust (whether upon or prior to the maturity or the
redemption date of such Notes), provided that if such Notes (or
portion thereof) are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as in
Article Five provided or provision satisfactory to the Trustee
shall have been made for such notice or irrevocable authorization
shall have been given by the Company to the Trustee to give such
notice, and
(c) Notes in lieu of and in substitution for which other
Notes shall have been authenticated and delivered under the
circumstances and in the manner provided in Article Two.
-3-
<PAGE>
In the event that less than all of a series of Notes has been
defeased, then the principal amount of each Note of such series deemed
to be Outstanding for purposes of this Indenture shall be adjusted to
give effect to such partial defeasance applied on a pro rata basis
against all Notes of such series.
(e) The definition of the term "Owned Entity" set forth in
Article One of the Indenture is hereby amended in its entirety to read as
follows:
"Owned Entity" shall mean (a) a partnership in which the Company
holds, directly or through Subsidiaries, more than 50% of the limited
partnership interests and more than 50% of the aggregate partnership
interests or (b) a corporation or other business entity in which the
Company owns, directly or through Subsidiaries, shares representing
more than 50% of the common equity and entitling the holders thereof
to more than 50% of the voting rights for the election of directors of
such entity, provided that such entity is not a Subsidiary; and
provided, further, that the acquisition of such entity by the Company,
directly or through a Subsidiary, shall have been approved by the
Holders of 66-2/3% of the aggregate principal amount of the Notes
Outstanding at the time of such acquisition.
(f) The definition of the term "Reinvestment Yield" set forth in
Article One of the Indenture is hereby amended in its entirety to read as
follows:
"Reinvestment Yield" shall mean, with respect to the Called
Principal of any 1986 Note, the yield to maturity implied by the
Treasury Constant Maturity Series yields reported (for the latest day
for which such yields shall have been so reported at the commencement
of business on the Business Day next preceding the Settlement Date
with respect to such Called Principal or, in the case of a redemption
pursuant to (S) 2.12(b), the Business Day next preceding the date of
the notice with respect to such Called Principal mailed to Holders of
1986 Notes pursuant to (S) 5.01) in Federal Reserve Statistical
Release H.15 (519) (or any comparable successor publication) for
actively traded U.S. Treasury securities having a constant maturity
equal to the remaining weighted average life to final maturity
(calculated in accordance with accepted financial practice) of such
Called Principal as of such Settlement Date. Such implied yield shall
be determined (a) by calculating the remaining weighted average life
to final maturity of such Called Principal
-4-
<PAGE>
rounded to the nearest quarter-year and (b) if necessary, by
interpolating linearly between Treasury Constant Maturity Series
yields.
With respect to the Called Principal of any Additional Note,
"Reinvestment Yield" shall mean the yield to maturity implied by (i)
the yields reported, as of 10:00 A.M. (New York City local time) on
the Business Day next preceding the Settlement Date with respect to
such Called Principal, on the display designated as "Page 678" on the
Telerate Service (or such other display as may replace Page 678 on the
Telerate Service) for actively traded U.S. Treasury securities having
a maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date, or if such yields shall not be
reported as of such time or the yields reported as of such time shall
not be ascertainable, (ii) the Treasury Constant Maturity Series
yields reported, for the latest day for which such yields shall have
been so reported as of the Business Day next preceding the Settlement
Date with respect to such Called Principal, in Federal Reserve
Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a
constant maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date. Such implied yield shall be
determined, if necessary, by (a) converting U.S. Treasury bill
quotations to bond-equivalent yield in accordance with accepted
financial practice and (b) interpolating linearly between yields
reported for various maturities.
(g) The definition of the term "Settlement Date" set forth in
Article One of the Indenture is hereby amended in its entirety to read as
follows:
"Settlement Date" shall mean, with respect to the Called
Principal of any Note, the date on which such Called Principal is to
be redeemed pursuant to the terms of this Indenture or is declared to
be immediately due and payable pursuant to Article Eight of this
Indenture.
(h) The definition of the term "Subsidiary" set forth in Article
One of the Indenture is hereby amended in its entirety to read as follows:
"Subsidiary" shall mean (a) a partnership in which the Company
holds, directly or through Subsidiaries, all the limited partnership
interest and substantially all the partnership interest or (b) a
corporation or
-5-
<PAGE>
other business entity in which the Company holds, directly or through
Subsidiaries, substantially all the shares or other interests that
represent the common equity and the holders of which have the right to
elect substantially all the directors of such entity, and (b) all the
assets of which (other than assets of the character of Excepted
Property) are, directly or through a Subsidiary, subject to the Lien
of this Indenture; provided that the acquisition of such entity by the
Company, directly or through Subsidiaries, shall have been approved by
the Holders of at least 66-2/3% of the aggregate principal amount of
the Notes Outstanding at the time of such acquisition.
2. Amendments to Article Three of the Indenture.
--------------------------------------------
(a) Section 3.01 of the Indenture is hereby amended in its
entirety to read as follows:
(S) 3.01. The aggregate principal amount of Notes which may be
Outstanding under this Indenture at any time (after giving effect to
the authentication and delivery of Additional Notes the authentication
and delivery of which are being requested and the redemption or
defeasance of any Notes redeemed or defeased out of the proceeds of
such Additional Notes) is limited to $275,000,000. This Indenture
shall be and constitute a continuing lien to secure the full and final
payment of the principal of and interest (and premium, if any) on all
Notes which may, from time to time, be executed, authenticated and
delivered hereunder.* Except as otherwise herein expressly provided,
all Notes issued hereunder shall in all respects be equally and
ratably secured hereby without preference, priority or distinction, as
to lien or otherwise, on account of the actual time or times of the
authentication and delivery or maturity of the Notes and or any of
them, so that all Notes at any time Outstanding hereunder shall have
the same right, lien and preference under and by virtue of this
Indenture, and shall be equally secured hereby, with like effect as if
they had all been executed, authenticated and delivered simultaneously
on the date hereof, whether the same or any of them shall actually be
sold or disposed of at such date, or whether they, or any of them,
shall be sold or disposed of at some future date, or whether they, or
any of them, shall have been authorized to be authenticated and
delivered under (S) 3.02, or may be authorized to be authenticated and
delivered hereafter pursuant to other provisions of this Indenture.
-6-
<PAGE>
--------------------
* This Indenture, insofar as it constitutes a lien on real property
located in any jurisdiction in which it cannot secure Additional
Notes until a Supplemental Indenture in respect thereof shall
have been filed, does not purport to secure Additional Notes
unless and until a Supplemental Indenture with respect to such
Additional Notes is duly recorded as may be required by the law
of such jurisdiction.
(b) Section 3.03(a) of the Indenture is hereby amended in its
entirety to read as follows:
(a) A Certified Resolution authorizing the execution and
requesting the authentication and delivery of the Additional Notes
applied for in the principal amount therein specified, designating the
series of such Notes, as created by the terms of an Indenture
Supplemental hereto in which are set out the terms and provisions of
such series of Notes, the form thereof, and such other provisions
applicable to such Notes as the Company may choose; provided that
nothing contained in such Supplemental Indenture shall be inconsistent
with any provision of this Indenture, unless the Required Holders of
the Notes then Outstanding shall approve, and naming the officer or
officers of the General Partner to whom or upon whose order such Notes
shall be delivered.
(c) Section 3.03(b) of the Indenture is hereby amended in its
entirety to read as follows:
(b) An Officers' Certificate, dated as of the date of such
application, stating in substance that:
(1) the Net Cash Available for Debt Service for the twelve
consecutive calendar months immediately preceding the first day
of the month next preceding the month in which the application
for authentication and delivery of Additional Notes is made, is
equal to not less than 1.25 times the maximum amount of principal
and interest required to be paid on a pro forma basis for the
twelve calendar months next succeeding the above twelve month
period on all Notes at the time Outstanding (after giving effect
to the authentication and delivery of the Additional Notes the
authentication and delivery of which are being requested and the
redemption or defeasance
-7-
<PAGE>
of any Notes redeemed or defeased out of the proceeds of such
Additional Notes);
(2) the ratio of (i) the aggregate principal amount of
Notes to be Outstanding (after giving effect to the
authentication and delivery of the Additional Notes the
authentication and delivery of which are being requested and the
redemption or defeasance of any Notes redeemed or defeased out of
the proceeds of such Additional Notes) to (ii) Net Cash Available
for Debt Service minus the amount of all capital expenditures for
-----
the twelve consecutive calendar months immediately preceding the
first day of the month next preceding the month in which the
application for authentication and delivery of Additional Notes
is made which were at any time funded out of Net Cash Available
from Operations (other than capital expenditures the reserving
for which has resulted in deductions under clause (a) of the
definition of Net Cash Available for Debt Service), is not
greater than 4.75 to 1;
(3) so far as known to such officers, the Company is not,
and by the making or granting of the application or the issuance
and sale of the Notes for which application is made, will not be,
in Default in the performance of any of the terms and covenants
of this Indenture; and, in the opinion of such officers, all
conditions precedent provided for in this Indenture relating to
the authentication and delivery of the Additional Notes applied
for have been complied with;
(4) there will not occur as a result of the issuance of the
Additional Notes applied for any Material Adverse Effect; and
(5) no property described in the granting clauses of this
Indenture or in any Supplemental Indenture which is still owned
by the Company has become and still remains subject to any lien,
other than the Lien of this Indenture and Permitted Liens, not
existing thereupon at the date of this Indenture or such
Supplemental Indenture.
(d) Section 3.03(f) of the Indenture is hereby amended in its
entirety to read as follows:
(f) Subject to the provisions of (S) 3.03(g) below, either:
-8-
<PAGE>
(1) An Officers' Certificate (i) stating the purpose for which
the net proceeds of the issuance and sale of the Notes will be
applied (such as funding the cost of specified completed or future
Capital Improvements, redeeming or defeasing Outstanding Notes,
providing for working capital or general Company purposes or
otherwise), (ii) stating that the aggregate principal amount of the
Notes that will be Outstanding under this Indenture immediately
after the issuance of the Notes applied for (other than Notes issued
in exchange or substitution for Outstanding Notes pursuant to (S)
2.04, 2.07 and 2.10 and Additional Notes issued pursuant to (S)
3.03(f) to provide funds required for the redemption or defeasance
of Outstanding Notes pursuant to this Indenture) will not exceed the
sum of $275,000,000, (iii) stating that no portion of the cost of
the completed Capital Improvements referred to in such Officers'
Certificate pursuant to clause (i) was or should properly have been
charged against income, and that all of such amount was, in
conformity with the regulations, rules and orders, if any, with
respect to such matters in force at the time, of the public body or
authority having jurisdiction or supervisory authority over the
accounts of the Company, or, if there are no such regulations, rules
and orders, in accordance with generally accepted accounting
principles, capitalized on the books of the Company, and (iv) that
no portion of such completed Capital Improvements is subject to any
mortgage, pledge or other lien prior to the Lien of this Indenture
(except construction liens securing indebtedness, to be paid by the
Trustee out of the proceeds of the Additional Notes, and Permitted
Liens), or to any easement or similar encumbrance except such as, in
the opinion of such officers, does not impair the continued use of
such property additions for the purposes for which they were
acquired; or
(2) Upon any application for the authentication of Additional
Notes the net proceeds of the issuance and sale of which are to be
used to fund the cost of Capital Improvements not yet incurred by the
Company, (i) an Officers' Certificate specifying the information
required by clauses (i) and (ii) of (S) 3.03(f)(1) and the amount of
the cost of additional Capital Improvements to be funded out of the
net proceeds of the issuance and sale of the Notes applied for, and
(ii) deposit with the Trustee the net proceeds of the sale of such
Additional Notes; or
-9-
<PAGE>
(3) (a) Upon any application for the authentication of Additional
Notes the net proceeds of the issuance and sale of which are to be
used to redeem or defease Outstanding Notes, an Officers' Certificate
specifying (i) that the net proceeds of the sale of the Notes applied
for shall be applied in full to the redemption or defeasance of Notes
pursuant to the terms of this Indenture, (ii) the principal amount of
the Notes to be redeemed or defeased, (iii) the redemption date and
the redemption price of the Notes called for redemption, (iv) that the
redemption requirements of (S) 5.01 have been complied with, and (b)
upon the issue and sale of the Notes applied for, an Officers'
Certificate specifying the net proceeds of the sale of such Notes, and
deposit with the Trustee the net proceeds of the sale of the Notes
applied for and, to the extent such net proceeds are insufficient for
the redemption or defeasance of the Notes to be called for redemption
or to be defeased, such additional funds as shall be required,
pursuant to this Indenture, to effect such redemption or defeasance.
(e) A new Section 3.03(g) shall be added to Article Three of the
Indenture to read in its entirety to read as follows:
(g) The Company may elect (which election shall be evidenced by
an Officers' Certificate delivered to the Trustee upon application for
authentication of Additional Notes) to delay providing the Trustee
with the certifications referred to in (S) 3.03(f)(1) and (S)
3.03(f)(2) (relating to the purpose for which Additional Notes will be
issued) for up to twelve months after the date such Notes are issued.
Once the Company subsequently provides such certifications, the
proceeds of the issuance of such Additional Notes shall be applied,
held and disbursed subject to the provisions of (S) 3.03(f)(2) and (S)
3.03(f)(3), as appropriate. If the Company does not provide the
Trustee with such certifications within twelve months after the date
such Additional Notes are issued, such Additional Notes shall be
deemed to have been issued for general Company purposes.
3. Amendments to Article Four of the Indenture.
-------------------------------------------
(a) Section 4.05(d) of the Indenture is hereby amended in its
entirety to read as follows:
(d) at any and all times upon the written request of the Trustee
and in any event in December of each calendar year, beginning with the
year 1987, furnish to
-10-
<PAGE>
the Trustee and to the Holders of the Notes an Officers' Certificate
stating in substance that the Company has complied with all the terms
and conditions of paragraphs (a) and (b) of this (S) 4.05 and
containing a detailed statement of the insurance then outstanding and
in force provided for under said paragraph (a), including the amounts
thereof, the names of the insurers, and the property, hazards and
risks covered thereby; and
(b) Section 4.07(a) of the Indenture is hereby amended in its
entirety to read as follows:
(S) 4.07. (a) The Company shall permit any persons designated
by the Trustee or Holders of the Notes to visit and inspect any of the
properties, books or financial records of the Company and the General
Partner and to discuss the affairs, finances and accounts of the
Company and the General Partner with the officers of the General
Partner and representatives of Deloitte & Touche (or any other firm of
independent public accountants employed by the Company), all at such
reasonable times and as often as may reasonably be requested.
(c) The last paragraph of Section 4.07(b) of the Indenture is
hereby amended in its entirety to read as follows:
Together with each delivery of financial reports and statements
required by clauses (1) and (2) of this (S) 4.07(b), the Company will
file with the Trustee and deliver to each of the Noteholders an
Officers' Certificate (A) stating that there exists no Event of
Default or Default or, if any Event of Default or Default exists,
specifying the nature thereof, the period of existence thereof and
what action the Company has taken and/or proposes to take with respect
thereto, (B) stating that the Company, as of the date thereof, had no
direct or contingent liability in respect of refunds of regulated
tariffs which are not disclosed in financial statements (including the
notes thereto) accompanying such Officers' Certificate or, if any such
liability or obligation then existed, specifying the nature and amount
thereof, (C) showing in detail as of the end of the related fiscal
period the calculations supporting the determination of the Net Cash
Available from Operations, Net Cash Available for Debt Service and Net
Cash Available to Partners for each month during such fiscal period
and the calculations supporting such reports and statements in respect
of the aggregate amount contributed by the Company and its
Subsidiaries and Owned Entities to all Pension Plans
-11-
<PAGE>
and Multiemployer Plans in respect of such fiscal period; the
aggregate amount of depreciation on physical property charged on the
books of the Company during such fiscal period, and the respective
amounts of all issuances of Additional Notes during such period, (D)
confirming that every surrender or modification pursuant to (S)
6.02(c) of any easement, right-of-way, lease, franchise, power,
privilege, license, authority or permit held by the Company was
effected in compliance with (S) 6.02(c), and (E) provided that the
Company shall be given reasonably sufficient time to comply, such
other items as the Trustee or any Holder of the Notes may reasonably
request. Together with each delivery of financial statements required
by clause (1) of this (S) 4.07(b) the Company will file with the
Trustee and deliver to each of the Noteholders a certificate of the
accountants referred to in such clause stating that, in making the
audit necessary to express their opinion on such financial statements,
they have obtained no knowledge that there exists any Event of
Default or Default, or if any Event of Default or Default exists,
specifying the nature and period of existence thereof;
(d) Section 4.07(d) of the Indenture is hereby amended in its
entirety to read as follows:
(d) In the event that this Indenture shall have been qualified
under the Trust Indenture Act of 1939, the Company will (i) file with
the Securities and Exchange Commission in accordance with the rules
and regulations prescribed from time to time by said Commission and
deliver to the Noteholders, such additional information, documents and
reports with respect to compliance by the Company with the conditions
and covenants provided for in this Indenture as may be required by
such rules and regulations, (ii) file with the Trustee and deliver to
the Holders of the Notes, copies of all such information, documents
and reports filed with the Securities and Exchange Commission, and
(iii) deliver to the Noteholders such summaries of any information,
documents and reports required to be filed with the Trustee pursuant
to the provisions of paragraph (b) and (c) of this (S) 4.07 as may be
required by the rules and regulations prescribed from time to time by
the Securities and Exchange Commission.
(e) Section 4.12(a) of the Indenture is hereby amended in its
entirety to read as follows:
-12-
<PAGE>
(a) Debt of the Company represented by the Notes and all other
amounts owing under this Indenture; provided that the aggregate
principal amount of Notes which may be Outstanding under this
Indenture at any time (after giving effect to the authentication and
delivery of Additional Notes the authentication and delivery of which
are being requested and the redemption or defeasance of any Notes
redeemed or defeased out of the proceeds of such Additional Notes)
shall not exceed $275,000,000, and further provided that no Additional
Notes may be issued and authenticated hereunder unless the Company,
among other things, files with the Trustee an Officers' Certificate
certifying compliance with the financial ratios set forth in (S)
3.03(b)(1) (ratio of Net Cash Available for Debt Service for a
specified historical twelve-month period must be equal to or not less
than 1.25 times the maximum amount of principal and interest required
to be paid during a specified pro forma twelve-month period) and (S)
3.03(b)(2) (ratio of aggregate principal amount of Notes to be
Outstanding to Net Cash Available for Debt Service minus specified
capital expenditures for a specified twelve-month period is not
greater than 4.75 to 1),
(f) Section 4.16 of the Indenture is hereby amended in its
entirety to read as follows:
(S) 4.16. The Company will deposit with the Trustee, on or
before the 14th day of each month, beginning January 14, 1987 (each
such day being herein called a "Deposit Date"), an amount, net of any
credit provided for in Section 7.02, equal to (i) one-twelfth of the
aggregate of the mandatory payments of principal and interest due in
the calendar year in which the Deposit Date occurs on the Notes
outstanding at the beginning of such calendar year plus (ii) from and
after each issuance of Additional Notes during such calendar year an
amount equal to the aggregate of the mandatory payments of principal
and interest due during such calendar year on such Additional Notes
divided by the number of Deposit Dates remaining in such calendar year
at the date of issue thereof and less, (iii) any amounts it has
directed the Trustee to apply to the payments of interest and
principal on the Notes during such calendar year out of funds held by
the Trustee pursuant to (S) 7.01 and 7.02 and legally available
therefor (the aggregate of such amounts to be deposited on each
Deposit Date being herein called the "Deposit Amount"). Commencing
January 1, 1994 (the 1993 Notes being deemed, for purposes of this (S)
4.16, to have been issued on December 31, 1993), no Deposit Amount
shall
-13-
<PAGE>
be deemed to be required to be made pursuant to this Section 4.16, or
for the purpose of clause (iv) of the definition of Net Cash Available
to Partners in respect of any defeased or redeemed Notes (or portion
thereof) to the extent that the proceeds of (x) Debt incurred by the
Company (other than Debt which has been incurred for the purpose, in
accordance with (S) 3.03(f)(1) hereof, of funding the cost of
completed Capital Improvements) or (y) additional capital
contributions to the Company, have been used to defease or redeem, in
accordance with this Indenture, such Notes (or portion thereof). For
purposes of this Section 4.16, any subsequent use of the proceeds of
Debt which has been incurred for the purpose of funding the cost of
completed Capital Improvements shall be deemed to be a use funded out
of Net Cash Available from Operations. For the purpose of calculating
the Deposit Amount, the interest rate for the balance of the year on
Notes which may bear interest at a variable rate is deemed to be fixed
at the higher of (x) the average rate actually experienced during the
calendar year to the Business Day preceding the Deposit Date, or (y)
the rate actually in effect on the Business Day immediately preceding
the Deposit Date. The Company will deposit with the Trustee, on or
before the Business Day immediately preceding the day on which any
Notes are to be redeemed pursuant to Article Five of this Indenture,
the aggregate amount of principal of and interest (and premium, if
any) due and payable on, such Notes upon the redemption thereof less
any amounts it has directed the Trustee to apply to such redemption
out of funds held by the Trustee and legally available therefor.
(g) Section 4.17 of the Indenture is hereby amended in its
entirety to read as follows:
(S) 4.17 Except to the extent provided to the contrary in a
Supplemental Indenture relating to particular series of Additional
Notes, the Company will not permit any of its Subsidiaries and Owned
Entities to, so long as any of the Notes are Outstanding, declare, or
otherwise authorize, or make any payment or distribution of property,
other assets or cash in respect of partnership interests to the
Company's partners, except for the distribution to its partners on
December 23, 1986 of $300,000,000 plus any cash on hand on December
23, 1986 (which shall not be deemed to be a distribution to partners
for the purpose of this (S) 4.17) and except that, so long as there
shall not, on the date of any such distribution, occur or be
continuing any Default or Event of Default, the Company may, in
addition, make cash distributions to its
-14-
<PAGE>
partners from time to time; provided that, at the time of declaration
of each such distribution, which shall not precede the date of payment
by more than 45 days (and after giving effect to such distribution),
the aggregate amount of all such distributions shall not exceed the
Net Cash Available to Partners at such time.
4. Amendments to Article Six of the Indenture. Section 6.06 of the
------------------------------------------
Indenture is hereby amended in its entirety to read as follows:
(S) 6.06. The Trustee shall not be required under any of the
provisions of this Article Six to release any part of the Mortgaged
Property from the Lien hereof at any time when the Company shall be in
Default hereunder, but notwithstanding any such Default the Trustee
may release from the Lien hereof any part of the Mortgaged Property,
upon compliance by the Company with the other conditions specified in
this Article Six in respect hereof, if the Trustee in its discretion
shall deem such release to be in the best interest of the Noteholders
or shall have the consent of the holders of at least 66-2/3% of the
Outstanding principal amount of the Notes. In case the Trust Estate
shall be in the possession of one or more receivers lawfully appointed
or of a trustee in bankruptcy or reorganization proceedings (including
a trustee or trustees appointed under the provisions of the Federal
bankruptcy laws, as now or hereafter constituted, or applicable State
laws) or of assignees for the benefit of creditors, the powers
confirmed by this Article Six on the Company may be exercised by such
receivers, trustees or assignees, with the approval of the Trustee,
regardless of whether or not the Company is in Default hereunder, and
in such event a writing signed by such receivers, trustees or
assignees, may be received by the Trustee in lieu of any Certified
Resolution required by the provisions of this Article Six, and such
receivers, trustees or assignees may make any certificate required by
the provisions of this Article Six, to be made by an officer or
officers of the Company. If the Trustee or the Trustees hereunder
shall be in possession of the Trust Estate under any provisions of
this Indenture, then all such powers by this Article Six conferred
upon the Company may be exercised by the Trustee or the Trustees in
its or their discretion.
5. This Fourth Supplement may be executed in several counterparts,
each of which shall constitute an original, but all of which together shall
constitute one and the same instrument.
-15-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Fourth Supplement to
be executed on its behalf by its General Partner, by the President or one of the
Vice Presidents of the General Partner, and the corporate seal of the General
Partner to be hereto affixed and said seal and this Indenture to be attested by
the General Partner's Secretary or one of its Assistant Secretaries; and the
Trustee has caused this Fourth Supplement to be executed on its behalf by one of
its Vice Presidents, and its corporate seal to be hereto affixed and said seal
and this Indenture to be attested by one of its Assistant Secretaries; and the
Individual Trustee has affixed his hand and seal hereto; all as of the 15th day
of March, one thousand nine hundred and ninety-four.
Witness BUCKEYE PIPE LINE COMPANY, L.P.
- ---------------------------- By: BUCKEYE PIPE LINE COMPANY,
James H. Carroll a Delaware corporation, as
- ---------------------------- general partner
Witness By: /s/ Steven C. Ramsey
---------------------------
- ---------------------------- Name: Steven C. Ramsey
C. Richard Wilson Title: Vice President
- ---------------------------- (Corporate Seal)
Attest:
/s/ Arthur Rosenblatt
------------------------------
Name: Arthur Rosenblatt
Title: Assistant Secretary
Witness PNC BANK, NATIONAL ASSOCIATION,
formerly Pittsburgh National Bank,
as Trustee
- ----------------------------
Sherry Locke By: /s/ F.J. Deramo
- ---------------------------- --------------------------------
Name: F.J. Deramo
Witness Title: Vice President
(Corporate Seal)
- ---------------------------- Attest:
Kathy DiPasquale
- ----------------------------
/s/ Amy R. Howcroft
-----------------------------------
Name: Amy R. Howcroft
Title: Assistant Vice President
-16-
<PAGE>
Witness J.G. ROUTH, as Individual Trustee
- ----------------------------
Sherry Locke By: /s/ J.G. Routh
- ---------------------------- --------------------------------
Name: J.G. Routh
Witness Title:
- ----------------------------
Kathy DiPasquale
- ----------------------------
I hereby certify that the correct address
of the Trustee is:
One Oliver Plaza
Pittsburgh, PA 15265
By: /s/ F.J. Deramo
------------------------
For Trustee
I hereby certify that the correct address
of the Individual Trustee is:
308 Depot Street
Jamestown, PA 16134
By: /s/ J.G. Routh
------------------------
For Trustee
This instrument prepared by:
James H. Carroll, Esq.
Morgan, Lewis & Bockius
2000 One Logan Square
Philadelphia, PA 19103
-17-
<PAGE>
COMMONWEALTH OF PENNSYLVANIA )
) ss.:
COUNTY OF LEHIGH )
On the _____ day of March, 1994, before me personally came Steven C. Ramsey, to
me known, who, being by me duly sworn, did depose and say that he resides at No.
598 Bair Road, Berwyn, Pennsylvania 19312; that he is the Vice President of
Buckeye Pipe Line Company, the corporation described in and which executed the
foregoing instrument; which corporation is a general partner of Buckeye Pipe
Line Company, L.P., the Delaware limited partnership described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation; and that he
signed his name thereto by like order.
______________________________
Notary Public
-18-
<PAGE>
COMMONWEALTH OF PENNSYLVANIA )
) ss.:
COUNTY OF ALLEGHENY )
On the ____ day of March, 1994, before me personally came F.J. Deramo, to me
known, who, being by me duly sworn, did depose and say that he resides at No.
217 Chestnut Road, Sewickley, Pennsylvania 15143; that he is the Vice President
of PNC Bank, National Association, the corporation described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation; and that he
signed his name thereto by like order.
______________________________
Notary Public
-19-
<PAGE>
COMMONWEALTH OF PENNSYLVANIA )
) ss.:
COUNTY OF ALLEGHENY )
On the ____ day of March, 1994, before me personally came J. G. Routh, to me
known to be the individual described in and who executed the foregoing
instrument in the capacity therein stated, and acknowledged that he executed the
same.
______________________________
Notary Public
This instrument prepared by:
James H. Carroll, Esq.
Morgan, Lewis & Bockius
2000 One Logan Square
Philadelphia, PA 19103
-20-
<PAGE>
SCHEDULE 1
The Indenture of Mortgage and Deed of Trust and Security Agreement,
dated as of December 15, 1986, was recorded on ______________________, 198__, in
the land records in and for the [Town] [County] of _____________________, State
of ___________________, at Mortgage Book (Folio) ________________, Page
_____________.
-21-
<PAGE>
EXHIBIT (4.9)
SUPPLEMENTAL INDENTURE
Fifth Supplemental Indenture of Mortgage and Deed of Trust and
Security Agreement, dated as of March 30, 1994 (this "Fifth Supplement"), made
by and among Buckeye Pipe Line Company, L.P., a Delaware limited partnership
(the "Company"), and PNC Bank, National Association, formerly Pittsburgh
National Bank, a national banking association, having its principal corporate
trust office at One Oliver Plaza, Pittsburgh, Pennsylvania 15265 (the
"Trustee"), and J.G. Routh, residing at 308 Depot Street, Jamestown,
Pennsylvania 16134 (the "Individual Trustee"), as Trustees (together, the
"Trustees") under the Indenture of Mortgage and Deed of Trust and Security
Agreement, dated as of December 15, 1986 (the "Indenture"), by and among the
Company and each of the Trustees, and recorded on the date and in the location
shown on Schedule 1 attached hereto and made a part hereof, as amended by the
First Supplemental Indenture dated as of December 1, 1987 ("First Supplement"),
the Second Supplemental Indenture dated as of November 30, 1992 ("Second
Supplement"), the Third Supplemental Indenture dated as of December 31, 1993
("Third Supplement") and the Fourth Supplemental Indenture dated as of March 15,
1994 ("Fourth Supplement"). Exhibit A attached hereto and made a part hereof
sets forth the jurisdictions in which the Company has fee-owned real property or
rights-of-way. The Fourth Supplement is attached hereto as Schedule 2 and made
a part hereof.
PRELIMINARY STATEMENT
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in the Indenture.
The Company has entered into the Indenture with the Trustees. The
Company and the Trustees are entering into this Fifth Supplement in accordance
with the provisions of Article Twelve of the Indenture in order to set forth, as
permitted and provided by Sections 3.01, 3.03(d) and 12.01(f) of the Indenture,
the terms of one series of Additional Notes under the Indenture. Such
Additional Notes are the Company's First Mortgage Pipe Line Notes, consisting of
the $15,000,000 principal amount of 7.93% Series N Notes due December 15, 2010.
Pursuant to Article Twelve of the Indenture, all other acts and things necessary
to make this Fifth Supplement a valid instrument have been done and performed.
All covenants and agreements made by the Company herein are for the benefit and
security of the Noteholders and
This instrument prepared by:
James H. Carroll, Esq.
Morgan, Lewis & Bockius
2000 One Logan Square
Philadelphia, PA 19103
- ---------------------------
<PAGE>
the Trustees. The Company is entering into this Fifth Supplement, and the
Trustees are accepting this Fifth Supplement, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.
The Company represents that this Fifth Supplement does not encumber
real property improved or to be improved by one or more structures containing in
the aggregate not more than six residential dwelling units, each having its own
cooking facilities.
1. Amendment to the Recitals of the Indenture. The language set
------------------------------------------
forth below shall be added on page 6 of the Indenture after the paragraph
beginning with the word "WHEREAS" and immediately before the paragraph beginning
with the words "NOW, THEREFORE":
WHEREAS, all necessary action has been duly taken by the Company to
authorize the execution and delivery of a Fifth Supplemental Indenture and the
issue and sale hereunder of certain Additional Notes herein defined as the "1994
Notes", consisting of one series, the Notes of such series being designated and
referred to in the Indenture as set forth in (S) 2.14 and having the aggregate
principal amount, maturing at the date, and bearing interest, payable semi-
annually on June 15 and December 15 in each year, at the annual rate set forth
in (S) 2.14, and being subject to optional redemption pursuant to the provisions
of (S) 2.14; and
WHEREAS, the 1994 Notes are to be substantially in the forms following
respectively with changes only as to series designations and interest rates:
[Form of Note of Series N]
BUCKEYE PIPE LINE COMPANY, L.P.
(A limited partnership organized under
the laws of the State of Delaware)
First Mortgage Pipe Line Note, 7.93% Series N Due 2010
No._________ $_____________
Buckeye Pipe Line Company, L.P., a limited partnership organized and
existing under the laws of the State of Delaware (the "Company"), for value
received, hereby promises to pay to _______________________ or registered
assigns, on December 15, 2010, the sum of $_______________ Dollars in any coin
or currency of the United States of America which at the time of payment is
legal tender for public and private debts and to pay interest thereon in like
coin or currency (i) from the interest payment date next preceding the date of
this Note until payment of the principal hereof becomes due and payable, at the
rate of 7.93% per annum, payable semi-annually, on the fifteenth day of June and
December in each year and (ii) on any overdue payment of
-2-
<PAGE>
principal (and to the extent permitted by law, on any overdue payment of premium
or interest thereon), payable semi-annually as aforesaid (or at the option of
the holder hereof, on demand) at a rate per annum from time to time equal to the
greater of (x) 8.93% or (y) the rate of interest publicly announced by Morgan
Guaranty Trust Company of New York from time to time in New York City as its
prime rate, as shall be determined by the Trustee. In accordance with Section
15.05 of the "Indenture" referred to below, principal of, and interest on, and
any premium payable with respect to, this Note are payable at the principal
corporate trust office of the Trustee hereinafter mentioned or any successor as
Trustee under such Indenture.
This Note is one of a series designated as the "First Mortgage Pipe
Line Notes, 7.93% Series N due 2010" of the Company ("Note"), limited in
aggregate principal amount to $15,000,000 and issued under and secured by an
Indenture of Mortgage and Deed of Trust and Security Agreement, dated as of
December 15, 1986 (as amended by the First Supplemental Indenture dated as of
December 1, 1987, the Second Supplemental Indenture dated as of November 30,
1992, the Third Supplemental Indenture dated as of December 31, 1993, the Fourth
Supplemental Indenture dated as of March 15, 1994 and the Fifth Supplemental
Indenture dated as of March 30, 1994, and as amended and supplemented from time
to time hereafter, the "Indenture"), from the Company to PNC Bank, National
Association, formerly Pittsburgh National Bank (the "Trustee"), and J.G. Routh
(the "Individual Trustee"), as Trustees (together, the "Trustees"). Reference
is made to that certain Note Purchase and Private Shelf Agreement dated as of
December 31, 1993 (as amended from time to time, the "Note Agreement") between
the Company and The Prudential Insurance Company of America and each "Prudential
Affiliate" (as defined in the Note Agreement) which becomes a party thereto for
a further statement of the terms applicable to this Note. This Note constitutes
an Additional Note under the Indenture and together with the "1986 Notes" and
the "1993 Notes" (both as defined in the Indenture) and any Additional Notes
issued after the date hereof, are secured equally and ratably by the Lien of the
Indenture. This Note, the 1993 Notes, 1986 Notes and any Additional Notes are
collectively referred to herein as the "First Mortgage Notes". Reference is
made to the Indenture and all Indentures Supplemental thereto for a description
of the properties mortgaged and pledged, the nature and extent of the security,
the rights of the Holders of the First Mortgage Notes and of the Trustees in
respect thereof, and the terms and conditions upon which the First Mortgage
Notes are, and are to be, secured. The First Mortgage Notes of the several
series issued and to be issued under the Indenture from time to time may vary in
aggregate principal amount, may mature at different times, may bear interest at
different rates and may otherwise differ as in the Indenture provided.
-3-
<PAGE>
As provided in the Indenture, this Note are subject to mandatory and
optional redemption on the terms specified in the Indenture.
To the extent permitted by, and as provided in, the Indenture,
modifications or alterations of the Indenture, or of any Indenture Supplemental
thereto, and of the rights and obligations with respect to the Indenture of the
Company and of the Holders of the First Mortgage Notes may be made with the
consent of the Company upon the written consent of the Holders of not less
than 66 2/3% in aggregate principal amount of the First Mortgage Notes
entitled to vote thereon then Outstanding, or by an affirmative vote of the
Holders of not less than 66 2/3% in aggregate principal amount of the First
Mortgage Notes entitled to vote thereon then Outstanding, at a meeting of
Noteholders called and held as provided in the Indenture or as otherwise
provided in the Indenture; provided, however, that no such modification or
alteration shall be made without the consent of the Holder hereof which will
(a) affect the right of such Holder to receive payment of principal, or
interest or premium (if any) on, this Note, or to institute suit for the
enforcement of such payment on or after the respective due dates expressed
herein, or (b) otherwise than as permitted by the Indenture, permit the
creation of any lien ranking prior to, or on a parity with, the Lien of the
Indenture with respect to any property covered thereby, or (c) reduce the
percentage of the aggregate principal amount of First Mortgage Notes required
to authorize any such modification or alteration.
In case an Event of Default, as defined in the Indenture, shall occur
and be continuing, the principal of all the First Mortgage Notes at any such
time Outstanding under the Indenture may be declared or may become due and
payable upon the conditions and in the manner and with the effect provided in
the Indenture. The Indenture provides that such declaration may in certain
events be rescinded by the Holders of 66 2/3% in aggregate principal amount of
the First Mortgage Notes then Outstanding.
This Note is transferable by the Holder hereof, in person or by duly
authorized attorney, on books of the Company to be kept for that purpose at the
principal corporate trust office of the Trustee, upon surrender and cancellation
of this Note and on presentation of a duly executed written instrument of
transfer, and thereupon a new Note or Notes of the same series, of the same
aggregate principal amount and in authorized denominations, will be issued to
the transferee or transferees in exchange theretofore; and this Note, with or
without others of the same series, may in like manner be exchanged for one or
more new Notes of the same series of other authorized denominations but of the
same aggregate principal amount; all upon payment of the charges and subject to
the terms and conditions set forth in the Indenture.
-4-
<PAGE>
The Company and the Trustees may deem and treat the Person in whose
name this Note is registered as the absolute owner hereof for the purpose of
receiving payment of, or on account of, the principal hereof and interest due
hereon, and for all other purposes, and neither the Company nor the Trustees
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, or the
interest or premium (if any) on, this Note, or for any claim based hereon or on
the Indenture or any Indenture Supplemental thereto, against any partner, past,
present or future, of the Company (including the General Partner), or of any
predecessor or successor, heir or assignee of any such partner as such, or any
stockholder, director, officer or employee of any such partner, either directly
or through the Company or any such predecessor or successor, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability, whether at common law,
in equity, by any constitution, statute or otherwise, being released by every
owner hereof by the acceptance of this Note and as part of the consideration for
the issue hereof, and being likewise released by the terms of the Indenture.
This Note shall not be entitled to any benefit under the Indenture or
any Indenture Supplemental thereto, or become valid or obligatory for any
purpose, until PNC Bank, National Association, formerly Pittsburgh National
Bank, the Trustee under the Indenture, or a successor Trustee thereto under the
Indenture, shall have signed the form of certificate imprinted hereon.
THIS NOTE IS BEING DELIVERED AND IS INTENDED TO BE PERFORMED IN THE
STATE OF NEW YORK, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
LAW OF SUCH STATE.
-5-
<PAGE>
IN WITNESS WHEREOF, Buckeye Pipe Line Company, L.P., has caused this
Note to be signed in its name by its General Partner.
Dated BUCKEYE PIPE LINE COMPANY, L.P.
By Buckeye Pipe Line Company,
a Delaware Corporation
as General Partner
By............................
[Vice] President
(Corporate Seal)
Attest:
............................
[Assistant] Secretary of
Buckeye Pipe Line
Company, a Delaware
Corporation
[FORM OF TRUSTEE'S CERTIFICATE]
This Note is the Series N Note described in the within-mentioned
Indenture.
PNC BANK, NATIONAL ASSOCIATION
formerly Pittsburgh National
Bank
Trustee,
By............................
Authorized Signatory
; and
WHEREAS, all the requirements of law and the Partnership Agreement
have been fully complied with and all other acts and things necessary to make
the 1994 Notes, when executed by the Company, authenticated and delivered by the
Trustee and duly issued, the valid and legally binding obligations of the
Company, and to constitute the Indenture a valid, binding and legal instrument
for the security of the Notes, have been done and performed;
-6-
<PAGE>
2. Amendments to Article One of the Indenture.
------------------------------------------
(a) The definition of the term "Called Principal" set forth in
Article One of the Indenture is hereby amended in its entirety to read as
follows:
"Called Principal" shall mean, with respect to any 1986 Note,
1993 Note or 1994 Note, the principal of such Note that is to be
redeemed pursuant to (S) 2.12 hereof, (S) 2.13 hereof or (S) 2.14
hereof, respectively, or is declared to be immediately due and payable
pursuant to Article Eight.
(b) The definition of the term "Discounted Value" set forth in
Article One of the Indenture is hereby amended in its entirety to read as
follows:
"Discounted Value" shall mean, with respect to the Called
Principal of any 1986 Note, 1993 Note or 1994 Note, the amount
calculated by discounting all Remaining Scheduled Payments with
respect to such Called Principal from their respective scheduled due
dates to the Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a discount factor
(applied on a semiannual basis) equal to the Reinvestment Yield with
respect to such Called Principal.
(c) The definition of a new defined term in the Indenture shall
be inserted into Article One of the Indenture as follows:
"1994 Notes" shall have the meaning set forth in (S) 2.14.
(d) The definition of the term "Reinvestment Yield" set forth in
Article One of the Indenture is hereby amended in its entirety to read as
follows:
"Reinvestment Yield" shall mean, with respect to the Called
Principal of any 1986 Note, the yield to maturity implied by the
Treasury Constant Maturity Series yields reported (for the latest day
for which such yields shall have been so reported at the commencement
of business on the Business Day next preceding the Settlement Date
with respect to such Called Principal or, in the case of a redemption
pursuant to (S) 2.12(b), the Business Day next preceding the date of
the notice with respect to such Called Principal mailed to Holders of
1986 Notes pursuant to (S) 5.01) in Federal Reserve Statistical
Release H.15 (519) (or any comparable successor publication) for
actively
-7-
<PAGE>
traded U.S. Treasury securities having a constant maturity equal to
the remaining weighted average life to final maturity (calculated in
accordance with accepted financial practice) of such Called Principal
as of such Settlement Date. Such implied yield shall be determined
(a) by calculating the remaining weighted average life to final
maturity of such Called Principal rounded to the nearest quarter-year
and (b) if necessary, by interpolating linearly between Treasury
Constant Maturity Series yields.
With respect to the Called Principal of any 1993 Note or 1994
Note, "Reinvestment Yield" shall mean the yield to maturity implied by
(i) the yields reported, as of 10:00 A.M. (New York City local time)
on the Business Day next preceding the Settlement Date with respect to
such Called Principal, on the display designated as "Page 678" on the
Telerate Service (or such other display as may replace Page 678 on the
Telerate Service) for actively traded U.S. Treasury securities having
a maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date, or if such yields shall not be
reported as of such time or the yields reported as of such time shall
not be ascertainable, (ii) the Treasury Constant Maturity Series
yields reported, for the latest day for which such yields shall have
been so reported as of the Business Day next preceding the Settlement
Date with respect to such Called Principal, in Federal Reserve
Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a
constant maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date. Such implied yield shall be
determined, if necessary, by (a) converting U.S. Treasury bill
quotations to bond-equivalent yield in accordance with accepted
financial practice and (b) interpolating linearly between yields
reported for various maturities.
(e) The definition of the term "Settlement Date" set forth in
Article One of the Indenture is hereby amended in its entirety to read as
follows:
"Settlement Date" shall mean, with respect to the Called
Principal of any Note, the date on which such Called Principal is to
be redeemed pursuant to (S) 2.12, (S) 2.13 or (S) 2.14, as
appropriate, or is declared to be immediately due and payable pursuant
to Article Eight.
-8-
<PAGE>
(f) The definition of the term "Yield-Maintenance Premium" set
forth in Article One of the Indenture is hereby amended in its entirety to
read as follows:
"Yield-Maintenance Premium" shall mean, with respect to any 1986
Note, Series K Note before December 15, 2001, Series L Note, Series M
Note or Series N Note before December 15, 2004, a premium equal to the
excess, if any, of the Discounted Value of the Called Principal of
such Note over the sum of such Called Principal plus interest accrued
thereon as of (including interest due on) the Settlement Date with
respect to such Called Principal. With respect to any Series K Note
on or after December 15, 2001, "Yield-Maintenance Premium" shall mean
the amount determined in accordance with the following schedule with
respect to each Series K Note so redeemed:
-9-
<PAGE>
<TABLE>
<CAPTION>
==================================================================
Yield Maintenance Premium
Expressed as Percentage of the
Date of Redemption Principal Amount Redeemed
- ------------------------------------------------------------------
<S> <C>
After December 14, 2001 and on
or before December 14, 2002 7.11%
- ------------------------------------------------------------------
After December 14, 2002 and on
or before December 14, 2003 5.93%
- ------------------------------------------------------------------
After December 14, 2003 and on
or before December 14, 2004 4.74%
- ------------------------------------------------------------------
After December 14, 2004 and on
or before December 14, 2005 3.56%
- ------------------------------------------------------------------
After December 14, 2005 and on
or before December 14, 2006 2.37%
- ------------------------------------------------------------------
After December 14, 2006 and on
or before December 14, 2007 1.19%
- ------------------------------------------------------------------
After December 14, 2007 0%
==================================================================
</TABLE>
With respect to any Series N Note on or after December 15, 2004,
"Yield-Maintenance Premium" shall mean the amount determined in
accordance with the following schedule with respect to each Series N
Note so redeemed:
<TABLE>
<CAPTION>
==================================================================
Yield Maintenance Premium
Expressed as Percentage of the
Date of Redemption Principal Amount Redeemed
- ------------------------------------------------------------------
<S> <C>
After December 14, 2004 and on
or before December 14, 2005 7.93%
- ------------------------------------------------------------------
After December 14, 2005 and on
or before December 14, 2006 6.61%
- ------------------------------------------------------------------
After December 14, 2006 and on
or before December 14, 2007 5.29%
- ------------------------------------------------------------------
After December 14, 2007 and on
or before December 14, 2008 3.97%
- ------------------------------------------------------------------
After December 14, 2008 and on
or before December 14, 2009 2.64%
- ------------------------------------------------------------------
After December 14, 2009 and on
or before December 14, 2010 1.32%
- ------------------------------------------------------------------
After December 14, 2010 0%
==================================================================
</TABLE>
-10-
<PAGE>
The Yield Maintenance Premium shall in no event be less than
zero.
3. Amendment to Article Two of the Indenture.
-----------------------------------------
Article Two of the Indenture is hereby amended by adding a new Section 2.14 to
read as follows:
(S) 2.14. A series of Additional Notes to be executed,
authenticated and delivered under and secured by this Indenture shall
be the Series N Notes, aggregating $15,000,000 principal amount
(collectively, the "1994 Notes"), such series designated as set forth
in the following table:
<TABLE>
<CAPTION>
Maximum
Annual Aggregate
Referred to Interest Principal
Designation herein as Maturity Rate Amount*
----------- ----------- -------- -------- ------------
<S> <C> <C> <C> <C>
First Mortgage Pipe Line Series N December 7.93% $15,000,000
Notes, Series N due 2010 Notes 15, 2010
</TABLE>
- -------------
*Except as expressly provided in (S) 2.04, (S) 2.07, and (S) 2.10 of the
Indenture.
and the Notes of each such series shall be issuable in denominations
of $1,000 and any integral multiple thereof, shall be substantially in
the form set forth in the recitals hereto, shall be executed,
authenticated and delivered in accordance with, and subject to, all of
the terms, conditions and covenants of this Indenture, and shall have
the following further terms and provisions:
(a) Interest on the principal amount of each of the 1994 Notes
from the date of original issue until due and payable, shall be paid,
at the rate specified in the Note, semi-annually on June 15 and
December 15 in each year and on any overdue payment of principal or
(to the extent not prohibited by law) premium or interest thereon on
the dates specified above or, at the option of the Noteholders, on
demand at the greater of (i) 1% over the rate specified above or (ii)
the rate of interest publicly announced by Morgan Guaranty Trust
Company of New York, from time to time in New York City, as its prime
rate, as shall be determined by the Trustee.
(b) Subject to the limitations set forth below, each of the 1994
Notes shall be subject to redemption, in whole at any time or from
time to time in part (in
-11-
<PAGE>
$100,000 increments and not less than $5,000,000 per occurrence), at
the option of the Company, upon notice given to the holders of the
1994 Notes to be redeemed in the manner provided in the Indenture, at
a redemption price equal to 100% of the principal amount so redeemed
plus all interest accrued and unpaid at the redemption date plus (to
the extent not prohibited by law) the Yield-Maintenance Premium, if
any, with respect to each Note so redeemed. Notwithstanding the
foregoing, no redemption of the Series N Notes may be made on or after
December 15, 2004 pursuant to this paragraph 2.14(b).
(c) Subject to the limitations set forth below, the Series N
Notes shall be subject to redemption on or subsequent to December 15,
2004, in whole or from time to time in part (in $100,000 increments
and not less than $5,000,000 per occurrence), at the option of the
Company, upon notice given to the holders of the Series N Notes to be
redeemed in the manner provided in the Indenture, at a redemption
price equal to 100% of the principal amount so redeemed plus all
interest accrued and unpaid at the redemption date plus (to the extent
not prohibited by law) the Yield Maintenance Premium determined in
accordance with the following schedule with respect to each Series N
Note so redeemed:
<TABLE>
<CAPTION>
==================================================================
Yield Maintenance Premium
Expressed as Percentage of the
Date of Redemption Principal Amount Redeemed
- ------------------------------------------------------------------
<S> <C>
After December 14, 2004 and on
or before December 14, 2005 7.93%
- ------------------------------------------------------------------
After December 14, 2005 and on
or before December 14, 2006 6.61%
- ------------------------------------------------------------------
After December 14, 2006 and on
or before December 14, 2007 5.29%
- ------------------------------------------------------------------
After December 14, 2007 and on
or before December 14, 2008 3.97%
- ------------------------------------------------------------------
After December 14, 2008 and on
or before December 14, 2009 2.64%
- ------------------------------------------------------------------
After December 14, 2009 and on
or before December 14, 2010 1.32%
- ------------------------------------------------------------------
After December 14, 2010 0%
==================================================================
</TABLE>
-12-
<PAGE>
(d) The 1994 Notes are also subject to redemption in the
circumstances set forth in (S) 7.01(c).
The principal amount of any series of Notes to be redeemed
pursuant to the provisions of (S) 2.14(b) or 2.14(c) and the principal
amount of any Notes to be redeemed pursuant to (S) 7.01(c) shall be
pro-rated among the Holders of the Notes of said series in the
proportion that their respective holdings bear to the aggregate
principal amount of Notes of said series Outstanding on the date of
selection. The Trustee shall make such adjustments in the principal
amount of the Notes of each Holder to be redeemed so that such amount
shall, in every case, be $1,000 or an integral multiple thereof.
4. Amendments to Article Five of the Indenture. Section 5.01 of the
-------------------------------------------
Indenture is hereby amended by adding a new paragraph to such Section as its
third paragraph to read as follows:
With respect to 1993 Notes or 1994 Notes, the Company's notice of
redemption shall also specify whether the optional redemption is being
made pursuant to (S)2.13(b) or (S)2.13(c) hereof (in the case of the
1993 Notes), or pursuant to (S) 2.14(b) or 2.14(c) hereof (in the case
of the 1994 Notes). Once notice of redemption has been given as
hereinabove provided, the principal amount of the Notes specified in
such notice, together with (to the extent not prohibited by law) the
Yield-Maintenance Premium (if any) with respect thereto shall become
due and payable on the redemption date and, as to principal, applied
to required payments thereon in the inverse order of their scheduled
due dates.
5. This Fifth Supplement may be executed in several counterparts,
each of which shall constitute an original, but all of which together shall
constitute one and the same instrument.
-13-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Fifth Supplement to be
executed on its behalf by its General Partner, by the President or one of the
Vice President of the General Partner, and the corporate seal of the General
Partner to be hereto affixed and said seal and this Indenture to be attested by
the General Partner's Secretary or one of its Assistant Secretaries; and the
Trustee has caused this Fifth Supplement to be executed on its behalf by one of
its Vice Presidents, and its corporate seal to be hereto affixed and said seal
and this Indenture to be attested by one of its Assistant Secretaries; and the
Individual Trustee has affixed his hand and seal hereto; all as of the 30th day
of March, one thousand nine hundred and ninety-four.
Witness BUCKEYE PIPE LINE COMPANY, L.P.
- ---------------------------- By: BUCKEYE PIPE LINE COMPANY,
James H. Carroll a Delaware corporation, as
- ---------------------------- general partner
Witness By: /s/ Steven C. Ramsey
---------------------------
Name: Steven C. Ramsey
- ---------------------------- Title: Vice President
C. Richard Wilson (Corporate Seal)
- ---------------------------- Attest:
/s/ Arthur Rosenblatt
------------------------------
Name: Arthur Rosenblatt
Title: Assistant Secretary
Witness PNC BANK, NATIONAL ASSOCIATION,
formerly Pittsburgh National Bank,
as Trustee
- ----------------------------
Sherry Locke By: /s/ F.J. Deramo
- ---------------------------- --------------------------------
Name: F.J. Deramo
Witness Title: Vice President
- ---------------------------- (Corporate Seal)
Kathy DiPasquale Attest:
- ----------------------------
/s/ Amy R. Howcroft
-----------------------------------
Name: Amy R. Howcroft
Title: Assistant Vice President
-14-
<PAGE>
Witness J.G. ROUTH, as Individual Trustee
- ----------------------------
Sherry Locke By: /s/ J.G. Routh
- ---------------------------- --------------------------------
Name: J.G. Routh
Witness Title:
- ----------------------------
Kathy DiPasquale
- ----------------------------
I hereby certify that the correct address
of the Trustee is:
One Oliver Plaza
Pittsburgh, PA 15265
By: /s/ F.J. Deramo
------------------------
For Trustee
I hereby certify that the correct address
of the Individual Trustee is:
308 Depot Street
Jamestown, PA 16134
By: /s/ J.G. Routh
------------------------
For Trustee
This instrument prepared by:
James H. Carroll, Esq.
Morgan, Lewis & Bockius
2000 One Logan Square
Philadelphia, PA 19103
-15-
<PAGE>
COMMONWEALTH OF PENNSYLVANIA )
) ss.:
COUNTY OF LEHIGH )
On the _____ day of March, 1994, before me personally came Steven C. Ramsey, to
me known, who, being by me duly sworn, did depose and say that he resides at No.
598 Bair Road, Berwyn, Pennsylvania 19312; that he is the Vice President of
Buckeye Pipe Line Company, the corporation described in and which executed the
foregoing instrument; which corporation is a general partner of Buckeye Pipe
Line Company, L.P., the Delaware limited partnership described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation; and that he
signed his name thereto by like order.
------------------------------
Notary Public
-16-
<PAGE>
COMMONWEALTH OF PENNSYLVANIA )
) ss.:
COUNTY OF ALLEGHENY )
On the ____ day of March, 1994, before me personally came F.J. Deramo, to me
known, who, being by me duly sworn, did depose and say that (s)he resides at No.
217 Chestnut Road, Sewickley, Pennsylvania 15143; that he is the Vice President
of PNC Bank, National Association, the corporation described in and which
executed the foregoing instrument; that (s)he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation;
and that he signed his name thereto by like order.
------------------------------
Notary Public
-17-
<PAGE>
COMMONWEALTH OF PENNSYLVANIA )
) ss.:
COUNTY OF ALLEGHENY )
On the ____ day of March, 1994, before me personally came J. G. Routh, to me
known to be the individual described in and who executed the foregoing
instrument in the capacity therein stated, and acknowledged that he executed the
same.
------------------------------
Notary Public
-18-
<PAGE>
SCHEDULE 1
The Indenture of Mortgage and Deed of Trust and Security Agreement,
dated as of December 15, 1986, was recorded on ______________________, 198__ in
the land records in and for the [Town] [County] of ____________________, State
of __________________ at Mortgage Book (Folio) _____________, Page
_______________.
-19-
<PAGE>
EXHIBIT A TO FIFTH SUPPLEMENTAL INDENTURE
Recording Jursidictions
-----------------------
<TABLE>
<CAPTION>
State
or Recordation Book/
Commonwealth County or Town Date Liber Page
- --------------- -------------- ------------------- ----- ----
<S> <C> <C> <C> <C>
Connecticut Hartford
--------
E. Hartford
E. Windsor
S. Windsor
Enfield
Glastonbury
Hartford
Windsor
Rocky Hill
Wethersfield
Middlesex
---------
Cromwell
Durham
Portland
Middlefield
Middletown
New Haven
---------
New Haven
Wallingford
E. Haven
N. Haven
Illinois Crawford
Lawrence N/A - property sold
since 1986
Indiana Adams
Boone
Clay
Delaware
Fulton
Grant
Hamilton
Hendricks
Huntington
Jay
Lake
Laporte
Madison
Marion
</TABLE>
A-1
<PAGE>
<TABLE>
<CAPTION>
State
or Recordation Book/
Commonwealth County or Town Date Liber Page
- --------------- -------------- ------------------- ----- ----
<S> <C> <C> <C> <C>
Indiana Miami
Porter
Pulaski
Putnam
Starke
Sullivan
Tipton
Vigo
Wabash
Wells
Massachusetts Hampden
Michigan Bay
Genessee
Macomb
Monroe
Oakland
Saginaw
St. Clair N/A - property sold
since 1986
Shiawassee
Wayne
New Jersey Hunterdon
Middlesex
Somerset
Union
New York Broome
Cayuga
Cortland
Kings
Livingston
Madison
Monroe
Nassau
Oneida
Onondaga
Ontario
Oswego
Queens
Richmond
Seneca
Tioga
Tompkins
</TABLE>
A-2
<PAGE>
<TABLE>
<CAPTION>
State
or Recordation Book/
Commonwealth County or Town Date Liber Page
- --------------- -------------- ------------------- ----- ----
<S> <C> <C> <C> <C>
Ohio Allen
Auglaize
Champaign
Clark
Columbiana
Cuyahoga
Franklin
Geauga
Greene
Hancock
Hardin
Huron
Logan
Loraine
Lucas
Madison
Mahoning
Medina
Mercer
Montgomery
Ottawa
Portage
Sandusky
Seneca
Shelby
Summit
Trumball
Union
Van Wert
Warren
Wood
Pennsylvania Alleghany
Armstrong
Beaver
Berks
Blair
Bucks
Butler
Cambria
Carbon
Cumberland
</TABLE>
A-3
<PAGE>
<TABLE>
<CAPTION>
State
or Recordation Book/
Commonwealth County or Town Date Liber Page
- --------------- -------------- ------------------- ----- ----
<S> <C> <C> <C> <C>
Pennsylvania Dauphin
Huntingdon
Indiana
Juniata
Lackawanna
Lebanon
Lehigh
Luzerne
Northampton
Perry
Susquehanna
Wyoming
Washington Pierce
</TABLE>
A-4
<PAGE>
EXHIBIT (11)
BUCKEYE PARTNERS, L.P.
COMPUTATION OF EARNINGS PER UNIT
(In thousands, except for Units and per Unit amounts)
<TABLE>
<CAPTION>
Quarter Ended March 31,
-------------------------
1994 1993
---- ----
<S> <C> <C>
Income from continuing operations
before extraordinary charge $ 11,784 $ 9,338
Loss from discontinued operations - (127)
Extraordinary charge on early
extinguishment of debt (1,569) -
----------- -----------
Net income $ 10,215 $ 9,211
=========== ===========
Primary earnings per Unit:
Income from continuing operations
before extraordinary charge $ 0.97 $ 0.77
Loss from discontinued operations - (0.01)
Extraordinary charge on early
extinguishment of debt (0.13) -
----------- -----------
Net Income $ 0.84 $ 0.76
=========== ===========
Fully-diluted earnings per Unit:
Income from continuing operations
before extraordinary charge $ 0.97 $ 0.77
Loss from discontinued operations - (0.01)
Extraordinary charge on early
extinguishment of debt (0.13) -
----------- -----------
Net income $ 0.84 $ 0.76
=========== ===========
Average number of Units outstanding:
Units outstanding at March 31, 12,121,212 12,121,212
Exercise of Options reduced by the
number of Units purchased with
proceeds (Primary) 25,581 13,741
----------- -----------
Total Units outstanding - Primary 12,146,793 12,134,953
=========== ===========
Units outstanding at March 31, 12,121,212 12,121,212
Exercise of Options reduced by the
number of Units purchased with
proceeds (Fully-diluted) 25,581 16,032
----------- -----------
Total Units outstanding -
Fully-diluted 12,146,793 12,137,244
=========== ===========
</TABLE>
- -----------------------
Although not required to be presented in the income statement under provisions
of APB Opinion No. 15, this calculation is submitted in accordance with
Regulation S-K item 601(b)(11).
