As filed with the Securities and Exchange Commission on December 9, 2014
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
MIDCOAST ENERGY PARTNERS, L.P. *
(Exact name of registrant as specified in its charter)
|
|
|
Delaware |
|
61-1714064 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification Number) |
1100 Louisiana
Suite 3300
Houston,
Texas 77002
(Address of principal executive offices and zip code)
(713) 821-2000
(Registrants telephone number, including area code)
Chris Kaitson
1100
Louisiana, Suite 3300
Houston, Texas 77002
(713) 821-2000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Laura
J. McMahon
Baker & Hostetler LLP
811 Main Street, Suite 1100
Houston, Texas 77002
(713) 646-1301
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the
following box. ¨
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to
Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ¨
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
|
|
|
|
|
|
|
Large accelerated filer |
|
¨ |
|
Accelerated filer |
|
¨ |
Non-accelerated filer |
|
x (Do not check if a smaller reporting company) |
|
Smaller reporting company |
|
¨ |
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
Title of each class of
securities to be registered(1)(2) |
|
Proposed maximum
aggregate offering
price |
|
Amount of
registration fee |
Class A Common Units(3) |
|
|
|
|
Senior Debt Securities(4) |
|
|
|
|
Subordinated Debt Securities(4) |
|
|
|
|
Guarantees of Debt Securities by Co-Registrant Guarantors(5) |
|
|
|
|
Total |
|
$1,500,000,000 |
|
$174,300(6) |
|
|
(1) |
Securities registered hereunder may be sold separately, together or as units with other securities registered hereunder. |
(2) |
The registrant is registering an indeterminate aggregate principal amount and number of securities of each identified class of securities up to a proposed aggregate offering price of $1,500,000,000, which may be offered
from time to time in unspecified numbers and at indeterminate prices, and as may be issuable in exchange for, or upon the exercise, conversion, redemption, repurchase or exercise of any securities registered hereunder. |
(3) |
The amount of securities registered hereunder shall be deemed to include any additional securities issuable as a result of any split, in-kind distribution or other similar transaction. |
(4) |
If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount at maturity as shall result in an aggregate offering price not
to exceed $1,500,000,000, less the aggregate dollar amount of all securities previously issued hereunder. |
(5) |
The subsidiaries of Midcoast Energy Partners, L.P. named as Co-Registrant Guarantors and any of its future subsidiaries of the registrant may fully and unconditionally guarantee the debt securities of the registrant. No
additional consideration will be received for the guarantees. In accordance with Rule 457(n), no separate fee is payable with respect to the guarantees of the debt securities being registered. |
(6) |
Calculated pursuant to Rule 457(o) under the Securities Act. Pursuant to Rule 457(p), the payment of this filing fee is intended to be offset by the filing fee in the amount of $174,300 paid by the registrant applicable
to its Form S-3 Registration Statement, Registration Statement No. 333-200304, filed November 17, 2014, which was subsequently withdrawn. |
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
*TABLE OF CO-REGISTRANT GUARANTORS
|
|
|
|
|
|
|
|
|
Company Name |
|
State of Organization |
|
|
I.R.S. Employer Identification Number |
|
ELTM, L.P. |
|
|
Delaware |
|
|
|
76-0378638 |
|
Enbridge Energy Marketing, L.L.C. |
|
|
Delaware |
|
|
|
76-0378638 |
|
Enbridge G & P (East Texas) L.P. |
|
|
Texas |
|
|
|
76-0378638 |
|
Enbridge G & P (North Texas) L.P. |
|
|
Texas |
|
|
|
76-0378638 |
|
Enbridge G & P (Oklahoma) L.P. |
|
|
Texas |
|
|
|
76-0378638 |
|
Enbridge Gathering (North Texas) L.P. |
|
|
Texas |
|
|
|
76-0378638 |
|
Enbridge Holdings (Texas Systems) L.L.C. |
|
|
Delaware |
|
|
|
76-0378638 |
|
Enbridge Liquids Marketing (North Texas) L.P. |
|
|
Delaware |
|
|
|
76-0378638 |
|
Enbridge Marketing (North Texas) L.P. |
|
|
Delaware |
|
|
|
76-0378638 |
|
Enbridge Marketing (U.S.) L.L.C. |
|
|
Delaware |
|
|
|
76-0378638 |
|
Enbridge Marketing (U.S.) L.P. |
|
|
Texas |
|
|
|
76-0378638 |
|
Enbridge Partners Risk Management, L.P. |
|
|
Delaware |
|
|
|
76-0378638 |
|
Enbridge Pipelines (East Texas) L.P. |
|
|
Texas |
|
|
|
76-0378638 |
|
Enbridge Pipelines (Louisiana Liquids) L.L.C. |
|
|
Delaware |
|
|
|
76-0378638 |
|
Enbridge Pipelines (North Texas) L.P. |
|
|
Texas |
|
|
|
76-0378638 |
|
Enbridge Pipelines (Oklahoma Transmission) L.L.C. |
|
|
Delaware |
|
|
|
76-0378638 |
|
Enbridge Pipelines (Texas Gathering) L.P. |
|
|
Delaware |
|
|
|
76-0378638 |
|
Enbridge Pipelines (Texas Intrastate) L.P. |
|
|
Texas |
|
|
|
76-0378638 |
|
Enbridge Pipelines (Texas Liquids) L.P. |
|
|
Texas |
|
|
|
76-0378638 |
|
Midcoast Operating, L.P. |
|
|
Texas |
|
|
|
76-0378638 |
|
Midcoast OLP GP, L.L.C. |
|
|
Delaware |
|
|
|
61-1714064 |
|
The address and phone number of each of the additional registrants is c/o Midcoast Energy Partners, L.P., 1100 Louisiana,
Suite 3300, Houston, TX 77002, (713) 821-2000.
The information in this prospectus is not complete and may be changed. The securities may
not be sold pursuant to this prospectus until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED DECEMBER 9, 2014
PROSPECTUS
$1,500,000,000
MIDCOAST ENERGY PARTNERS, L.P.
Class A Common Units
Senior Debt Securities
Subordinated Debt Securities
Guarantees of Debt Securities
We may, from
time to time, offer and sell our Class A common units, senior debt securities or subordinated debt securities. This prospectus also covers guarantees of our obligations under any debt securities, which may be given from time to time by one or
more of our existing and future subsidiaries on terms to be determined at the time of the offering. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities we will provide a prospectus
supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and the applicable prospectus
supplement and the documents incorporated by reference herein and therein carefully before you invest in our securities. This prospectus may not be used to consummate sales of securities unless accompanied by a prospectus supplement.
You should read carefully this prospectus and any prospectus supplement before you invest. You also should read the documents we have referred
you to in the Available Information section of this prospectus for information on us and for our financial statements.
The
Class A common units are listed on the New York Stock Exchange under the symbol MEP. On December 4, 2014, the last reported sale price of our Class A common units on the New York Stock Exchange was $14.26 per unit.
Investing in our Class A common units, senior debt securities or subordinated debt securities involves risks. Limited partnerships are
inherently different from corporations. You should carefully consider the risk factors beginning on page 4 of this prospectus and in any applicable prospectus supplement before you make an investment in our
securities.
Neither the Securities and Exchange Commission nor any other regulatory body has approved or disapproved of these
securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2014.
TABLE OF CONTENTS
You should rely only on the information contained in this prospectus, any prospectus supplement and the
documents we have incorporated by reference. We have not authorized anyone else to provide you different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the
information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front of such documents.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, using a
shelf registration process. Under the shelf registration process, we may sell the securities described in this prospectus in one or more public offerings. This prospectus provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that specific offering. The prospectus supplement may also add, update or change information contained in this
prospectus. If there is any inconsistency between the information in this prospectus and any prospectus supplement, you should rely on the information in that prospectus supplement. Before investing in our securities, you should carefully read both
the prospectus and any prospectus supplement together with the additional information described under the headings Available Information and Incorporation of Certain Information by Reference.
As used in this prospectus, we, us, our, the Partnership and Midcoast Partners
means Midcoast Energy Partners, L.P. and, where the context requires, includes our operating subsidiaries. In addition, we refer to Midcoast Holdings, L.L.C., our general partner, as Midcoast Holdings.
AVAILABLE INFORMATION
We file annual, quarterly and other reports and other information with the SEC. You may read and copy any document we file at the SECs
Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-732-0330 for information on the public reference room. You can also find our filings on the SECs website at http://www.sec.gov and on
our website at http://www.midcoastpartners.com. Information contained on our website is not part of this prospectus, unless specifically so designated and filed with the SEC. In addition, our reports and other information about us can be
inspected at the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
We have filed with the SEC a registration
statement on Form S-3 relating to the securities covered by this prospectus. This prospectus is a part of the registration statement and does not contain all the information in the registration statement. Whenever a reference is made in this
prospectus to a contract or other document of Midcoast Partners, the reference is only a summary and you should refer to the exhibits that are a part of the registration statement for a copy of the contract or other document. You may review a copy
of the registration statement at the SECs public reference room in Washington, D.C., as well as through the SECs website.
1
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference into this prospectus the information we have filed with the SEC, which means that we
can disclose important information to you without actually including the specific information in this prospectus by referring you to those documents. The information incorporated by reference is an important part of this prospectus and information
that we file later with the SEC will automatically update and supersede this information. Therefore, before you decide to invest in a particular offering under this shelf registration, you should always check for reports we may have filed with the
SEC after the date of this prospectus. We incorporate by reference into this prospectus the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended, including all such documents we may file with the SEC after the date of the initial registration statement and prior to effectiveness of the registration statement, until the applicable offering under this prospectus and any prospectus
supplement is terminated, in each case other than information furnished to the SEC under Item 2.02 or 7.01 of Form 8-K and which is not deemed filed under the Securities Exchange Act of 1934, as amended, and is not incorporated in this
prospectus:
|
|
|
Our Annual Report on Form 10-K for the fiscal year ended December 31, 2013, filed with the SEC on February 18, 2014; |
|
|
|
Our Quarterly Reports on Form 10-Q filed with the SEC on May 2, 2014, August 1, 2014 and November 3, 2014; |
|
|
|
Our Current Reports on Form 8-K filed with the SEC on January 16, 2014, February 14, 2014, June 19, 2014, October 6, 2014 and December 2, 2014; and |
|
|
|
The description of the Class A common units contained in our Registration Statement on Form 8-A, filed with the SEC on November 4, 2013. |
We will provide without charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral
request, a copy of any document incorporated by reference in this prospectus, other than exhibits to any such document not specifically described above. Requests for such documents should be directed to:
Investor Relations
Midcoast Energy
Partners, L.P.
1100 Louisiana, Suite 3300
Houston, Texas 77002
(855)
637-7222
mep@enbridge.com
2
MIDCOAST ENERGY PARTNERS, L.P.
We are a publicly traded Delaware limited partnership that owns and operates natural gas gathering, treating, processing, transportation and
marketing assets in the United States. Our Class A common units are traded on the New York Stock Exchange under the symbol MEP. We were formed in 2013 by Enbridge Energy Partners, L.P., or EEP, to serve as EEPs primary vehicle
for owning and growing its natural gas and natural gas liquids, or NGL, midstream business in the United States. As a pure-play U.S. natural gas and NGL midstream business, we will be able to pursue a more focused and flexible strategy, have direct
access to the equity and debt capital markets, and have the opportunity to grow through organic growth opportunities and acquisitions, including drop-down transactions from EEP.
We currently own a 51.6% controlling interest in Midcoast Operating, L.P., a Texas limited partnership that owns a network of natural gas and
NGL gathering and transportation systems, natural gas processing and treating facilities and NGL fractionation facilities primarily located in Texas and Oklahoma. Midcoast Operating also owns and operates natural gas, condensate and NGL logistics
and marketing assets that primarily support its gathering, processing and transportation business. Through our ownership of 100% of the limited liability company interests in Midcoast OLP GP, L.L.C., Midcoast Operatings general partner, we
control, manage and operate these systems. EEP has retained a 48.4% non-controlling interest in Midcoast Operating.
Our business
primarily consists of gathering unprocessed and untreated natural gas from wellhead locations and other receipt points on our systems, processing the natural gas to remove NGLs and impurities at our processing and treating facilities and
transporting the processed natural gas and NGLs to intrastate and interstate pipelines for transportation to various customers and market outlets. In addition, we also market natural gas and NGLs to wholesale customers.
Our Class A common units represent limited partner interests in us. We also have limited partner interests that are represented by
Subordinated Units and Class B common units. All of our Subordinated Units are owned by EEP. The Class A common units and Class B common units are collectively referred to in this prospectus as common units.
Our executive offices are located at 1100 Louisiana, Suite 3300, Houston, Texas 77002 and our telephone number is (713) 821-2000.
3
RISK FACTORS
Before you make a decision to invest in our securities, you should be aware that such an investment involves various risks, uncertainties
and factors including those described in this prospectus or any prospectus supplement and the documents we have incorporated by reference. If any of those risks actually occurs, our business, financial condition, results of operations or cash flows
could be materially adversely affected. We also urge you to consider carefully the discussion of risk factors in this prospectus and any prospectus supplement under the captions Risk Factors and Information Regarding
Forward-Looking Statements and in our other current filings with the SEC under the Securities Exchange Act of 1934, as amended, particularly under Risk Factors and Managements Discussion and Analysis of Financial
Condition and Results of Operations in our Annual Report on Form 10-K and our Quarterly Reports on Form 10-Q, which are incorporated by reference in this prospectus and any prospectus supplement.
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated in this prospectus by reference include forward-looking statements. These forward-looking
statements are identified as any statement that does not relate strictly to historical or current facts. They frequently use words such as anticipate, believe, continue, estimate, expect,
forecast, intend, may, plan, position, projection, strategy, target, could, should or will or the negative of those
terms or other variations of them or by comparable terminology. In particular, statements, expressed or implied, concerning future actions, conditions or events or future operating results or the ability to generate revenue, income or cash flow are
forward-looking statements. Although we believe that such forward-looking statements are reasonable based on currently available information, such statements involve risks, uncertainties and assumptions and are not guarantees of performance. Future
actions, conditions or events and future results of operations may differ materially from those expressed in these forward-looking statements. Any forward-looking statement made by us in this prospectus and the documents incorporated in this
prospectus by reference speaks only as of the date on which it is made, and we undertake no obligation to publicly update any forward-looking statement. Many of the factors that will determine these results are beyond our ability or the ability of
our affiliates to control or predict. Specific factors that could cause actual results to differ from those in the forward-looking statements include:
|
|
|
demand for, supply of, changes in forecast data for, and price trends related to, crude oil, natural gas and NGLs in the markets served by our systems, all of which may be affected by economic activity, capital
expenditures by energy producers, weather, alternative energy sources, international events, conservation and technological advances; |
|
|
|
throughput levels and rates; |
|
|
|
changes in, or challenges to, our rates; |
|
|
|
our ability to successfully identify and consummate strategic acquisitions, make cost saving changes in operations and integrate acquired assets or businesses into our existing operations; |
|
|
|
service interruptions in our natural gas systems; |
|
|
|
disruptions, cutbacks or shutdowns on the supply and/or demand side of our businesses, including natural gas and NGL producers, refineries, petrochemical plants, utilities, or other businesses for which we transport
natural gas or NGLs; |
|
|
|
changes in laws or regulations to which we are subject; |
|
|
|
our inability to borrow or otherwise access funds needed for operations, expansions or capital expenditures as a result of existing debt agreements that contain restrictive financial and other covenants;
|
|
|
|
delays or cancellations of our planned capital projects due to our inability to access the credit and capital markets on reasonable terms to obtain funding for such capital projects; |
4
|
|
|
the effects of competition, in particular, by other pipeline systems; |
|
|
|
hazards and operating risks that may not be covered fully by insurance; |
|
|
|
the condition of the credit and capital markets in the United States; and |
|
|
|
general economic conditions, including rates of inflation and interest rates. |
You should not
put undue reliance on any forward-looking statements. When considering forward-looking statements, please review the risk factors described under Risk Factors in our Annual Reports on Form 10-K, and any updates to those risk factors
included in our Quarterly Reports on Form 10-Q.
RATIO OF EARNINGS TO FIXED CHARGES
The following table contains our ratio of earnings to fixed charges for the periods indicated. For purposes of computing the ratio of earnings
to fixed charges, earnings consist of pre-tax income from continuing operations before income from equity earnings in joint ventures plus fixed charges (excluding capitalized interest), and distributed income of equity investees.
Fixed charges represent interest incurred (whether expensed or capitalized) and the portion of rental expense on operating leases deemed to be the equivalent of interest. You should read these ratios in connection with our consolidated
financial statements and the related notes included in our most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q incorporated by reference into this prospectus for matters that affect the comparability of the information
presented in the table below.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Partnership (1) |
|
|
|
Predecessor (1) |
|
|
Nine months ended September 30, 2014 |
|
Year ended December 31, |
|
|
|
2013 |
|
|
|
2012 |
|
2011 |
|
2010 |
|
2009 |
|
|
|
|
(unaudited) |
|
|
|
|
|
|
Ratio of Earnings to Fixed Charges |
|
2.37x |
|
2.77x |
|
|
|
9.19x |
|
22.15x |
|
24.78x |
|
15.14x |
(1) |
References to Predecessor refer to Midcoast Operating, L.P. and its subsidiaries. |
USE OF PROCEEDS
Unless we inform you otherwise in a prospectus supplement, we intend to use the net proceeds from the sale of the securities offered by this
prospectus and any prospectus supplement for general purposes of the Partnership. A portion of the net proceeds from the sale of the securities offered by this prospectus and any prospectus supplement may be invested temporarily in short-term
investment grade securities pending their use for such purposes.
PLAN OF DISTRIBUTION
We may use this prospectus, any accompanying prospectus supplement and any related free writing prospectus to sell the securities offered by
this prospectus and any prospectus supplement from time to time in one or more transactions as follows: (1) through agents, (2) through underwriters or dealers, (3) directly to one or more purchasers, (4) pursuant to delayed
delivery contracts or forward contracts, (5) through a combination of these methods or (6) through any other method permitted by applicable law.
5
By Agents
The securities offered by this prospectus and any prospectus supplement may be sold, from time to time, through agents designated by us. Unless
otherwise indicated in a prospectus supplement, the agents will agree to use their reasonable best efforts to solicit purchases for the period of their appointment.
By Underwriters
If underwriters are used
in the sale, the securities offered by this prospectus and any prospectus supplement will be acquired by the underwriters for their own account. The underwriters may resell the securities offered by this prospectus and any prospectus supplement in
one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of resale. The obligations of the underwriters to purchase the securities offered by this prospectus and any
prospectus supplement will be subject to certain conditions. The underwriters will be obligated to purchase all of the securities offered by this prospectus and any prospectus supplement if any of the securities are purchased. Any initial public
offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time.
If we use a
dealer in the sale, we will sell the securities offered by this prospectus and any prospectus supplement to the dealer, as principal. The dealer may then resell the securities offered by this prospectus and any prospectus supplement to the public at
varying prices to be determined by the dealer at the time of resale.
To the extent that we make sales through one or more underwriters or
agents in at-the-market offerings, we will do so pursuant to the terms of a sales agency financing agreement or other at-the-market offering arrangement between us and the underwriters or agents. If we engage in at-the-market sales pursuant to any
such agreement, we will issue and sell Class A common units through one or more underwriters or agents, which may act on an agency basis or on a principal basis. During the term of any such agreement, we may sell Class A common units on a
daily basis in exchange transactions or otherwise as we agree with the underwriters or agents. The agreement will provide that any Class A common units sold will be sold at prices related to the then prevailing market prices for such
securities. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid cannot be determined at this time. Pursuant to the terms of the agreement, we also may agree to sell, and the relevant underwriters or agents may
agree to solicit offers to purchase, blocks of Class A common units. The terms of each such agreement will be set forth in more detail in the applicable prospectus supplement and any related free writing prospectus. In the event that any
underwriter or agent acts as principal, or broker-dealer acts as underwriter, it may engage in certain transactions that stabilize, maintain, or otherwise affect the price of Class A common units. We will describe any such activities in the
prospectus supplement or any related free writing prospectus relating to the transaction.
Direct Sales
The securities offered by this prospectus and any prospectus supplement may also be sold directly by us from time to time. In this case, no
underwriters or agents would be involved. We may use electronic media, including the Internet, to sell offered securities directly.
Delayed Delivery
Contracts or Forward Contracts
If indicated in the prospectus supplement, we will authorize agents, underwriters or dealers to solicit
offers to purchase Class A common units from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts or forward contracts providing for payment or delivery on a specified date in the future
at prices determined as described in the prospectus supplement. Such contracts will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth the commission payable for solicitation of
such contracts.
6
General Information
Underwriters, dealers and agents that participate in the distribution of the securities offered by this prospectus and any prospectus
supplement may be underwriters as defined in the Securities Act of 1933, as amended, and any discounts or commissions received by them from us and any profit on the resale of the securities by them may be treated as underwriting discounts and
commissions under the Securities Act, as amended. Any underwriters or agents will be identified and their compensation will be described in a prospectus supplement.
We may have agreements with the underwriters, dealers and agents to indemnify them against certain civil liabilities, including liabilities
under the Securities Act of 1933, as amended, or to contribute with respect to payments which the underwriters, dealers or agents may be required to make because of those liabilities.
Underwriters, dealers and agents or their affiliates may engage in transactions with, or perform services for, us or our affiliates in the
ordinary course of their businesses.
7
DESCRIPTION OF OUR CLASS A COMMON UNITS
General
Our Class A common units
represent limited partner interests in us. The holders of our common units, along with the holders of our subordinated units, are entitled to participate in partnership distributions and are entitled to exercise the rights and privileges available
to limited partners under our partnership agreement.
Our Class A common units are listed on the New York Stock Exchange under the
symbol MEP.
Number of Class A Common Units
As of December 4, 2014, we had 22,610,056 Class A common units outstanding. Our partnership agreement does not limit the number of
common units we may issue.
Transfer Agent and Registrar
Duties
Computershare Trust Company, N.A. is the registrar and transfer agent for the Class A common units and receives fees from us for serving
in such capacities. All fees charged by the transfer agent for transfers of Class A common units will be borne by us and not by our unitholders, except that fees similar to those customarily paid by stockholders for surety bond premiums to
replace lost or stolen certificates, taxes or other governmental charges, special charges for services requested by a Class A common unitholder and other similar fees or charges will be borne by the affected Class A common unitholder.
Class A common unitholders will not be charged for disbursements of our cash distributions. We have agreed to indemnify the transfer agent, its agents and each of their respective stockholders, directors, officers and employees against all
claims and losses that may arise out of acts performed or omitted for its activities in that capacity, except for any liability due to any gross negligence or intentional misconduct of the indemnified person or entity.
Resignation or Removal
The transfer agent may at any time resign, by notice to us, or be removed by us, such resignation or removal to become effective upon the
appointment by our general partner of a successor transfer agent and registrar and its acceptance of such appointment. If no successor has been appointed and accepted such appointment within 30 days after notice of such resignation or removal,
our general partner is authorized to act as the transfer agent and registrar until a successor is appointed.
Transfer of
Class A Common Units
Until a Class A common unit has been transferred on our books, we and the transfer agent may treat
the record holder thereof as the absolute owner for all purposes, notwithstanding any notice to the contrary or any notation or other writing on the certificate representing such Class A common unit, except as otherwise required by law or stock
exchange rules.
By transfer of Class A common units in accordance with our partnership agreement, each transferee of such units shall
be admitted as a limited partner with respect to the units transferred when such transfer and admission are reflected in our books and records. Each transferee:
|
|
|
will be deemed to have agreed to be bound by the terms and conditions of, and is deemed to have executed, our partnership agreement; |
|
|
|
represents and warrants that the transferee has the right, power, authority and capacity to enter into our partnership agreement; and |
|
|
|
gives the consents, waivers and approvals contained in our partnership agreement. |
8
Our general partner will cause any transfers to be recorded on our books and records no less
frequently than quarterly.
We may, at our discretion, treat the nominee holder of a unit as the absolute owner. In that case, the
beneficial holders rights are limited solely to those that it has against the nominee holder as a result of any agreement between the beneficial owner and the nominee holder.
Class A common units are securities and transferable according to the laws governing the transfer of securities. In addition to other
rights acquired upon transfer, the transferor gives the transferee the right to become a substituted limited partner in our partnership for the transferred units.
Other Classes of Limited Partner Interests
In addition to our Class A common units, as of December 4, 2014, we had 22,610,056 subordinated units outstanding. Our outstanding
subordinated units are held entirely by EEP. The principal differences between our Class A common units and subordinated units are that:
|
|
|
for any quarter during the subordination period, holders of the subordinated units will not be entitled to receive any distribution until holders of the common units have received the minimum quarterly distribution for
such quarter plus any arrearages in the payment of the minimum quarterly distribution from prior quarters during the subordination period; |
|
|
|
Subordinated units will not accrue arrearages; and |
|
|
|
holders of Class A common units will receive a special allocation of gross income for each taxable year during which subordinated units are outstanding that would otherwise be allocable to holders of subordinated
units. |
As of December 4, 2014, we had no outstanding Class B units. The relative rights and preferences of the
Class A common units and Class B common units are nearly identical in all respects, except for a special allocation of gross income to the holders of Class A common units for each taxable year during which Class B common units are
outstanding. This special allocation also applies to any taxable year during which subordinated units are outstanding. Subject to certain conditions related to fungibility, the Class B common units will be convertible at the option of the holders
into Class A common units at any time that our general partner determines, based on the advice of counsel, that the Class B common units to be converted have like intrinsic economic and federal income tax characteristics to the Class A
common units.
Summary of Partnership Agreement
Below is a brief summary of certain provisions of our partnership agreement, the discussion of which is qualified in its entirety by reference
to our First Amended and Restated Agreement of Limited Partnership, which is incorporated in this prospectus by reference.
Voting Rights.
The following is a summary of the unitholder vote required for the matters specified below. Matters that require the approval of a unit
majority require:
|
|
|
during the subordination period, the approval of a majority of the outstanding common units, excluding those common units held by our general partner and its affiliates, and a majority of the outstanding subordinated
units, voting as separate classes; and |
|
|
|
after the subordination period, the approval of a majority of the outstanding Class A common units and Class B common units, voting together as a single class. |
9
In voting their Class A common units, Class B common units and subordinated units, our
general partner and its affiliates will have no duty or obligation whatsoever to us or the limited partners, including any duty to act in the best interests of us or the limited partners, other than the implied contractual covenant of good faith and
fair dealing.
|
|
|
Issuance of additional units |
|
No approval rights. |
|
|
Amendment of our partnership agreement |
|
Certain amendments may be made by the general partner without the approval of the unitholders. Other amendments generally require the approval of a unit majority. |
|
|
Merger of our partnership or the sale of all or substantially all of our assets |
|
Unit majority. |
|
|
Dissolution of our partnership |
|
Unit majority. |
|
|
Continuation of our business upon dissolution |
|
Unit majority. |
|
|
Withdrawal of the general partner |
|
Under most circumstances, the approval of unitholders holding at least a majority of the outstanding Class A common units and Class B common units, voting together as a single class (excluding Class A common units and Class B common
units held by our general partner and its affiliates), is required for the withdrawal of the general partner prior to December 31, 2023, in a manner which would cause a dissolution of our partnership. |
|
|
Removal of the general partner |
|
Not less than 66 2/3% of the outstanding units, voting as a single class, including units held by our general partner and
its affiliates. |
|
|
Transfer of the general partner interest |
|
Our general partner may transfer all, but not less than all, of its general partner interest in us without a vote of our unitholders to an affiliate or another person in connection with its merger or consolidation with or into, or
sale of all or substantially all of its assets to, such person. The approval of a majority of the outstanding Class A common units and Class B common units, voting together as a single class (excluding Class A common units and Class B common units
held by our general partner and its affiliates), is required in other circumstances for a transfer of the general partner interest to a third party prior to December 31, 2023. |
|
|
Transfer of incentive distribution rights |
|
Our general partner may transfer any or all of its incentive distribution rights to an affiliate or another person without a vote of our unitholders. |
|
|
Reset of incentive distribution levels |
|
No approval right. |
|
|
Transfer of ownership interests in our general partner |
|
No approval right. |
10
Issuance of Additional Securities
Our partnership agreement authorizes us to issue an unlimited number of additional partnership interests, including partnership interests
senior to the Class A common units, for the consideration and on the terms and conditions determined by our general partner without the approval of the unitholders.
It is possible that we will fund acquisitions through the issuance of additional Class A common units, Class B common units, subordinated
units or other partnership interests. Holders of any additional units we issue will be entitled to share equally with the then-existing holders of our units in our distributions of available cash. In addition, the issuance of additional units or
other partnership interests may dilute the value of the interests of our then-existing unitholders in our net assets.
In accordance with
Delaware law and the provisions of our partnership agreement, we may also issue additional partnership interests that, as determined by our general partner, may have special voting rights to which the Class A common units are not entitled.
Upon issuance of additional limited partner interests (other than the issuance of common units upon any exercise by the underwriters of their
option to purchase additional common units, the issuance of Class B common units in connection with a reset of the incentive distribution target levels, the issuance of Class B common units upon conversion of outstanding subordinated units) or the
issuance of Class A common units upon the conversion of any outstanding Class B common unit following the end of the subordination period, our general partner will be entitled, but not required, to make additional capital contributions to the
extent necessary to maintain its 2% general partner interest in us. Our general partners 2% interest in us will be reduced if we issue additional units in the future and our general partner does not contribute a proportionate amount of capital
to us to maintain its 2% general partner interest. Moreover, our general partner will have the right, which it may from time to time assign in whole or in part to any of its affiliates, to purchase Class A common units, Class B common units,
subordinated units or other partnership interests whenever, and on the same terms that, we issue those interests to persons other than our general partner and its affiliates, to the extent necessary to maintain the percentage interest of the general
partner and its affiliates, including such interest represented by Class A common units, Class B common units and subordinated units, that existed immediately prior to each issuance. The other holders of our Class A common units and Class
B common units will not have preemptive rights to acquire additional Class A common units or Class B common units or other partnership interests.
Amendment of Our Partnership Agreement
General
Amendments to our
partnership agreement may be proposed only by our general partner. However, our general partner will have no duty or obligation to propose any amendment and may decline to do so free of any duty or obligation whatsoever to us or our limited
partners, including any duty to act in the best interests of us or the limited partners, other than the implied contractual covenant of good faith and fair dealing. In order to adopt a proposed amendment, other than the amendments discussed below,
our general partner is required to seek written approval of the holders of the number of units required to approve the amendment or call a meeting of the limited partners to consider and vote upon the proposed amendment. Except as described below,
an amendment must be approved by a majority of the outstanding units, voting together as a single class.
No unitholder approval
Our general partner may generally make amendments to our partnership agreement without the approval of any limited partner to reflect:
|
|
|
a change in our name, the location of our principal office, our registered agent or our registered office; |
|
|
|
the admission, substitution, withdrawal or removal of partners in accordance with our partnership agreement; |
11
|
|
|
a change that our general partner determines to be necessary or appropriate to qualify or continue our qualification as a limited partnership or a partnership in which the limited partners have limited liability under
the laws of any state or to ensure that neither we nor any of our subsidiaries will be treated as an association taxable as a corporation or otherwise taxed as an entity for federal income tax purposes; |
|
|
|
an amendment that is necessary, in the opinion of our counsel, to prevent us or our general partner or its directors, officers, agents or trustees, from in any manner, being subjected to the provisions of the Investment
Company Act of 1940, the Investment Advisors Act of 1940, or plan asset regulations adopted under the Employee Retirement Income Security Act of 1974, each as amended, whether or not substantially similar to plan asset regulations
currently applied or proposed by the U.S. Department of Labor; |
|
|
|
an amendment that our general partner determines to be necessary or appropriate in connection with the authorization or issuance of additional partnership interests; |
|
|
|
any amendment expressly permitted in our partnership agreement to be made by our general partner acting alone; |
|
|
|
an amendment effected, necessitated or contemplated by a merger agreement or plan of conversion that has been approved under the terms of our partnership agreement; |
|
|
|
any amendment that our general partner determines to be necessary or appropriate to reflect and account for the formation by us of, or our investment in, any corporation, partnership or other entity, in connection with
our conduct of activities permitted by our partnership agreement; |
|
|
|
a change in our fiscal year or taxable year and any other changes that our general partner determines to be necessary or appropriate as a result of such change; |
|
|
|
mergers with, conveyances to, or conversions into, another limited liability entity that is newly formed and has no assets, liabilities or operations at the time of the merger, conveyance or conversion other than those
it receives by way of the merger, conveyance or conversion; or |
|
|
|
any other amendments substantially similar to any of the matters described in the clauses above. |
In addition, our general partner may make amendments to our partnership agreement without the approval of any limited partner if our general
partner determines that those amendments:
|
|
|
do not adversely affect in any material respect the limited partners considered as a whole or any particular class of partnership interests as compared to other classes of partnership interests; |
|
|
|
are necessary or appropriate to satisfy any requirements, conditions or guidelines contained in any opinion, directive, order, ruling or regulation of any federal or state agency or judicial authority or contained in
any federal or state statute; |
|
|
|
are necessary or appropriate to facilitate the trading of limited partner interests or to comply with any rule, regulation, guideline or requirement of any securities exchange on which the limited partner interests are
or will be listed or admitted to trading; |
|
|
|
are necessary or appropriate for any action taken by our general partner relating to splits or combinations of units under the provisions of our partnership agreement; or |
|
|
|
are required to effect the intent expressed in this prospectus or the intent of the provisions of our partnership agreement or are otherwise contemplated by our partnership agreement. |
For amendments of the type not requiring unitholder approval, our general partner will not be required to obtain an opinion of counsel to the
effect that an amendment will not affect the limited liability of any limited partner under Delaware law. No other amendments to our partnership agreement will become effective without
12
the approval of holders of at least 90% of the outstanding units, voting together as a single class, unless we first obtain such an opinion of counsel. In addition, any amendment that would have
a material adverse effect on the rights or preferences of any type or class of partnership interests in relation to other classes of partnership interests will require the approval of at least a majority of the type or class of partnership interests
so affected.
Merger, Consolidation, Conversion, Sale or Other Disposition of Assets
A merger, consolidation or conversion of the Partnership requires the prior consent of our general partner. However, our general partner will
have no duty or obligation to consent to any merger, consolidation or conversion and may decline to do so free of any duty or obligation whatsoever to us or the limited partners, including any duty to act in the best interest of us or the limited
partners, other than the implied contractual covenant of good faith and fair dealing.
In addition, our partnership agreement generally
prohibits our general partner, without the prior approval of the holders of a unit majority, from causing us to, among other things, sell, exchange or otherwise dispose of all or substantially all of our assets in a single transaction or a series of
related transactions. Our general partner may, however, mortgage, pledge, hypothecate, or grant a security interest in all or substantially all of our assets without that approval. Our general partner may also sell any or all of our assets under a
foreclosure or other realization upon those encumbrances without that approval. Finally, our general partner may consummate any merger with another limited liability entity without the prior approval of our unitholders if we are the surviving entity
in the transaction, our general partner has received an opinion of counsel regarding limited liability and tax matters, the transaction would not result in an amendment to our partnership agreement requiring unitholder approval, each of our units
will be an identical unit of our partnership following the transaction and the partnership interests to be issued by us in such merger do not exceed 20% of our outstanding partnership interests immediately prior to the transaction.
If the conditions specified in our partnership agreement are satisfied, our general partner may convert us or any of our subsidiaries into a
new limited liability entity or merge us or any of our subsidiaries into, or convey all of our assets to, a newly formed entity if the sole purpose of that conversion, merger or conveyance is to effect a mere change in our legal form into another
limited liability entity, our general partner has received an opinion of counsel regarding limited liability and tax matters, and our general partner determines that the governing instruments of the new entity provide the limited partners and our
general partner with the same rights and obligations as contained in our partnership agreement. The unitholders are not entitled to dissenters rights of appraisal under our partnership agreement or applicable Delaware law in the event of a
conversion, merger or consolidation, a sale of substantially all of our assets or any other similar transaction or event.
Withdrawal
or Removal of Our General Partner
Except as described below, our general partner has agreed not to withdraw voluntarily as our general
partner prior to December 31, 2023, without (1) obtaining the approval of the holders of at least a majority of the outstanding Class A common units and Class B common units, voting together as a single class, excluding Class A
common units and Class B common units held by our general partner and its affiliates, and (2) furnishing an opinion of counsel regarding limited liability and tax matters. On or after December 31, 2023, our general partner may withdraw as
general partner without first obtaining approval of any unitholder by giving 90 days written notice, and that withdrawal will not constitute a violation of our partnership agreement. Notwithstanding the information above, our general partner
may withdraw without unitholder approval upon 90 days written notice to the limited partners if at least 50% of the outstanding units are held or controlled by one person and its affiliates other than our general partner and its affiliates. In
addition, our partnership agreement permits our general partner in some instances to sell or otherwise transfer all of its general partner interest in us without the approval of the unitholders.
Upon voluntary withdrawal of our general partner by giving notice to the other partners, the holders of a unit majority may select a successor
to that withdrawing general partner. If a successor is not elected, or is elected but
13
an opinion of counsel regarding limited liability and tax matters cannot be obtained, we will be dissolved, wound up and liquidated, unless within a specified period after that withdrawal, the
holders of a unit majority agree to continue our business by appointing a successor general partner.
Our general partner may not be
removed unless that removal is approved by the vote of the holders of not less than 66 2/3% of our outstanding units, voting together as a single class, including units held by our general partner and its affiliates, and we receive an opinion of
counsel regarding limited liability and tax matters. Any removal of our general partner is also subject to the approval of a successor general partner by the vote of the holders of a majority of the outstanding Class A common units and Class B
common units, voting together as a single class, and a majority of the outstanding subordinated units, if any, voting as a separate class. The ownership of more than 33 1/3% of the outstanding units by our general partner and its affiliates would
give them the practical ability to prevent our general partners removal.
Our partnership agreement also provides that if our
general partner is removed as our general partner under circumstances where cause does not exist and units held by our general partner and its affiliates are not voted in favor of that removal:
|
|
|
the subordination period will end, and all outstanding subordinated units will immediately and automatically convert into Class B common units on a one-for-one basis; |
|
|
|
any existing arrearages in payment of the minimum quarterly distribution on the Class A common units will be extinguished; and |
|
|
|
our general partner will have the right to convert its general partner interest and its incentive distribution rights into Class B common units or to receive cash in exchange for those interests based on the fair market
value of those interests as of the effective date of its removal. |
In the event of removal of our general partner under
circumstances where cause exists or withdrawal of our general partner where that withdrawal violates our partnership agreement, a successor general partner will have the option to purchase the general partner interest and incentive distribution
rights of the departing general partner for a cash payment equal to the fair market value of those interests. Under all other circumstances where our general partner withdraws or is removed by the limited partners, the departing general partner will
have the option to require the successor general partner to purchase the general partner interest of the departing general partner and its incentive distribution rights for fair market value. In each case, this fair market value will be determined
by agreement between the departing general partner and the successor general partner. If no agreement is reached, an independent investment banking firm or other independent expert selected by the departing general partner and the successor general
partner will determine the fair market value. Or, if the departing general partner and the successor general partner cannot agree upon an expert, then an expert chosen by agreement of the experts selected by each of them will determine the fair
market value.
If the option described above is not exercised by either the departing general partner or the successor general partner,
the departing general partner will become a limited partner and its general partner interest and its incentive distribution rights will automatically convert into Class B common units pursuant to a valuation of those interests as determined by an
investment banking firm or other independent expert selected in the manner described in the preceding paragraph.
In addition, we will be
required to reimburse the departing general partner for all amounts due the departing general partner, including, without limitation, all employee-related liabilities, including severance liabilities, incurred for the termination of any employees
employed by the departing general partner or its affiliates for our benefit.
Transfer of General Partner Interest
Except for transfer by our general partner of all, but not less than all, of its general partner interest to (1) an affiliate of our
general partner (other than an individual), or (2) another entity as part of the merger or
14
consolidation of our general partner with or into such entity or the transfer by our general partner of all or substantially all of its assets to such entity, our general partner may not transfer
all or any part of its general partner interest to another person prior to December 31, 2023, without the approval of the holders of at least a majority of the outstanding Class A common units and Class B common units, voting together as a
single class (excluding Class A common units and Class B common units held by our general partner and its affiliates). As a condition of this transfer, the transferee must assume, among other things, the rights and duties of our general
partner, agree to be bound by the provisions of our partnership agreement, and furnish an opinion of counsel regarding limited liability and tax matters.
Our general partner and its affiliates may at any time transfer units to one or more persons, without unitholder approval, except that they
may not transfer subordinated units to us.
Transfer of Ownership Interests in Our General Partner
At any time, EEP and its affiliates may sell or transfer all or part of their membership interest in our general partner, to an affiliate or
third party without the approval of our unitholders.
Transfer of Incentive Distribution Rights
At any time, our general partner may sell or transfer its incentive distribution rights to an affiliate or third party without the approval of
the unitholders.
Change of Management Provisions
Our partnership agreement contains specific provisions that are intended to discourage a person or group from attempting to remove Midcoast
Holdings, as our general partner or otherwise change our management. If any person or group other than our general partner and its affiliates acquires beneficial ownership of 20% or more of any class of units, that person or group loses voting
rights on all of its units. This loss of voting rights does not apply to any person or group that acquires the units from our general partner or its affiliates and any transferees of that person or group who are notified by our general partner that
they will not lose their voting rights or to any person or group who acquires the units with the prior approval of the board of directors of our general partner.
Limited Call Right
If at any time our general partner and its affiliates own more than 80% of the then-issued and outstanding limited partner interests of any
class, our general partner will have the right, which it may assign in whole or in part to any of its affiliates or to us, to acquire all, but not less than all, of the limited partner interests of such class held by unaffiliated persons as of a
record date to be selected by our general partner, on at least 10, but not more than 60, days written notice.
As a result of our
general partners right to purchase outstanding limited partner interests, a holder of limited partner interests may have the holders limited partner interests purchased at a price that may be lower than market prices at various times
prior to such purchase or lower than a unitholder may anticipate the market price to be in the future. The tax consequences to a unitholder of the exercise of this call right are the same as a sale by that unitholder of the unitholders
Class A common units in the market.
Meetings; Voting
Except as described below regarding a person or group owning 20% or more of any class of units then outstanding, record holders of units on the
record date will be entitled to notice of, and to vote at, meetings of our limited partners and to act upon matters for which approvals may be solicited.
15
Our general partner does not anticipate that any meeting of unitholders will be called in the
foreseeable future. Any action that is required or permitted to be taken by the unitholders may be taken either at a meeting of the unitholders or, if authorized by our general partner, without a meeting if consents in writing describing the action
so taken are signed by holders of the number of units that would be necessary to authorize or take that action at a meeting where all limited partners were present and voted. Meetings of the unitholders may be called by our general partner or by
unitholders owning at least 20% of the outstanding units of the class for which a meeting is proposed. Unitholders may vote either in person or by proxy at meetings. The holders of a majority of the outstanding units of the class or classes for
which a meeting has been called, represented in person or by proxy, will constitute a quorum unless any action by the unitholders requires approval by holders of a greater percentage of the units, in which case the quorum will be the greater
percentage.
Each record holder of a unit has a vote according to its percentage interest in us, although additional limited partner
interests having special voting rights could be issued. However, if at any time any person or group, other than our general partner and its affiliates, a direct transferee of our general partner and its affiliates or a transferee of such direct
transferee who is notified by our general partner that it will not lose its voting rights, acquires, in the aggregate, beneficial ownership of 20% or more of any class of units then outstanding, that person or group will lose voting rights on all of
its units and the units may not be voted on any matter and will not be considered to be outstanding when sending notices of a meeting of unitholders, calculating required votes, determining the presence of a quorum, or for other similar purposes.
Common units held in nominee or street name account will be voted by the broker or other nominee in accordance with the instruction of the beneficial owner unless the arrangement between the beneficial owner and its nominee provides otherwise.
Except as our partnership agreement otherwise provides, subordinated units will vote together with common units as a single class. Any notice, demand, request, report or proxy material required or permitted to be given or made to record holders of
our common units under our partnership agreement will be delivered to the record holder by us or by the transfer agent.
16
CASH DISTRIBUTION POLICY
Distributions of Available Cash
General
Our
partnership agreement requires that, within 45 days after the end of each quarter, beginning with the quarter ending December 31, 2013, we distribute all of our available cash to unitholders of record on the applicable record date.
Definition of available cash
Available cash generally means, for any quarter, all cash and cash equivalents on hand at the end of that quarter:
|
|
|
less, the amount of cash reserves established by our general partner to: |
|
|
|
provide for the proper conduct of our business (including reserves for our future capital expenditures, future acquisitions, anticipated future debt service requirements and refunds of collected rates reasonably likely
to be refunded as a result of a settlement or hearing related to Federal Energy Regulatory Commission and other administrative proceedings under applicable law subsequent to that quarter); |
|
|
|
comply with applicable law, any of our debt instruments or other agreements; or |
|
|
|
provide funds for distributions to our unitholders and to our general partner for any one or more of the next four quarters (provided that our general partner may not establish cash reserves for distributions if the
effect of the establishment of such reserves will prevent us from distributing the minimum quarterly distribution on all Class A common units and Class B common units and any cumulative arrearages on such Class A common units and Class B
common units for the current quarter); |
|
|
|
plus, if our general partner so determines, all or any portion of the cash on hand on the date of determination of available cash for the quarter resulting from working capital borrowings made subsequent to the
end of such quarter. |
The purpose and effect of the last bullet point above is to allow our general partner, if it so
decides, to use cash from working capital borrowings made after the end of the quarter but on or before the date of determination of available cash for that quarter to pay distributions to unitholders. Under our partnership agreement, working
capital borrowings are generally borrowings that are made under a credit facility, commercial paper facility or similar financing arrangement, and in all cases are used solely for working capital purposes or to pay distributions to partners and with
the intent of the borrower to repay such borrowings within twelve months with funds other than from additional working capital borrowings.
Intent to distribute the minimum quarterly distribution
Under our current cash distribution policy, we intend to make a minimum quarterly distribution to the holders of our Class A common units,
Class B common units and subordinated units of $0.3125 per unit, or $1.25 per unit on an annualized basis, to the extent we have sufficient available cash after the establishment of cash reserves and the payment of costs and expenses, including
reimbursements of expenses to our general partner. However, there is no guarantee that we will pay the minimum quarterly distribution on our units in any quarter. The amount of distributions paid under our cash distribution policy and the decision
to make any distribution will be determined by our general partner, taking into consideration the terms of our partnership agreement.
General partner interest and incentive distribution rights
Our general partner is currently entitled to 2% of all quarterly distributions that we make prior to our liquidation. This general partner
interest is represented by 922,859 general partner units. Our general partner has
17
the right, but not the obligation, to contribute a proportionate amount of capital to us to maintain its current general partner interest. The general partners initial 2% interest in these
distributions will be reduced if we issue additional units in the future and our general partner does not contribute a proportionate amount of capital to us to maintain its 2% general partner interest.
Our general partner also currently holds incentive distribution rights that entitle it to receive increasing percentages, up to a maximum of
48%, of the available cash we distribute from operating surplus (as defined below) in excess of $0.359375 per unit per quarter. The maximum distribution of 48% does not include any distributions that our general partner or its affiliates may receive
on common, subordinated or general partner units that they own.
Operating Surplus and Capital Surplus
General
All cash
distributed to unitholders will be characterized as either being paid from operating surplus or capital surplus. We treat distributions of available cash from operating surplus differently than distributions of available cash
from capital surplus.
Operating surplus
We define operating surplus as:
|
|
|
$45.0 million (as described below); plus |
|
|
|
all of our cash receipts, excluding cash from interim capital transactions (as defined below), provided that (1) cash receipts from the termination of a commodity hedge contract or the termination of an interest
rate hedge contract not related to the financing of an expansion capital expenditure, in each case prior to its specified termination date, shall be included in operating surplus in equal quarterly installments over the remaining scheduled life of
such hedge contract, and (2) cash receipts from the termination of an interest rate hedge contract related to the financing of an expansion capital expenditure shall not be included in operating surplus; plus |
|
|
|
working capital borrowings made after the end of a quarter but on or before the date of determination of operating surplus for that quarter; plus |
|
|
|
cash distributions (including incremental distributions on incentive distribution rights) paid in respect of equity issued, other than equity issued in our initial public offering, to finance all or a portion of
expansion capital expenditures in respect of the period from the date that we enter into a binding obligation to commence the construction, development, replacement, improvement or expansion of a capital asset and ending on the earlier to occur of
the date the capital asset commences commercial service and the date that it is abandoned or disposed of; plus |
|
|
|
cash distributions (including incremental distributions on incentive distribution rights) paid in respect of equity issued, other than equity issued in our initial public offering, to pay interest and related fees on
debt incurred, or to pay distributions on equity issued, to finance the expansion capital expenditures referred to in the immediately preceding bullet; less |
|
|
|
all of our operating expenditures (as defined below) after the closing of our initial public offering, which occurred on November 13, 2013; less |
|
|
|
the amount of cash reserves established by our general partner to provide funds for future operating expenditures; less |
|
|
|
all working capital borrowings not repaid within twelve months after having been incurred, or repaid within such 12-month period with the proceeds of additional working capital borrowings. |
18
Capital surplus
Capital surplus is defined in our partnership agreement as any distribution of available cash in excess of our cumulative operating surplus.
Accordingly, except as described above, capital surplus would generally be generated by:
|
|
|
borrowings other than working capital borrowings; |
|
|
|
sales of our equity and debt securities; |
|
|
|
sales or other dispositions of assets, other than inventory, accounts receivable and other assets sold in the ordinary course of business or as part of ordinary course retirement or replacement of assets; and
|
|
|
|
capital contributions received. |
Characterization of cash distributions
Our partnership agreement requires that we treat all cash we distribute as coming from operating surplus until the sum of all cash distributed
since November 13, 2013 equals the operating surplus from November 13, 2013 through the end of the quarter immediately preceding that distribution. Our partnership agreement requires that we treat any amount distributed in excess of
operating surplus, regardless of its source, as a distribution of capital surplus. As described above, operating surplus includes up to $45.0 million, which does not reflect actual cash on hand that is available for distribution to our unitholders.
Rather, it is a provision that will enable us, if we choose, to distribute as operating surplus up to this amount that would otherwise be distributed as capital surplus. We do not anticipate that we will make any distributions from capital surplus.
Subordinated Units and Subordination Period
Subordination period
Except as described below, the subordination period began on November 13, 2013 and will extend until the first business day following the
distribution of available cash in respect of any quarter beginning after December 31, 2016 that each of the following tests are met:
|
|
|
distributions of available cash from operating surplus on each of the outstanding common units, subordinated units and general partner units equaled or exceeded $1.25 (the annualized minimum quarterly distribution), for
each of the three consecutive, non-overlapping four-quarter periods immediately preceding that date; |
|
|
|
the adjusted operating surplus (as defined below) generated during each of the three consecutive, non-overlapping four-quarter periods immediately preceding that date equaled or exceeded the sum of $1.25 (the annualized
minimum quarterly distribution) on all of the outstanding common units, subordinated units and general partner units during those periods on a fully diluted basis; and |
|
|
|
there are no arrearages in payment of the minimum quarterly distribution on the common units. |
Early termination of the subordination period
Notwithstanding the foregoing, the subordination period will automatically terminate on the first business day following the distribution of
available cash in respect of any quarter, beginning with the quarter ending December 31, 2014, that each of the following tests are met:
|
|
|
distributions of available cash from operating surplus on each of the outstanding common units, subordinated units and general partner units equaled or exceeded $1.875 (150% of the annualized minimum quarterly
distribution), plus the related distributions on the incentive distribution rights, for the four-quarter period immediately preceding that date; |
19
|
|
|
the adjusted operating surplus (as defined below) generated during the four-quarter period immediately preceding that date equaled or exceeded the sum of (1) $1.875 (150% of the annualized minimum quarterly
distribution) on all of the outstanding common units, subordinated units and general partner units during that period on a fully diluted basis and (2) the corresponding distributions on the incentive distribution rights; and |
|
|
|
there are no arrearages in payment of the minimum quarterly distributions on the common units. |
Expiration upon removal of the general partner
In addition, if the unitholders remove our general partner other than for cause during the subordination period:
|
|
|
the subordinated units held by any person will immediately and automatically convert into Class B common units on a one-for-one basis, provided that neither such person nor any of its affiliates voted any of its units
in favor of the removal; |
|
|
|
if all of the subordinated units convert into Class B common units pursuant to the foregoing, all cumulative common unit arrearages on the Class A common units will be extinguished and the subordination period will
end; and |
|
|
|
our general partner will have the right to convert its general partner interest and its incentive distribution rights into Class B common units or to receive cash in exchange for those interests. |
Adjusted operating surplus
Adjusted operating surplus is intended to reflect the cash generated from operations during a particular period and therefore excludes net
increases in working capital borrowings and net drawdowns of reserves of cash established in prior periods. Adjusted operating surplus for a period consists of:
|
|
|
operating surplus generated with respect to that period; less |
|
|
|
any net increase in working capital borrowings with respect to that period; less |
|
|
|
any net decrease in cash reserves for operating expenditures with respect to that period not relating to an operating expenditure made with respect to that period; plus |
|
|
|
any net decrease in working capital borrowings with respect to that period; plus |
|
|
|
any net decrease made in subsequent periods to cash reserves for operating expenditures initially established with respect to that period to the extent such decrease results in a reduction in adjusted operating surplus
in subsequent periods; plus |
|
|
|
any net increase in cash reserves for operating expenditures with respect to that period required by any debt instrument for the repayment of principal, interest or premium. |
Distributions of Available Cash From Operating Surplus During the Subordination Period
We will make distributions of available cash from operating surplus for any quarter during the subordination period in the following manner:
|
|
|
first, 98% to the common unitholders, pro rata, and 2% to our general partner, until we distribute for each outstanding common unit an amount equal to the minimum quarterly distribution for that quarter;
|
|
|
|
second, 98% to the common unitholders, pro rata, and 2% to our general partner, until we distribute for each outstanding common unit an amount equal to any arrearages in payment of the minimum quarterly
distribution on the common units for any prior quarters during the subordination period; |
20
|
|
|
third, 98% to the subordinated unitholders, pro rata, and 2% to our general partner, until we distribute for each outstanding subordinated unit an amount equal to the minimum quarterly distribution for that
quarter; and |
|
|
|
thereafter, in the manner described in General Partner Interest and Incentive Distribution Rights below. |
The preceding discussion is based on the assumptions that our general partner maintains its 2% general partner interest and that we do not
issue additional classes of equity securities.
Distributions of Available Cash From Operating Surplus After the Subordination Period
We will make distributions of available cash from operating surplus for any quarter after the subordination period in the following manner:
|
|
|
first, 98% to all unitholders, pro rata, and 2% to our general partner, until we distribute for each outstanding unit an amount equal to the minimum quarterly distribution for that quarter; and |
|
|
|
thereafter, in the manner described in General Partner Interest and Incentive Distribution Rights below. |
The preceding discussion is based on the assumptions that our general partner maintains its 2% general partner interest and that we do not
issue additional classes of equity securities.
General Partner Interest and Incentive Distribution Rights
Our partnership agreement provides that our general partner initially will be entitled to 2% of all distributions that we make prior to our
liquidation. Our general partner has the right, but not the obligation, to contribute a proportionate amount of capital to us in order to maintain its 2% general partner interest if we issue additional units.
The following discussion assumes that our general partner maintains its 2% general partner interest, and that our general partner continues to
own the incentive distribution rights.
If for any quarter:
|
|
|
we have distributed available cash from operating surplus to the holders of Class A common units, Class B common units and subordinated units in an amount equal to the minimum quarterly distribution; and
|
|
|
|
we have distributed available cash from operating surplus on outstanding Class A common units in an amount necessary to eliminate any cumulative arrearages in payment of the minimum quarterly distribution;
|
then, we will distribute any additional available cash from operating surplus for that quarter among the unitholders and our general partner
in the following manner:
|
|
|
first, 98% to all unitholders, pro rata, and 2% to our general partner, until each unitholder receives a total of $0.359375 per unit for that quarter, or the first target distribution; |
|
|
|
second, 85% to all unitholders, pro rata, and 15% to our general partner, until each unitholder receives a total of $0.390625 per unit for that quarter, or the second target distribution; |
|
|
|
third, 75% to all unitholders, pro rata, and 25% to our general partner, until each unitholder receives a total of $0.468750 per unit for that quarter, or the third target distribution; and |
|
|
|
thereafter, 50% to all unitholders, pro rata, and 50% to our general partner. |
21
General Partners Right to Reset Incentive Distribution Levels
Our general partner, as the initial holder of our incentive distribution rights, has the right under our partnership agreement, subject to
certain conditions, to elect to relinquish the right to receive incentive distribution payments based on the initial target distribution levels and to reset, at higher levels, the minimum quarterly distribution amount and target distribution levels
upon which the incentive distribution payments to our general partner would be set. If our general partner transfers all or a portion of the incentive distribution rights in the future, then the holder or holders of a majority of our incentive
distribution rights will be entitled to exercise this right. The following discussion assumes that our general partner holds all of the incentive distribution rights at the time that a reset election is made. Our general partners right to
reset the minimum quarterly distribution amount and the target distribution levels upon which the incentive distributions payable to our general partner are based may be exercised, without approval of our unitholders or the conflicts committee, at
any time when there are no subordinated units outstanding, we have made cash distributions to the holders of the incentive distribution rights at the highest level of incentive distributions for each of the four consecutive fiscal quarters
immediately preceding such time and the amount of each such distribution did not exceed adjusted operating surplus for such quarter. If our general partner and its affiliates are not the holders of a majority of the incentive distribution rights at
the time an election is made to reset the minimum quarterly distribution amount and the target distribution levels, then the proposed reset will be subject to the prior written concurrence of the general partner that the conditions described above
have been satisfied. The reset minimum quarterly distribution amount and target distribution levels will be higher than the minimum quarterly distribution amount and the target distribution levels prior to the reset such that the holder of the
incentive distribution rights will not receive any incentive distributions under the reset target distribution levels until cash distributions per unit following this event increase as described below. We anticipate that our general partner would
exercise this reset right in order to facilitate acquisitions or internal growth projects that would otherwise not be sufficiently accretive to cash distributions per common unit, taking into account the existing levels of incentive distribution
payments being made to our general partner.
In connection with the resetting of the minimum quarterly distribution amount and the target
distribution levels and the corresponding relinquishment by our general partner of incentive distribution payments based on the target distributions prior to the reset, our general partner will be entitled to receive a number of newly issued Class B
common units based on a predetermined formula described below that takes into account the cash parity value of the average cash distributions related to the incentive distribution rights received by our general partner for the two
quarters immediately preceding the reset event as compared to the average cash distributions per Class A common unit during that two-quarter period. In addition, our general partner will be issued the number of general partner units necessary
to maintain our general partners interest in us immediately prior to the reset election.
The number of Class B common units that
our general partner (or the then-holder of the incentive distribution rights, if other than our general partner) would be entitled to receive from us in connection with a resetting of the minimum quarterly distribution amount and the target
distribution levels then in effect would be equal to the quotient determined by dividing (x) the average aggregate amount of cash distributions received by our general partner in respect of its incentive distribution rights during the two
consecutive fiscal quarters ended immediately prior to the date of such reset election by (y) the average of the aggregate amount of cash distributed per Class A common unit during each of these two quarters.
Following a reset election, the minimum quarterly distribution amount will be reset to an amount equal to the average cash distribution amount
per Class A common unit for the two fiscal quarters immediately preceding the reset election (which amount we refer to as the reset minimum quarterly distribution) and the target distribution levels will be reset to be
correspondingly higher such that we would distribute all of our available cash from operating surplus for each quarter thereafter as follows:
|
|
|
first, 98% to all unitholders, pro rata, and 2% to our general partner, until each unitholder receives an amount equal to 115% of the reset minimum quarterly distribution for the quarter; |
22
|
|
|
second, 85% to all unitholders, pro rata, and 15% to our general partner, until each unitholder receives an amount per unit equal to 125% of the reset minimum quarterly distribution for the quarter;
|
|
|
|
third, 75% to all unitholders, pro rata, and 25% to our general partner, until each unitholder receives an amount per unit equal to 150% of the reset minimum quarterly distribution for the quarter; and
|
|
|
|
thereafter, 50% to all unitholders, pro rata, and 50% to our general partner. |
Our
general partner will be entitled to cause the minimum quarterly distribution amount and the target distribution levels to be reset on more than one occasion, provided that it may not make a reset election except at a time when it has received
incentive distributions for the immediately preceding four consecutive fiscal quarters based on the highest level of incentive distributions that it is entitled to receive under our partnership agreement.
Distributions from Capital Surplus
How distributions from capital surplus will be made
We will make distributions of available cash from capital surplus, if any, in the following manner:
|
|
|
first, 98% to all unitholders, pro rata, and 2% to our general partner, until we distribute for each common unit that was issued our initial public offering an amount of available cash from capital surplus equal
to the initial public offering price in our initial public offering; |
|
|
|
second, 98% to all unitholders, pro rata, and 2% to our general partner, until we distribute for each Class A common unit an amount of available cash from capital surplus equal to any unpaid arrearages in
payment of the minimum quarterly distribution on the outstanding Class A common units; and |
|
|
|
thereafter, as if they were from operating surplus. |
The preceding discussion is based
on the assumptions that our general partner maintains its 2% general partner interest and that we do not issue additional classes of equity securities.
Adjustment to the Minimum Quarterly Distribution and Target Distribution Levels
In addition to adjusting the minimum quarterly distribution and target distribution levels to reflect a distribution of capital surplus, if we
combine our units into fewer units or subdivide our units into a greater number of units, we will proportionately adjust:
|
|
|
the minimum quarterly distribution; |
|
|
|
the target distribution levels; |
|
|
|
the unrecovered initial unit price; |
|
|
|
the number of general partner units comprising the general partner interest; and |
|
|
|
the arrearages per Class A common unit in payment of the minimum quarterly distribution on the Class A common units. |
In addition, if legislation is enacted or if the official interpretation of existing law is modified by a governmental authority, so that we
become taxable as a corporation or otherwise subject to taxation as an entity for federal, state or local income tax purposes, our partnership agreement specifies that the minimum quarterly distribution and the target distribution levels for each
quarter may be reduced by multiplying each distribution level by a fraction, the numerator of which is available cash for that quarter (reduced by the amount of the estimated tax liability for such quarter payable by reason of such legislation or
interpretation) and the denominator of which is the sum of available cash for that quarter (reduced by the amount of the estimated tax liability for such quarter payable by reason of such legislation or interpretation) plus our general
partners estimate of our aggregate liability for the quarter for such income taxes payable by reason of such legislation or interpretation. To the extent that the actual tax liability differs from the estimated tax liability for any quarter,
the difference may be accounted for in subsequent quarters.
23
Distributions of Cash Upon Liquidation
General
If we
dissolve in accordance with our partnership agreement, we will sell or otherwise dispose of our assets in a process called liquidation. We will first apply the proceeds of liquidation to the payment of our creditors. We will distribute any remaining
proceeds to the unitholders and our general partner in accordance with their capital account balances as adjusted to reflect any gain or loss upon the sale or other disposition of our assets in liquidation.
The allocations of gain and loss upon liquidation are intended, to the extent possible, to entitle the holders of outstanding common units to
a preference over the holders of outstanding subordinated units upon our liquidation, to the extent required to permit common unitholders to receive their unrecovered initial unit price plus the minimum quarterly distribution for the quarter during
which liquidation occurs plus any unpaid arrearages in payment of the minimum quarterly distribution on the common units. However, there may not be sufficient gain upon our liquidation to enable the holders of our common units to fully recover all
of these amounts, even though there may be cash available for distribution to the holders of our subordinated units. Any further net gain recognized upon liquidation will be allocated in a manner that takes into account the incentive distribution
rights of our general partner.
Manner of adjustments for gain
The manner of the adjustment for gain is set forth in our partnership agreement. If our liquidation occurs before the end of the subordination
period, we will allocate any gain to our partners in the following manner:
|
|
|
first, to our general partner to the extent of any negative balance in its capital account; |
|
|
|
second, 98% to the common unitholders, pro rata, and 2% to our general partner, until the capital account for each common unit is equal to the sum of: |
(1) the unrecovered initial unit price;
(2) the amount of the minimum quarterly distribution for the quarter during which our liquidation occurs; and
(3) any unpaid arrearages in payment of the minimum quarterly distribution;
|
|
|
third, 98% to the subordinated unitholders, pro rata, and 2% to our general partner, until the capital account for each subordinated unit is equal to the sum of: |
(1) the unrecovered initial unit price; and
(2) the amount of the minimum quarterly distribution for the quarter during which our liquidation occurs;
|
|
|
fourth, 98% to all unitholders, pro rata, and 2% to our general partner, until we allocate under this paragraph an amount per unit equal to: |
(1) the sum of the excess of the first target distribution per unit over the minimum quarterly distribution per unit for each quarter of our
existence; less
(2) the cumulative amount per unit of any distributions of available cash from operating surplus in excess of the
minimum quarterly distribution per unit that we distributed 98% to the unitholders, pro rata, and 2% to our general partner, for each quarter of our existence;
|
|
|
fifth, 85% to all unitholders, pro rata, and 15% to our general partner, until we allocate under this paragraph an amount per unit equal to: |
(1) the sum of the excess of the second target distribution per unit over the first target distribution per unit for each quarter of our
existence; less
24
(2) the cumulative amount per unit of any distributions of available cash from operating surplus
in excess of the first target distribution per unit that we distributed 85% to the unitholders, pro rata, and 15% to our general partner for each quarter of our existence;
|
|
|
sixth, 75% to all unitholders, pro rata, and 25% to our general partner, until we allocate under this paragraph an amount per unit equal to: |
(1) the sum of the excess of the third target distribution per unit over the second target distribution per unit for each quarter of our
existence; less
(2) the cumulative amount per unit of any distributions of available cash from operating surplus in excess of the
second target distribution per unit that we distributed 75% to the unitholders, pro rata, and 25% to our general partner for each quarter of our existence; and
|
|
|
thereafter, 50% to all unitholders, pro rata, and 50% to our general partner. |
The
percentages set forth above are based on the assumption that our general partner maintains its 2% general partner interest and has not transferred its incentive distribution rights and that we do not issue additional classes of equity securities.
If the liquidation occurs after the end of the subordination period, the subordinated units will convert into Class B common units, which
are treated the same as Class A common units for purposes of the above allocations, and the distinction between common units and subordinated units will disappear, so that clause (3) of the second bullet point above and all of the third
bullet point above will no longer be applicable.
Manner of adjustments for losses
If our liquidation occurs before the end of the subordination period, after making allocations of loss to the general partner and the
unitholders in a manner intended to offset in reverse order the allocations of gains that have previously been allocated, we will generally allocate any loss to our general partner and unitholders in the following manner:
|
|
|
first, 98% to the holders of our subordinated units in proportion to the positive balances in their capital accounts and 2% to our general partner, until the capital accounts of the subordinated unitholders have
been reduced to zero; |
|
|
|
second, 98% to the holders of our common units in proportion to the positive balances in their capital accounts and 2% to our general partner, until the capital accounts of the common unitholders have been
reduced to zero; and |
|
|
|
thereafter, 100% to our general partner. |
The percentages set forth above are based on
the assumption that our general partner maintains its 2% general partner interest and has not transferred its incentive distribution rights and that we do not issue additional classes of equity securities.
If the liquidation occurs after the end of the subordination period, the subordinated units will convert into Class B common units, which are
treated the same as Class A common units for purposes of the above allocations, and the distinction between common units and subordinated units will disappear, so that all of the first bullet point above will no longer be applicable.
Adjustments to capital accounts
Our partnership agreement requires that we make adjustments to capital accounts upon the issuance of additional units. In this regard, our
partnership agreement specifies that we allocate any unrealized and, for tax purposes, unrecognized gain resulting from the adjustments to the unitholders and the general partner in the same manner as we allocate gain upon liquidation. In the event
that we make positive adjustments to the capital accounts upon the issuance of additional units, our partnership agreement requires that we generally
25
allocate any later negative adjustments to the capital accounts resulting from the issuance of additional units or upon our liquidation in a manner that results, to the extent possible, in the
partners capital account balances equaling the amount that they would have been if no earlier positive adjustments to the capital accounts had been made. In contrast to the allocations of gain, and except as provided above, we generally will
allocate any unrealized and unrecognized loss resulting from the adjustments to capital accounts upon the issuance of additional units to the unitholders and our general partner based on their respective percentage ownership of us. In this manner,
prior to the end of the subordination period, we generally will allocate any such loss equally with respect to our common units and subordinated units. If we make negative adjustments to the capital accounts as a result of such loss, future positive
adjustments resulting from the issuance of additional units will be allocated in a manner designed to reverse the prior negative adjustments, and special allocations will be made upon liquidation in a manner that results, to the extent possible, in
our unitholders capital account balances equaling the amounts they would have been if no earlier adjustments for loss had been made.
26
DESCRIPTION OF OUR DEBT SECURITIES AND GUARANTEES OF DEBT SECURITIES
The following description sets forth certain general terms and provisions of the debt securities to which any prospectus supplement
may relate. Other terms, and the particular terms of a specific series of debt securities (which differ from the terms described below), will be described in the prospectus supplement relating to that series. The debt securities will be senior debt
securities or subordinated debt securities. The senior debt securities will be issued under an indenture , or the Senior Indenture, to be entered into between us and U.S. Bank National Association, as trustee, or the Senior Trustee, and the
subordinated debt securities will be issued under a separate indenture, or the Subordinated Indenture, to be entered into between us and U.S. Bank National Association, as trustee, or the Subordinated Trustee. The term Trustee used in
this prospectus shall refer to the Senior Trustee or the Subordinated Trustee, as appropriate. The Senior Indenture and the Subordinated Indenture are sometimes collectively referred to herein as the Indentures and individually as
Indenture. The Indentures are subject to and governed by the Trust Indenture Act of 1939, as amended, or the TIA, and may be supplemented from time to time following execution.
The terms of the debt securities include those stated in the applicable Indenture and those made part of the Indenture by reference to the
TIA. The debt securities are subject to all of those terms, and holders of debt securities are referred to the applicable Indenture and the TIA for a statement of those terms.
The statements set forth below in this section are brief summaries of certain provisions contained in the Indentures, do not purport to be
complete, and are subject to, and are qualified in their entirety by reference to, the Indentures, including the definitions of certain terms therein, and the TIA. Capitalized terms used in this section and not otherwise defined in this section will
have the respective meanings assigned to them in the Indentures.
When used in this section Description of Our Debt Securities and
Guarantees of Debt Securities, the terms, we, us, our, the Partnership and Midcoast Partners means strictly Midcoast Energy Partners, L.P. and not its subsidiaries.
General
The debt securities will be our
direct obligations. The indebtedness represented by the senior debt securities will rank equally in right of payment with all of our other unsecured and unsubordinated indebtedness. The indebtedness represented by the subordinated debt securities
will be subordinated in right of payment to the prior payment in full of all of our senior debt as described below under Subordination.
A prospectus supplement, the applicable Indenture and the supplemental indenture or authorizing resolution (including any related
officers certificate or partnership order), if any, relating to any series of debt securities being offered will include specific terms relating to the offering. These terms will include some or all of the following:
|
|
|
the form and title of the debt securities and whether the debt securities are senior debt securities or subordinated debt securities; |
|
|
|
the aggregate principal amount of the debt securities and any limit on the aggregate principal amount; |
|
|
|
the date or dates on which the principal of the debt securities shall be payable; |
|
|
|
the rate or rates (fixed or variable) at which the debt securities shall bear interest, if any, and the date or dates from which the interest shall accrue; |
|
|
|
the dates on which interest, if any, shall be payable and the record dates for the interest payment dates; |
|
|
|
the place or places where the principal of and interest, if any, on the debt securities of the series will be payable; |
27
|
|
|
any optional or mandatory redemption or any sinking fund or analogous provisions; |
|
|
|
any special tax implications of the debt securities, including provisions for original issue discount securities, if offered; |
|
|
|
any provisions granting special rights to holders when a specified event occurs; |
|
|
|
the percentage of the principal amount at which the debt securities will be issued and any payments due if the maturity of the debt securities is accelerated; |
|
|
|
any Events of Default or covenants with respect to the debt securities that differ from, or are in addition to, those set forth in the applicable Indenture; |
|
|
|
any provisions granting liens when a specified event occurs; |
|
|
|
whether the debt security will be guaranteed by any guarantors and, if so, the identity of the guarantors and, to the extent the terms thereof differ from those described in this prospectus, a description of the terms
of the guarantees; |
|
|
|
whether the right of payment of the debt security will be subordinated to our Senior Indebtedness; |
|
|
|
provisions regarding the convertibility or exchangeability of the debt securities; |
|
|
|
provisions pertaining to the issuance of debt securities in the form of global debt securities, as described below; |
|
|
|
provisions relating to the modification of the terms of the debt securities or the rights of securityholders; |
|
|
|
the form of and conditions to issuance of debt securities issuable in definitive form, other than as described below; |
|
|
|
the identity of the trustee, the registrar for the debt securities and any paying agent; and |
|
|
|
any other terms not prohibited by the provisions of the applicable Indenture. |
The debt
securities of a series may be issued in registered, coupon or global form and will be denominated in an amount equal to all or a portion of the aggregate principal amount of those debt securities. See Global Debt Securities.
Unless otherwise set forth in a prospectus supplement related to the series of debt securities offered thereby, the debt securities will not
contain any provisions that protect the holders of the debt securities in the event of a change of control of us or in the event of a highly leveraged transaction, whether or not such transaction results in a change of control of us.
Neither Indenture will limit the amount of debt securities that we may issue, unless we indicate otherwise in a prospectus supplement. Each
Indenture will allow us to issue debt securities of any series up to the aggregate principal amount that we authorize.
Denominations
Unless otherwise indicated in any applicable prospectus supplement, the debt securities of any series shall be issuable in a minimum
denomination equal to $100,000 or an integral multiple of $1,000 in excess thereof.
Global Debt Securities
Certain series of the debt securities may be issued as permanent global debt securities to be deposited with a depositary, or a custodian for
the depositary, with respect to that series. Unless otherwise indicated in the applicable prospectus supplement, the following is a summary of the depository arrangements applicable to debt securities issued in permanent global form and for which
The Depository Trust Company, or DTC, acts as depositary.
28
Each global debt security will be deposited with, or on behalf of, DTC, as depositary, or its
nominee and registered in the name of a nominee of DTC. Except under the limited circumstances described below, global debt securities are not exchangeable for definitive certificated debt securities.
Ownership of beneficial interests in a global debt security is limited to institutions that have accounts with DTC or its nominee
(participants) or persons that may hold interests through participants. In addition, ownership of beneficial interests by participants in a global debt security will be evidenced only by, and the transfer of that ownership interest will
be effected only through, records maintained by DTC or its nominee for a global debt security. Ownership of beneficial interests in a global debt security by persons that hold through participants will be evidenced only by, and the transfer of that
ownership interest within that participant will be effected only through, records maintained by that participant. DTC has no knowledge of the actual beneficial owners of the debt securities. Beneficial owners will not receive written confirmation
from DTC of their purchase, but beneficial owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the participants through which the beneficial owners entered
the transaction. The laws of some jurisdictions require that certain purchasers of securities take physical delivery of such securities in definitive form. Such laws may impair the ability to transfer beneficial interests in a global debt security.
Payments on debt securities represented by a global debt security registered in the name of or held by DTC or its nominee will be made to
DTC or its nominee, as the case may be, as the registered owner and holder of the global debt security representing the debt securities. We expect that upon receipt of any payments with respect to a global debt security, DTC will immediately credit
accounts of participants on its book-entry registration and transfer system with payments in amounts proportionate to their respective beneficial interests in the principal amount of that global debt security as shown in the records of DTC. Payments
by participants to owners of beneficial interests in a global debt security held through those participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers in
bearer form or registered in street name, and will be the sole responsibility of those participants, subject to any statutory or regulatory requirements that may be in effect from time to time.
Neither we, any Trustee nor any of our respective agents will be responsible for any aspect of the records of DTC, any nominee or any
participant relating to, or payments made on account of, beneficial interests in a permanent global debt security or for maintaining, supervising or reviewing any of the records of DTC, any nominee or any participant relating to such beneficial
interests.
A global debt security is exchangeable for definitive debt securities registered in the name of, and a transfer of a global
debt security may be registered to, any person other than DTC or its nominee, only if:
|
|
|
DTC notifies us that it is unwilling or unable to continue as depositary for that global debt security or at any time DTC ceases to be registered under the Securities Exchange Act of 1934, as amended, and a successor
depositary is not appointed by us within 90 days after our receipt of such notice; |
|
|
|
we determine in our discretion that the global debt security shall be exchangeable for definitive debt securities in registered form; |
|
|
|
there shall have occurred and be continuing an event of default or an event which, with notice or the lapse of time or both, would constitute an event of default under the debt securities; or |
|
|
|
as may be provided in any applicable prospectus supplement. |
Any global debt security that is
exchangeable pursuant to the preceding sentence will be exchangeable in whole for definitive debt securities in registered form, of like tenor and of an equal aggregate principal amount as the global debt security, in a minimum denomination equal to
$100,000 or an integral multiple of $1,000 in excess thereof. The definitive debt securities will be registered by the registrar in the name or names instructed by DTC. We expect that these instructions may be based upon directions received by DTC
from its participants with respect to ownership of beneficial interests in the global debt security.
29
Except as provided above, owners of the beneficial interests in a global debt security will not
be entitled to receive physical delivery of debt securities in definitive form and will not be considered the holders of debt securities for any purpose under the Indentures. No global debt security shall be exchangeable except for another global
debt security of like denomination and tenor to be registered in the name of DTC or its nominee. Accordingly, each person owning a beneficial interest in a global debt security must rely on the procedures of DTC and, if that person is not a
participant, on the procedures of the participant through which that person owns its interest, to exercise any rights of a holder under the global debt security or the Indentures.
We understand that, under existing industry practices, in the event that we request any action of holders, or an owner of a beneficial
interest in a global debt security desires to give or take any action that a holder is entitled to give or take under the debt securities or the Indentures, DTC would authorize the participants holding the relevant beneficial interest to give or
take that action, and those participants would authorize beneficial owners owning through those participants to give or take that action or would otherwise act upon the instructions of beneficial owners owning through them.
DTC is a limited purpose trust company organized under the laws of the State of New York, a banking organization within the
meaning of the New York Banking Law, a member of the Federal Reserve System, a clearing corporation within the meaning of the New York Uniform Commercial Code and a clearing agency pursuant to the provisions of
Section 17A of the Securities Exchange Act of 1934, as amended. DTC was created to hold securities of its participants and to facilitate the clearance and settlement of securities transactions among its participants in those securities through
electronic book-entry changes in accounts of the participants, thereby eliminating the need for physical movement of securities certificates. DTCs participants include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation, or DTCC. DTCC is the holding company for DTC, National Securities Clearance Corporation and Fixed Income Clearing
Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to DTCs book-entry system is also available to others, such as banks, brokers, dealers, trust companies and clearing
corporations that clear through or maintain a custodial relationship with a participant, either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
Covenants
Under the Indentures, we have
agreed to:
|
|
|
pay the principal of, and interest and any premium on, the debt securities when due; |
|
|
|
maintain a place of payment; |
|
|
|
deliver an officers certificate to the applicable Trustee within 150 days after the end of each fiscal year regarding our review of compliance with our obligations under the Indentures; |
|
|
|
maintain our corporate existence; and |
|
|
|
deposit sufficient funds with any paying agent on or before the due date for any payment of principal, interest or premium. |
Consolidation, Merger or Asset Sale
Both
Indentures generally allow us to consolidate or merge with or into another person, association or entity. They also allow us to sell, lease or transfer our property and assets substantially as an entirety to another person, association or entity.
Unless otherwise indicated in the applicable prospectus supplement, however, the Indentures will impose certain requirements with respect
to any consolidation or merger with or into another person, association or
30
person, or any sale, lease or transfer our assets substantially as an entirety to another person, association or person, including the following:
|
|
|
the remaining or acquiring person, association or entity expressly assumes all of our responsibilities and liabilities under the Indentures, including the punctual payment of all amounts due on the debt securities and
performance of the covenants in the Indentures; |
|
|
|
immediately after giving effect to the transaction, no event which is, or after notice or lapse of time or both would become, an Event of Default, as defined below, exists; and |
|
|
|
delivery to the trustee an officers certificate and an opinion of counsel stating that all related conditions have been satisfied. |
The remaining or acquiring person, association or entity will be substituted for us in the Indentures with the same effect as if it had been
an original party to the Indentures. Thereafter, the successor may exercise our rights and powers under the Indentures, in our name or in its own name. If we sell or transfer our assets substantially as an entirety and the above requirements are
satisfied, we will be released from all our liabilities and obligations under the Indentures and the debt securities. If we lease our assets substantially as an entirety, we will not be released from our obligations under the Indentures and the debt
securities.
Events of Default
Unless otherwise specified in the applicable prospectus supplement, each of the following events will be an Event of Default under an Indenture
with respect to any series of debt securities issued under that Indenture:
|
|
|
failure to pay any interest on any debt security of that series when due, continued for 60 days; |
|
|
|
failure to pay principal of (or premium, if any, on) any debt security of that series when due; |
|
|
|
failure to deposit a sinking fund or any other such analogous required payment, if any, when due by the terms of a debt security of that series; |
|
|
|
failure to perform or comply with any covenant in the applicable Indenture or related supplemental indenture or authorizing resolution (including any related officers certificate or partnership order), continued
for 90 days after written notice to us as provided in that Indenture; |
|
|
|
if the debt securities of that series are guaranteed debt securities, the guarantee of the debt securities of that series by any guarantor shall for any reason cease to be, or shall for any reason be asserted in writing
by such guarantor or the Partnership, not to be, in full force and effect and enforceable in accordance with its terms, except to the extent contemplated or permitted by the applicable Indenture or the debt securities of that series;
|
|
|
|
certain events in bankruptcy, insolvency or reorganization affecting us or, if that series of debt securities is guaranteed by a guarantor, of such guarantor; and |
|
|
|
any other Event of Default provided under the terms of the debt securities of that series. |
An
Event of Default for a particular series of debt securities will not necessarily constitute an Event of Default for any other series of debt securities outstanding under an Indenture. The applicable Trustee may withhold notice to the holders of a
series of debt securities of any default, except payment defaults of principal of, or on interest or any premium on, those debt securities, if it considers such withholding to be in the interest of the holders.
If an Event of Default occurs and is continuing, other than an Event of Default described in the sixth bullet point above with respect to us,
then the applicable Trustee or the holders of a specified percentage in aggregate principal amount of the outstanding debt securities of that series may declare the entire principal amount of, premium, if any, and accrued and unpaid interest, if
any, on the outstanding debt securities of that series to be due and payable immediately; provided, however, that the holders of a majority of the aggregate principal
31
amount of the debt securities of that series may, under certain circumstances, rescind and annul the declaration. If an Event of Default described in the sixth bullet point above occurs and is
continuing with respect to us, then the principal amount of, premium, if any, and accrued and unpaid interest, if any, on, all series will become immediately due and payable without declaration of acceleration or other act on the part of any Trustee
or any holders.
Subject to provisions in each Indenture relating to its duties in case an Event of Default shall have occurred and be
continuing, no Trustee will be under an obligation to exercise any of its rights or powers under that Indenture at the request, order or direction of any holders of debt securities then outstanding under that Indenture, unless the holders shall have
offered to the applicable Trustee reasonable indemnity or security against any costs, liability or expense that may be incurred in exercising such rights or powers. If such reasonable indemnity or security is provided, the holders of a majority in
aggregate principal amount of the outstanding debt securities of any series will have the right, subject to certain restrictions, to direct the time, method and place of conducting any proceeding for any remedy available to the applicable Trustee or
exercising any power conferred on the Trustee, for any series of debt securities.
Defeasance
Debt securities of a series may be defeased at any time in accordance with their terms and as set forth in the applicable Indenture and
described briefly below, unless the supplemental indenture or authorizing resolution (including any related officers certificate or partnership order) establishing the terms of the series provides otherwise. Any defeasance may terminate all of
our obligations (with limited exceptions) and all obligations of any guarantors of such debt securities with respect to a series of debt securities and the applicable Indenture (legal defeasance), or it may terminate only our obligations
and the obligations of any guarantors of such debt securities or the operation of certain covenants and provisions (including certain Events of Default) which may be applicable to a particular series (covenant defeasance).
We may exercise our legal defeasance option even though we have also exercised our covenant defeasance option. If we exercise the legal
defeasance option with respect to a series of debt securities, that series may not be accelerated because of an Event of Default. If we exercise the covenant defeasance option, that series of debt securities may not be accelerated by reference to
any affected covenants or provisions which may be applicable to that particular series. Upon the effectiveness of defeasance with respect to any series of guaranteed debt securities, each guarantor of the debt securities of such series shall be
automatically and unconditionally released and discharged from all of its obligations under its guarantee of the debt securities of such series and all of its other obligations under the applicable indenture in respect of the debt securities of that
series, without any action by us, any guarantor or the applicable Trustee and without the consent of the holders of any debt securities.
To exercise either defeasance option as to a series of debt securities, we must:
|
|
|
irrevocably deposit in trust with the applicable Trustee or another trustee money or U.S. government obligations in an amount to pay and discharge the principal of and any premium and interest on the debt securities on
the stated maturities or redemption dates therefor and any mandatory sinking fund payments; |
|
|
|
deliver a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due on the deposited U.S. government obligations, without
reinvestment, plus any deposited money without investment, will provide cash at the times and in the amounts necessary to pay the principal of and premium and interest when due on all debt securities of the series to maturity or redemption, as the
case may be, and any mandatory sinking fund payments; and |
|
|
|
comply with certain other conditions, including obtaining an opinion of tax counsel that the defeasance will not result in recognition of any income,
gain or loss to holders for federal income tax purposes and |
32
|
will be subject to federal income tax on the same amounts and in the same manner and at the same time as would have been the case if such deposit and defeasance had not occurred.
|
Discharge
We may
discharge all our obligations under an Indenture with respect to the debt securities of any series, other than our obligation to register the transfer of and to exchange notes of that series, when either:
|
|
|
all outstanding debt securities of that series, except lost, stolen or destroyed debt securities that have been replaced or paid and debt securities for whose payment money has been deposited in trust and thereafter
repaid to us, have been delivered to the applicable Trustee for cancellation; or |
|
|
|
all such debt securities not so delivered for cancellation have either become due and payable or will become due and payable at their stated maturity within one year or are to be called for redemption within one year,
and we have deposited with the applicable Trustee in trust an amount of cash sufficient to pay the entire indebtedness of such debt securities, including interest and premium, if any, to the stated maturity or applicable redemption date;
|
and we have paid all other sums due under that Indenture and delivered an officers certificate and opinion of counsel to the
applicable Trustee stating that all related conditions have been satisfied.
Modification of Indentures
Under each Indenture, generally we and the applicable Trustee may modify our rights and obligations and the rights of the holders with the
consent of the holders of a majority in aggregate principal amount of the outstanding debt securities of each series affected by the modification.
No modification of the principal or interest payment terms, no modification reducing the percentage required for any waiver or modifications
and no modification impairing the right to institute suit for the payment on debt securities of any series when due, is effective against any holder without its consent.
In addition, we and the applicable Trustee may amend or supplement the Indentures without the consent of any holder of the debt securities in
certain circumstances, including making certain technical changes, such as:
|
|
|
curing ambiguities or correcting defects or inconsistencies or otherwise adding or changing provisions with respect to matters or questions arising under the Indenture relating to a particular series of debt securities
that does not adversely affect the rights of any holder in any material respect; |
|
|
|
evidencing the succession of another person to us, and the assumption by that successor of our obligations under the applicable Indenture and the debt securities of any series; |
|
|
|
providing for the acceptance of appointment by a successor trustee; |
|
|
|
qualifying the Indentures under the TIA; |
|
|
|
complying with the rules and regulations of any securities exchange or automated quotation system on which debt securities of any series may be listed or traded; or |
|
|
|
adding, changing or eliminating provisions relating to a particular series of debt securities to be issued. |
Guarantees
The debt securities of any
series may be guaranteed by one or more of our existing and future subsidiaries. However, the applicable Indenture governing the debt securities will not require that any of our subsidiaries be a guarantor of any series of debt securities and will
permit the guarantors of any series of guaranteed debt securities to differ from the guarantors of any other series of guaranteed debt securities. If we issue a series of guaranteed debt securities, the identity of the specific guarantors of the
debt securities of that series will be identified in the applicable prospectus supplement.
33
If we issue a series of guaranteed debt securities, a description of some of the terms of
guarantees of those debt securities will be set forth in the applicable prospectus supplement. Unless otherwise provided in the prospectus supplement relating to a series of guaranteed debt securities, each guarantor of the debt securities of such
series will fully and unconditionally guarantee, on a joint and several basis with each other guarantor, the due and punctual payment of the principal of, and premium, if any, and interest on, each debt security of such series, all in accordance
with the terms of such debt securities and the applicable Indenture.
The applicable prospectus supplement relating to any series of
guaranteed debt securities will specify other terms of the applicable guarantees.
If the applicable prospectus supplement relating to a
series of our senior debt securities provides that those senior debt securities will have the benefit of a guarantee, unless otherwise provided in the applicable prospectus supplement, each such guarantee will be the unsubordinated and unsecured
obligation of the applicable guarantor and will rank equally in right of payment with all of the unsecured and unsubordinated indebtedness of such guarantor.
Any guarantee of any debt securities will be effectively subordinated to all existing and future secured indebtedness of the applicable
guarantor, including any secured guarantees of other Partnership debt, to the extent of the value of the collateral securing that indebtedness. Consequently, in the event of a bankruptcy, or similar proceeding with respect to any guarantor that has
provided a guarantee of any debt securities, the holders of that guarantors secured indebtedness will be entitled to proceed directly against the collateral that secures that secured indebtedness and such collateral will not be available for
satisfaction of any amount owed by such guarantor under its unsecured indebtedness, including its guarantees of any debt securities, until that secured debt is satisfied in full. Unless otherwise provided in the applicable prospectus supplement, the
Indenture will not limit the ability of any guarantor to incur secured indebtedness.
If the applicable prospectus supplement relating to
a series of our subordinated debt securities provides that those subordinated debt securities will have the benefit of a guarantee, unless otherwise provided in the applicable prospectus supplement, each such guarantee will be the subordinated and
unsecured obligation of the applicable guarantor and, in addition to being effectively subordinated to secured debt of such guarantor, will be subordinated in right of payment to all of such guarantors existing and future senior indebtedness,
including any guarantee of the senior debt securities, to the same extent and in the same manner as the subordinated debt securities are subordinated to our senior debt.
Paying Agents
We may appoint one or more
financial institutions to act as our paying agents, at whose designated offices debt securities in non-global entry form may be surrendered for payment at their maturity. We call each of those offices a paying agent. We may add, replace or terminate
paying agents from time to time. We may also choose to act as our own paying agent. We will specify in the prospectus supplement for your debt security the initial location of each paying agent for that debt security. We must notify the applicable
Trustee of changes in the paying agents.
Security
Debt securities of a series may be secured, until such time as we obtain an investment grade rating from either Moodys or Standard and
Poors and upon certain trigger events, by us and/or certain guarantors (if applicable) by the grant of liens in our and, if applicable, assets (subject to certain excluded assets) to secure the obligations under the debt securities.
Subordination
Debt securities of a
series may be subordinated to our Senior Indebtedness, which we define (subject to modification in any applicable prospectus supplement) generally as money borrowed, including guarantees, by us
34
that is not expressly subordinate or junior in right of payment to any of our other indebtedness. Subordinated debt securities will be subordinate in right of payment, to the extent and in the
manner set forth in the Subordinated Indenture, related supplemental indenture or authorizing resolution (including any related officers certificate or Partnership order), and the prospectus supplement relating to such series, to the prior
payment of all of our indebtedness that is designated as Senior Indebtedness with respect to that series. Under the Subordinated Indenture, payment of the principal of, and interest and premium, if any, on, the subordinated debt
securities will generally be subordinated and junior in right of payment to the prior payment in full of all indebtedness that is designated Senior Indebtedness with respect to that series. The Subordinated Indenture will provide that no
payment of principal of, or interest and any premium on, the subordinated debt securities may be made in the event:
|
|
|
we fail to pay the principal, interest, premium, if any, or any other amounts on any Senior Indebtedness when due; |
|
|
|
any other default on Senior Indebtedness occurs and the maturity of such Senior Indebtedness is accelerated in accordance with its terms unless, in either case, the default has been cured or waived and any such
acceleration has been rescinded or such Senior Indebtedness has been paid in full in cash; |
|
|
|
of any insolvency, bankruptcy or similar proceeding involving us or our property; or |
|
|
|
of a default (other than payment default) with respect to the Senior Indebtedness that imposes a payment blockage on the subordinated debt securities for a maximum of 179 days at any one time, unless the Event of
Default has been cured or waived or shall no longer exist. |
The Subordinated Indenture will not limit the amount of Senior
Indebtedness that we may incur.
No Individual Liability of Officers, Directors, Employees or Equityholders
No past, present or future partner, incorporator, manager, member, director, officer, employee, unitholder or equityholder, as such, of ours or
our general partner, or any of our or its affiliates shall have any liability in respect of our obligations or the obligations of any guarantor under any Indenture or the debt securities or for any claim based on such obligations or their creation,
by reason of his, her or its status as such. The preceding paragraph does not change any obligation of general partner may have to restore any negative balance in its capital account (maintained by it pursuant to our partnership agreement ) upon
liquidation of its interest in us.
Each holder of debt securities by accepting a debt security waives and releases all liability described
in the first paragraph of this subsection. This waiver and release are part of the consideration for our issuance of the debt securities. The waiver may not be effective under federal securities laws, however, and it is the view of the SEC that such
a waiver is against public policy.
Governing Law
Each Indenture, any guarantee of debt securities and all debt securities will be governed by, and construed in accordance with, the laws of the
State of New York.
35
MATERIAL FEDERAL INCOME TAX CONSEQUENCES
This section is a summary of the material tax considerations that may be relevant to prospective unitholders who are individual citizens or
residents of the United States and, unless otherwise noted in the following discussion, is the opinion of Baker & Hostetler LLP, counsel to our general partner and us, insofar as it relates to legal conclusions with respect to matters of
U.S. federal income tax law that are addressed in this section. This section is based upon current provisions of the Internal Revenue Code of 1986, as amended, which we refer to as the Internal Revenue Code, existing and proposed Treasury
regulations promulgated under the Internal Revenue Code, which we refer to as the Treasury Regulations, and current administrative rulings and court decisions, all of which are subject to change. Later changes in these authorities may cause the tax
consequences to vary substantially from the consequences described below. Unless the context otherwise requires, references in this section to us or we are references to Midcoast Energy Partners L.P. and our operating
subsidiaries.
The following discussion does not comment on all federal income tax matters affecting us or our unitholders. Moreover, the
discussion focuses on unitholders who are individual citizens or residents of the United States for U.S. federal income tax purposes and has only limited application to corporations, estates, entities treated as partnerships for U.S. federal income
tax purposes, trusts, nonresident aliens, U.S. expatriates and former citizens or long-term residents of the United States or other unitholders subject to specialized tax treatment, such as banks, insurance companies and other financial
institutions, tax-exempt institutions, foreign persons including, without limitation, controlled foreign corporations, passive foreign investment companies and non-U.S. persons eligible for the benefits of an applicable income tax treaty with the
United States, individual retirement accounts, or IRAs, employee benefit plans, real estate investment trusts, or REITs, or mutual funds, dealers in securities or currencies, traders in securities, U.S. persons whose functional currency
is not the U.S. dollar, persons holding their Class A common units as part of a straddle, hedge, conversion transaction or other risk reduction transaction, and persons deemed to sell their Class A
common units under the constructive sale provisions of the Internal Revenue Code. In addition, the discussion only comments to a limited extent on state, local and foreign tax consequences. Accordingly, we encourage each prospective unitholder to
consult the unitholders own tax advisor in analyzing the state, local and foreign tax consequences particular to the unitholder of the ownership or disposition of Class A common units and potential changes in applicable tax laws.
No ruling has been requested from the Internal Revenue Service, or IRS, regarding our characterization as a partnership for tax purposes or
any other tax consideration discussed in this section. Instead, we will rely on opinions of Baker & Hostetler LLP. Unlike a ruling, an opinion of counsel represents only that counsels best legal judgment and does not bind the IRS or
the courts. Accordingly, the opinions and statements made herein may not be sustained by a court if contested by the IRS. Any contest of this sort with the IRS may materially and adversely impact the market for the Class A common units and the
prices at which Class A common units trade. In addition, the costs of any contest with the IRS, principally legal, accounting and related fees, will result in a reduction in cash available for distribution to our unitholders and our general
partner and thus will be borne indirectly by our unitholders and our general partner. Furthermore, the tax treatment of us, or of an investment in us, may be significantly modified by future legislative or administrative changes or court decisions.
Any modifications may or may not be retroactively applied.
All statements as to matters of federal income tax law and legal conclusions
with respect thereto, but not as to factual matters, contained in this section, unless otherwise noted, are the opinion of Baker & Hostetler LLP and are based on the accuracy of the representations made by us and by the delegate of our
general partner with respect to certain factual matters.
For the reasons described below, Baker & Hostetler LLP has not rendered
an opinion with respect to the following specific federal income tax issues: (1) the treatment of a unitholder whose Class A common units are loaned to a short seller to cover a short sale of Class A common units (see Tax
Consequences of Unit OwnershipTreatment of Short Sales); (2) whether our monthly convention for allocating taxable income and losses is permitted by existing Treasury Regulations (see Disposition of Common
UnitsAllocations
36
Between Transferors and Transferees); (3) whether our method for taking into account Section 743 of the Internal Revenue Code adjustments is sustainable in certain cases (see
Tax Consequences of Unit OwnershipSection 754 Election and Uniformity of Units); and (4) whether assignees of Class A common units who fail to execute and deliver transfer applications will be
treated as partners of Midcoast Partners for federal income tax purposes (see Limited Partner Status below).
Partnership Status
A
partnership generally is not a taxable entity and incurs no federal income tax liability. Instead, each partner of a partnership is required to take into account the partners share of items of income, gain, loss and deduction of the
partnership in computing the partners federal income tax liability, regardless of whether cash distributions are made to the unitholder by the partnership. Distributions by a partnership to a partner are generally taxable only to the extent
the amount of cash distributed to the partner is in excess of the partners adjusted basis in the partners partnership interest.
Section 7704 of the Internal Revenue Code provides that publicly traded partnerships will, as a general rule, be taxed as corporations.
An exception, however, referred to as the Qualifying Income Exception, exists with respect to publicly traded partnerships of which 90% or more of the gross income for every taxable year consists of qualifying income.
Qualifying income includes income and gains derived from the transportation, processing, storage and marketing of crude oil, natural gas and products produced from them. Other types of qualifying income include interest, other than from a financial
business, dividends, gains from the sale of real property and gains from the sale or other disposition of capital assets held for the production of income that otherwise constitutes qualifying income. We estimate that as of the date of this
prospectus, more than 90% of our current gross income is qualifying income; however, the portion of our income that is qualifying income may change from time to time.
No ruling has been or will be sought from the IRS, and the IRS has made no determination as to our status or the status of our operating
subsidiaries for federal income tax purposes or whether our operations generate qualifying income under Section 7704 of the Internal Revenue Code. Instead, we will rely on the opinion of Baker & Hostetler LLP on such
matters. It is the opinion of Baker & Hostetler LLP that, based upon the Internal Revenue Code, its regulations, published revenue rulings and court decisions and the representations described below that as of the date of this prospectus:
|
|
|
we will be classified as a partnership for federal income tax purposes; and |
|
|
|
each of our operating subsidiaries will be treated as a partnership or will be disregarded as an entity separate from us for federal income tax purposes. |
In rendering its opinion, Baker & Hostetler LLP has relied on factual representations made by us and our general partner. The
representations made by us and our general partner upon which Baker & Hostetler LLP has relied include:
|
|
|
neither we nor any of the operating subsidiaries has elected or will elect to be treated as a corporation; and |
|
|
|
for each taxable year, more than 90% of our gross income has been and will be income of the type that in the opinion of Baker & Hostetler LLP is qualifying income within the meaning of
Section 7704(d) of the Internal Revenue Code. |
We believe that these representations are true and expect that these
representations will continue to be true in the future.
If we fail to meet the Qualifying Income Exception, other than a failure that is
determined by the IRS to be inadvertent and that is cured within a reasonable time after discovery, in which case the IRS may also require us
37
to make adjustments with respect to our unitholders or pay other amounts. In cases determined by the IRS to be not inadvertent, we will be treated as if we had transferred all of our assets,
subject to liabilities, to a newly formed corporation, on the first day of the year in which we fail to meet the Qualifying Income Exception, in return for stock in that corporation, and then distributed that stock to the unitholders in liquidation
of their interests in us. This deemed contribution and liquidation should be tax-free to unitholders and us so long as we, at that time, do not have liabilities in excess of the tax basis of our assets. Thereafter, we would be treated as a
corporation for federal income tax purposes.
If we were treated as an association taxable as a corporation in any taxable year, either as
a result of a failure to meet the Qualifying Income Exception or otherwise, our items of income, gain, loss and deduction would be reflected only on our tax return rather than being passed through to our unitholders, and our net income would be
taxed to us at corporate rates. In addition, any distribution made to a unitholder would be treated as taxable dividend income, to the extent of our current and accumulated earnings and profits, or, in the absence of earnings and profits, a
nontaxable return of capital, to the extent of the unitholders tax basis in the unitholders units, or taxable capital gain, after the unitholders tax basis in the unitholders units is reduced to zero. Accordingly, taxation as
a corporation could result in a material reduction in a unitholders cash flow and after-tax return and thus would likely result in a substantial reduction of the value of the units.
The discussion below is based on Baker & Hostetler LLPs opinion that we will be classified as a partnership for federal
income tax purposes.
Limited Partner Status
Our unitholders will be treated as partners of Midcoast Partners for federal income tax purposes. Also, (1) unitholders whose Class A
common units are held in street name or by a nominee and who have the right to direct the nominee in the exercise of all substantive rights attendant to the ownership of their Class A common units, and (2) assignees who have executed and
delivered transfer applications and are awaiting admission as limited partners, will be treated as partners of Midcoast Partners for federal income tax purposes.
Because there is no direct authority dealing with the status of assignees of Class A common units who are entitled to execute and deliver
transfer applications and become entitled to direct the exercise of attendant rights, but who fail to execute and deliver transfer applications, Baker & Hostetler LLP is unable to opine that such persons are our partners for federal income
tax purposes. Furthermore, a purchaser or other transferee of Class A common units who does not execute and deliver a transfer application may not receive some federal income tax information or reports furnished to record unitholders unless the
Class A common units are held in a nominee or street name account and the nominee or broker has executed and delivered a transfer application for those Class A common units.
A beneficial owner of Class A common units whose units have been transferred to a short seller to complete a short sale would appear to
lose the owners status as a partner with respect to those units for federal income tax purposes. See Tax Consequences of Unit OwnershipTreatment of Short Sales.
Income, gains, losses or deductions would not appear to be reportable by a unitholder who is not a partner for federal income tax purposes,
and any cash distributions received by a unitholder who is not a partner for federal income tax purposes would therefore appear to be fully taxable as ordinary income. These holders are urged to consult their tax advisors with respect to the tax
consequences to them of holding Class A common units.
The references to unitholders in the discussion that follows
are to persons who are treated as partners in Midcoast Partners for federal income tax purposes.
38
Tax Consequences of Class A Common Unit Ownership
Flow-through of taxable income
Subject to the discussion below under Tax Consequences of Class A Common Unit OwnershipEntity-Level Collections,
we will not pay any federal income tax. Instead, each unitholder will be required to report on the unitholders income tax return the unitholders share of our income, gains, losses and deductions without regard to whether we make cash
distributions to the unitholder. Consequently, we may allocate income to a unitholder even if the unitholder has not received a cash distribution. Each unitholder will be required to include in income the unitholders allocable share of our
income, gains, losses and deductions for our taxable year ending with or within the unitholders taxable year. Our taxable year ends on December 31.
Treatment of distributions
Distributions by us to a unitholder generally will not be taxable to the unitholder for federal income tax purposes, except to the extent the
amount of any such cash distribution exceeds the unitholders tax basis in the unitholders Class A common units immediately before the distribution. Our cash distributions in excess of a unitholders tax basis generally will be
considered to be gain from the sale or exchange of the Class A common units, taxable in accordance with the rules described under Disposition of Class A Common Units. Any reduction in a unitholders share of our
liabilities for which no partner, including the general partner, bears the economic risk of loss, referred to as nonrecourse liabilities, will be treated as a distribution by us of cash to that unitholder.
A decrease in a unitholders percentage interest in us because of our issuance of additional units will decrease the unitholders
share of our nonrecourse liabilities, and thus will result in a corresponding deemed distribution of cash. This deemed distribution may constitute a non-pro rata distribution. A non-pro rata distribution of money or property may result in ordinary
income to a unitholder, regardless of the unitholders tax basis in the unitholders Class A common units, if the distribution reduces the unitholders share of our unrealized receivables, including depreciation
recapture or substantially appreciated inventory items, each as defined in the Internal Revenue Code, and collectively, Section 751 Assets. To that extent, the unitholder will be treated as having been distributed the
unitholders proportionate share of the Section 751 Assets and then having exchanged those assets with us in return for the non-pro rata portion of the actual distribution made to the unitholder. This latter deemed exchange will generally
result in the unitholders realization of ordinary income, which will equal the excess of (1) the non-pro rata portion of that distribution over (2) the unitholders tax basis (often zero) for the share of Section 751 Assets
deemed relinquished in the exchange. The Treasury Department recently has issued proposed regulations that, if issued in their current form as final Treasury Regulations, may mitigate the consequences of deemed non-pro rata distributions of cash.
To the extent our distributions cause a unitholders at-risk amount to be less than zero at the end of any taxable year,
the unitholder must recapture any losses deducted in previous years. See Tax Consequences of Class A Common Unit OwnershipLimitations on Deductibility of Losses.
The allocation of taxable income to Class A common unitholders, taking into account special allocations of gross income that otherwise
would be allocated to either the subordinated units or the Class B common units, for any given period may be less than or greater than the actual cash distributed on the Class A common units purchased in this offering.
Basis of Class A common units
A unitholders initial tax basis for the unitholders Class A common units will be the amount the unitholders paid for the
Class A common units plus the unitholders share of our nonrecourse liabilities. That basis will be increased by the unitholders share of our income and by any increases in the unitholders share of our nonrecourse liabilities.
That basis will be decreased, but not below zero, by distributions from us, by the unitholders share of our losses, by any decreases in the unitholders share of our nonrecourse liabilities and by
39
the unitholders share of our expenditures that are not deductible in computing taxable income and are not required to be capitalized. A unitholder will have no share of our debt that is
recourse to our general partner but will have a share, generally based on the unitholders share of profits, of our nonrecourse liabilities. See Disposition of Common UnitsRecognition of Gain or Loss. The IRS has ruled
that a partner who acquires interests in a partnership in separate transactions must combine those interests and maintain a single adjusted tax basis for all of those interests.
Limitations on deductibility of losses
The deduction by a unitholder of the unitholders share of our losses will be limited to the tax basis in the unitholders units and,
in the case of an individual unitholder, estate, trust, or corporate unitholder (if more than 50% of the value of the corporate unitholders stock is owned directly or indirectly by or for five or fewer individuals or some tax-exempt
organizations) to the amount for which the unitholder is considered to be at risk with respect to our activities, if that is less than the unitholders tax basis. A Class A common unitholder subject to these limitations must
recapture losses deducted in previous years to the extent that distributions cause the unitholders at-risk amount to be less than zero at the end of any taxable year. Losses disallowed to a unitholder or recaptured as a result of these
limitations will carry forward and will be allowable as a deduction to the extent that the unitholders at-risk amount is subsequently increased, provided such losses do not exceed such Class A common unitholders tax basis in the
unitholders Class A common units. Upon the taxable disposition of a Class A common unit, any gain recognized by a unitholder can be offset by losses that previously were suspended by the at-risk limitation but may not be offset by
losses suspended by the basis limitation. Any loss previously suspended by the at-risk limitation in excess of that gain would no longer be utilizable.
In general, a unitholder will be at risk to the extent of the tax basis of the unitholders units, excluding any portion of that basis
attributable to the unitholders share of our nonrecourse liabilities, reduced by (1) any portion of that basis representing amounts otherwise protected against loss because of a guarantee, stop loss agreement or other similar arrangement
and (2) any amount of money the unitholder borrows to acquire or hold the unitholders units, if the lender of those borrowed funds owns an interest in us, is related to the unitholder or can look only to the units for repayment. A
unitholders at-risk amount will increase or decrease as the tax basis of the unitholders units increases or decreases, other than tax basis increases or decreases attributable to increases or decreases in the unitholders share of
our nonrecourse liabilities.
In addition to the basis and at-risk limitations on the deductibility of losses, the passive loss
limitations generally provide that individuals, estates, trusts and some closely-held corporations and personal service corporations can deduct losses from passive activities, which are generally trade or business activities in which the taxpayer
does not materially participate, only to the extent of the taxpayers income from those passive activities. The passive loss limitations are applied separately with respect to each publicly traded partnership. Consequently, any passive losses
we generate will only be available to offset our passive income generated in the future and will not be available to offset income from other passive activities or investments, including our investments or a unitholders investments in other
publicly traded partnerships, or the unitholders salary, active business or other income. Passive losses that are not deductible because they exceed a unitholders share of income we generate may be deducted in full when the unitholder
disposes of the unitholders entire investment in us in a fully taxable transaction with an unrelated party. The passive loss limitations are applied after other applicable limitations on deductions, including the at-risk rules and the basis
limitation.
A unitholders share of our net income may be offset by any of our suspended passive losses, but it may not be offset by
any other current or carryover losses from other passive activities, including those attributable to other publicly traded partnerships.
40
Limitations on interest deductions
The deductibility of a non-corporate taxpayers investment interest expense is generally limited to the amount of that
taxpayers net investment income. Investment interest expense includes:
|
|
|
interest on indebtedness properly allocable to property held for investment; |
|
|
|
our interest expense attributed to portfolio income; and |
|
|
|
the portion of interest expense incurred to purchase or carry an interest in a passive activity to the extent attributable to portfolio income. |
The computation of a unitholders investment interest expense will take into account interest on any margin account borrowing or other
loan incurred to purchase or carry a Class A common unit. Net investment income includes gross income from property held for investment and amounts treated as portfolio income under the passive loss rules, less deductible expenses, other than
interest, directly connected with the production of investment income, but generally does not include gains attributable to the disposition of property held for investment or (if applicable) qualified dividend income. The IRS has indicated that the
net passive income earned by a publicly traded partnership will be treated as investment income to its unitholders for purposes of determining the unitholders ability to deduct investment interest expense. In addition, the unitholders
share of our portfolio income will be treated as investment income.
Entity-level collections
If we are required or elect under applicable law to pay any federal, state, local or foreign income tax on behalf of any unitholder or our
general partner or any former unitholder, we are authorized to pay those taxes from our funds. That payment, if made, will be treated as a distribution of cash to the unitholder on whose behalf the payment was made. If the payment is made on behalf
of a person whose identity cannot be determined, we are authorized to treat the payment as a distribution to all current unitholders. We are authorized to amend our partnership agreement in the manner necessary to maintain uniformity of intrinsic
tax characteristics of units and to adjust later distributions, so that after giving effect to these distributions, the priority and characterization of distributions otherwise applicable under our partnership agreement is maintained as nearly as is
practicable. Payments by us as described above could give rise to an overpayment of tax on behalf of an individual unitholder in which event the unitholder would be required to file a claim in order to obtain a credit or refund.
Allocation of income, gain, loss and deduction
In general, if we have a net profit, our items of income, gain, loss and deduction will be allocated among our general partner and the
unitholders in accordance with their percentage interests in us. If we have a net loss, that loss generally will be allocated first to our general partner and the unitholders in accordance with their percentage interests in us to the extent of their
positive capital accounts, and, second, to our general partner. As provided in our partnership agreement, for each taxable year during which the subordinated units or Class B common units are outstanding, items of gross income in a specified amount
will be specially allocated to the holders of the Class A common units. The amount of the special allocation, however, will not exceed the amount that would result in a purchaser of Class A common units in our initial public offering being
allocated an amount of federal taxable income for such year that exceeds 20% of the cash distributed on the Class A common units purchased in the initial public offering with respect to such year.
Specified items of our income, gain, loss and deduction will be allocated to account for (1) any difference between the tax basis and
fair market value of our assets at the time of any offering pursuant to this prospectus or any prospectus supplement and (2) any difference between the tax basis and fair market value of any property contributed to us by the general partner and
its affiliates (or by a third party) that exists at the time of such contribution, together referred to in this discussion as the Contributed Property. These Section 704(c) Allocations are required to eliminate the difference
between a partners book capital account, which is
41
credited with the fair market value of Contributed Property, and tax capital account, which is credited with the basis of the Contributed Property. Such difference is referred to in
this discussion as the Book-Tax Disparity. The effect of these Section 704(c) Allocations to a unitholder purchasing Class A common units from us in this offering will be essentially the same as if the tax bases of our assets
were equal to their fair market values at the time of this offering. In the event we issue additional units or engage in certain other transactions in the future, reverse Section 704(c) Allocations, similar to the
Section 704(c) Allocations described above, will be made to the general partner and all of our unitholders immediately prior to such issuance or other transactions to account for the difference between the book basis for purposes of
maintaining capital accounts and the fair market value of all property held by us at the time of such issuance or future transaction. In addition, items of recapture income will be allocated to the extent possible to the unitholder who was allocated
the deduction giving rise to the treatment of that gain as recapture income in order to minimize the recognition of ordinary income by some unitholders. Finally, although we do not expect that our operations will result in the creation of negative
capital accounts, if negative capital accounts nevertheless result, items of our income and gain will be allocated in an amount and manner sufficient to eliminate the negative balance as quickly as possible.
An allocation of items of our income, gain, loss or deduction, other than an allocation required by the Internal Revenue Code to eliminate the
Book-Tax Disparity, generally will be given effect for federal income tax purposes in determining a partners share of an item of income, gain, loss or deduction only if the allocation has substantial economic effect. In any other
case, a partners share of an item will be determined on the basis of the partners interest in us, which will be determined by taking into account all the facts and circumstances, including:
|
|
|
the partners relative contributions to us; |
|
|
|
the interests of all the partners in profits and losses; |
|
|
|
the interest of all the partners in cash flow; and |
|
|
|
the rights of all the partners to distributions of capital upon liquidation. |
Baker &
Hostetler LLP is of the opinion that, with the exception of the issues described in Tax Consequences of Class A Common Unit OwnershipSection 754 Election, Disposition of Class A Common
UnitsAllocations Between Transferors and Transferees, and Uniformity of Class A Common Units, allocations under our partnership agreement will be given effect for federal income tax purposes in determining a
partners share of an item of income, gain, loss or deduction.
Treatment of short sales
A unitholder whose Class A common units are loaned to a short seller to cover a short sale of units may be considered as
having disposed of those units. If so, the unitholder would no longer be treated for tax purposes as a partner with respect to those Class A common units during the period of the loan and may recognize gain or loss from the disposition. See
Disposition of Class A Common UnitsRecognition of Gain or Loss. As a result, during this period:
|
|
|
any of our income, gain, loss or deduction with respect to those Class A common units would not be reportable by the unitholder; |
|
|
|
any cash distributions received by the unitholder as to those Class A common units would be fully taxable; and |
|
|
|
while not entirely free from doubt, all of these distributions would appear to be ordinary income. |
Because there is no direct or indirect controlling authority on the issue relating to partnership interests, Baker & Hostetler LLP
has not rendered an opinion regarding the tax treatment of a unitholder whose Class A common units are loaned to a short seller to cover a short sale of Class A common units; therefore, unitholders
42
desiring to assure their status as partners and avoid the risk of gain recognition from a loan to a short seller are urged to consult a tax advisor to discuss whether it is advisable to modify
any applicable brokerage account agreements to prohibit their brokers from borrowing and loaning their units. The IRS has previously announced that it is studying issues relating to the tax treatment of short sales of partnership interests.
Alternative minimum tax
Each unitholder will be required to take into account the unitholders distributive share of any items of our income, gain, loss or
deduction for purposes of the alternative minimum tax. The current minimum tax rate for noncorporate taxpayers is 26% on the first $182,500 of alternative minimum taxable income in excess of the exemption amount and 28% on any additional alternative
minimum taxable income. Prospective unitholders are urged to consult with their tax advisors as to the impact of an investment in units on their liability for the alternative minimum tax.
Tax rates
Under
current law, the highest marginal U.S. federal income tax rate applicable to ordinary income of individuals is 39.6% and the highest marginal U.S. federal income tax rate applicable to long-term capital gains, which generally are capital gains on
certain assets held for more than twelve months, of individuals is 20%. Such rates are subject to change by new legislation at any time.
In addition, a 3.8% Medicare tax, or net investment income tax, or NIIT, is imposed on certain net investment income earned by individuals,
estates and trusts. For these purposes, net investment income generally includes a unitholders allocable share of our income and gain realized by a unitholder from a sale of units. In the case of an individual, the tax will be imposed on the
lesser of (1) the unitholders net investment income and (2) the amount by which the unitholders modified adjusted gross income exceeds $250,000 (if the unitholder is married and filing jointly or a surviving spouse), $125,000
(if the unitholder is married and filing separately) or $200,000 (in any other case). In the case of an estate or trust, the tax will be imposed on the lesser of (1) undistributed net investment income and (2) the excess adjusted gross
income over the dollar amount at which the highest income tax bracket applicable to an estate or trust begins. Prospective unitholders are urged to consult with their tax advisors as to the impact of the NIIT on an investment in our Class A
common units.
Section 754 election
We have made the election permitted by Section 754 of the Internal Revenue Code. That election is irrevocable without the consent of the
IRS unless there is a constructive termination of the partnership. See Disposition of Class A Common UnitsConstructive Termination. The election generally will permit us to adjust a Class A common unit
purchasers tax basis in our assets (inside basis) under Section 743(b) of the Internal Revenue Code to reflect the purchasers purchase price. This election does not apply with respect to a person who purchases
Class A common units directly from us. The Section 743(b) adjustment belongs to the purchaser and not to other unitholders. For purposes of this discussion, the inside basis in our assets with respect to a unitholder will be considered to
have two components: (1) the unitholders share of our tax basis in our assets (common basis) and (2) the unitholders Section 743(b) adjustment to that basis.
We have adopted the remedial allocation method as to all our properties. Where the remedial allocation method is adopted, the Treasury
Regulations under Section 743 of the Internal Revenue Code require a portion of the Section 743(b) adjustment that is attributable to recovery property that is subject to depreciation under Section 168 of the Internal Revenue Code and
whose book basis is in excess of its tax basis to be depreciated over the remaining cost recovery period for the propertys unamortized Book-Tax Disparity. Under Treasury Regulations governing a Section 743(b) adjustment attributable to
property subject to depreciation under Section 167 of the Internal Revenue Code, rather than cost recovery deductions under Section 168, such an adjustment is generally required to be depreciated using either the straight-line method or
the 150% declining balance method. Under our partnership agreement, our general partner is authorized to take a position to preserve
43
the uniformity of units even if that position is not consistent with a literal application of these and any other Treasury Regulations. See Tax Treatment of Operations and
Uniformity of Class A Common Units.
We intend to depreciate the portion of a Section 743(b) adjustment
attributable to unrealized appreciation in the value of Contributed Property, to the extent of any unamortized Book-Tax Disparity, using a rate of depreciation or amortization derived from the depreciation or amortization method and useful life
applied to the propertys unamortized Book-Tax Disparity, or treat that portion as non-amortizable to the extent attributable to property which is not amortizable. This method is consistent with the methods employed by other publicly traded
partnerships but is arguably inconsistent with Treasury Regulations governing Section 743(b) adjustments for property depreciable under Section 167, which is not expected to directly apply to a material portion of our assets. To the extent
this Section 743(b) adjustment is attributable to appreciation in value in excess of the unamortized Book-Tax Disparity, we will apply the rules described in the Treasury Regulations and legislative history. If we determine that this position
cannot reasonably be taken, we may take a depreciation or amortization position under which all purchasers acquiring units in the same month would receive depreciation or amortization, whether attributable to common basis or a Section 743(b)
adjustment, based upon the same applicable rate as if they had purchased a direct interest in our assets. This kind of aggregate approach may result in lower annual depreciation or amortization deductions than would otherwise be allowable to some
unitholders. See Uniformity of Units. A unitholders tax basis for the unitholders Class A common units is reduced by the unitholders share of our deductions (whether or not such deductions were claimed on an
individuals income tax return) so that any position we take that understates deductions will overstate the Class A common unitholders basis in the unitholders Class A common units, which may cause the unitholder to
understate gain or overstate loss on any sale of such units. See Disposition of Class A Common UnitsRecognition of Gain or Loss. Baker & Hostetler LLP is unable to opine as to whether our method for taking into
account Section 743 adjustments is sustainable for property subject to depreciation under Section 167 of the Internal Revenue Code or if we use an aggregate approach as described above, as there is no direct or indirect controlling
authority addressing the validity of these positions. Moreover, the IRS may challenge our position with respect to depreciating or amortizing the Section 743(b) adjustment we take to preserve the uniformity of the units. If such a challenge
were sustained, the gain from the sale of units might be increased without the benefit of additional deductions.
A Section 754
election is advantageous if the transferees tax basis in the transferees units is higher than the units share of the aggregate tax basis of our assets immediately prior to the transfer. In that case, as a result of the election,
the transferee would have, among other items, a greater amount of depreciation deductions and the transferees share of any gain or loss on a sale of our assets would be less. Conversely, a Section 754 election is disadvantageous if the
transferees tax basis in the transferees units is lower than those units share of the aggregate tax basis of our assets immediately prior to the transfer. Thus, the fair market value of the units may be affected either favorably or
unfavorably by the election. A basis adjustment is required regardless of whether a Section 754 election is made in the case of a transfer of an interest in us if we have a substantial built-in loss immediately after the transfer, or if we
distribute property and have a substantial basis reduction. Generally, a built-in loss or a basis reduction is substantial if it exceeds $250,000.
The calculations involved in the Section 754 election are complex and will be made on the basis of assumptions as to the value of our
assets and other matters. For example, the allocation of the Section 743(b) adjustment among our assets must be made in accordance with the Internal Revenue Code. The IRS could seek to reallocate some or all of any Section 743(b)
adjustment allocated by us to our tangible assets to goodwill instead. Goodwill, as an intangible asset, is generally nonamortizable or amortizable over a longer period of time or under a less accelerated method than our tangible assets. We cannot
assure you that the determinations we make will not be successfully challenged by the IRS and that the deductions resulting from them will not be reduced or disallowed altogether. Should the IRS require a different basis adjustment to be made, and
should, in our opinion, the expense of compliance exceed the benefit of the election, we may seek permission from the IRS to revoke our Section 754 election. If permission is granted, a subsequent purchaser of units may be allocated more income
than the subsequent purchaser would have been allocated had the election not been revoked.
44
Tax Treatment of Operations
Accounting method and taxable year
We use the year ending December 31 as our taxable year and the accrual method of accounting for federal income tax purposes. Each
unitholder will be required to include in income the unitholders share of our income, gain, loss and deduction for our taxable year ending within or with the unitholders taxable year. In addition, a unitholder who has a taxable year
ending on a date other than December 31 and who disposes of all of the unitholders units following the close of our taxable year but before the close of the unitholders taxable year must include the unitholders share of our
income, gain, loss and deduction in income for the unitholders taxable year, with the result that the unitholder will be required to include in income for the unitholders taxable year the unitholders share of more than twelve
months of our income, gain, loss and deduction. See Disposition of Class A Common UnitsAllocations Between Transferors and Transferees.
Tax basis, depreciation and amortization
The tax basis of our assets, as adjusted with respect to each purchaser on account of our Section 754 election, will be used for purposes
of computing depreciation and cost recovery deductions and, ultimately, gain or loss on the disposition of these assets. See Tax Consequences of Unit OwnershipSection 754 Election above. The federal income tax consequences
attributable to the difference between the fair market value of our assets and their tax basis immediately prior to an offering will be borne by our unitholders holding interests in us immediately prior to any such offering. See Tax
Consequences of Class A Common Unit OwnershipAllocation of Income, Gain, Loss and Deduction.
To the extent allowable, we
may elect to use the depreciation and cost recovery methods, including bonus depreciation to the extent available, that will result in the largest deductions being taken in the early years after assets subject to these allowances are placed in
service. See Uniformity of Class A Common Units. Property we subsequently acquire or construct may be depreciated using accelerated methods permitted by the Internal Revenue Code.
If we dispose of depreciable property by sale, foreclosure or otherwise, all or a portion of any gain, determined by reference to the amount
of depreciation previously deducted and the nature of the property, may be subject to the recapture rules and taxed as ordinary income rather than capital gain. Similarly, a unitholder who has taken cost recovery or depreciation deductions with
respect to property we own will likely be required to recapture some or all of those deductions as ordinary income upon a sale of the unitholders interest in us. See Tax Consequences of Unit OwnershipAllocation of Income,
Gain, Loss and Deduction and Disposition of Class A Common UnitsRecognition of Gain or Loss.
The costs
we incur in selling our Class A common units (referred to as syndication expenses) must be capitalized and cannot be deducted currently, ratably or upon our termination. There are uncertainties regarding the classification of costs
as organization expenses, which may be amortized by us, and as syndication expenses, which may not be amortized by us. The underwriting discounts and commissions we incur will be treated as syndication expenses.
Valuation and tax basis of our properties
The federal income tax consequences of the ownership and disposition of Class A common units will depend in part on our estimates of the
relative fair market values, and the initial tax bases, of our assets. Although we may from time to time consult with professional appraisers regarding valuation matters, we will make many of the relative fair market value estimates ourselves. These
estimates and determinations of basis are subject to challenge and will not be binding on the IRS or the courts. If the estimates of fair market value or basis are later found to be incorrect, the character and amount of items of income, gain, loss
or deductions previously reported
45
by unitholders might change, and unitholders might be required to adjust their tax liability for prior years and incur interest and penalties with respect to those adjustments.
Disposition of Class A Common Units
Recognition of gain or loss
Gain or loss will be recognized on a sale of Class A common units equal to the difference between the amount realized and the
unitholders tax basis for the Class A common units sold. A unitholders amount realized will be measured by the sum of the cash or the fair market value of other property received by the unitholder plus the unitholders share of
our nonrecourse liabilities. Because the amount realized includes a unitholders share of our nonrecourse liabilities, the gain recognized on the sale of units could result in a tax liability in excess of any cash received from the sale.
Prior distributions from us that in the aggregate were in excess of cumulative net taxable income for a Class A common unit and,
therefore, decreased a unitholders tax basis in that Class A common unit will, in effect, become taxable income if the Class A common unit is sold at a price greater than the unitholders tax basis in that Class A common
unit, even if the price received is less than the unitholders original cost.
Except as noted below, gain or loss recognized by a
unitholder, other than a dealer in Class A common units, on the sale or exchange of a Class A common unit will generally be taxable as capital gain or loss. Capital gain recognized by an individual on the sale of Class A
common units held for more than 12 months generally will be taxed at the U.S. federal income tax rate applicable to long-term capital gains. A portion of this gain or loss, which will likely be substantial, however, will be separately computed and
taxed as ordinary income or loss under Section 751 of the Internal Revenue Code to the extent attributable to assets giving rise to depreciation recapture or other unrealized receivables or to inventory items we own. The
term unrealized receivables includes potential recapture items, including depreciation recapture. Ordinary income attributable to unrealized receivables, inventory items and depreciation recapture may exceed net taxable gain realized
upon the sale of a unit and may be recognized even if there is a net taxable loss realized on the sale of a unit. Thus, a unitholder may recognize both ordinary income and a capital loss upon a sale of units. Capital losses may offset capital gains
and no more than $3,000 of ordinary income, in the case of individuals, and may only be used to offset capital gains in the case of corporations. Both ordinary income and capital gain recognized on a sale of units may be subject to the NIIT in
certain circumstances. See Tax Consequences of Class A Common Unit OwnershipTax Rates.
The IRS has ruled
that a partner who acquires interests in a partnership in separate transactions must combine those interests and maintain a single adjusted tax basis for all those interests. Upon a sale or other disposition of less than all of those interests, a
portion of that tax basis must be allocated to the interests sold using an equitable apportionment method, which generally means that the tax basis allocated to the interest sold equals an amount that bears the same relation to the
partners tax basis in the partners entire interest in the partnership as the value of the interest sold bears to the value of the partners entire interest in the partnership. Treasury Regulations under Section 1223 of the
Internal Revenue Code allow a selling unitholder who can identify Class A common units transferred with an ascertainable holding period to elect to use the actual holding period of the Class A common units transferred. Thus, according to
the ruling discussed above, a Class A common unitholder will be unable to select high or low basis Class A common units to sell as would be the case with corporate stock, but, according to the Treasury Regulations, the unitholder may
designate specific Class A common units sold for purposes of determining the holding period of units transferred. A unitholder electing to use the actual holding period of Class A common units transferred must consistently use that
identification method for all subsequent sales or exchanges of Class A common units. A unitholder considering the purchase of additional units or a sale of Class A common units purchased in separate transactions is urged to consult the
unitholders tax advisor as to the possible consequences of this ruling and application of the Treasury Regulations.
46
Specific provisions of the Internal Revenue Code affect the taxation of some financial products
and securities, including partnership interests, by treating a taxpayer as having sold an appreciated partnership interest, one in which gain would be recognized if it were sold, assigned or terminated at its fair market value, if the
taxpayer or related persons enter(s) into:
|
|
|
an offsetting notional principal contract; or |
|
|
|
a futures or forward contract; |
in each case, with respect to the partnership interest or substantially
identical property.
Moreover, if a taxpayer has previously entered into a short sale, an offsetting notional principal contract or a
futures or forward contract with respect to the partnership interest, the taxpayer will be treated as having sold that position if the taxpayer or a related person then acquires the partnership interest or substantially identical property. The
Secretary of the Treasury is also authorized to issue regulations that treat a taxpayer that enters into transactions or positions that have substantially the same effect as the preceding transactions as having constructively sold the financial
position.
Allocations between transferors and transferees
In general, our taxable income and losses will be determined annually, will be prorated on a monthly basis and will be subsequently apportioned
among the unitholders in proportion to the number of units owned by each of them as of the opening of the applicable exchange on the first business day of the month, which we refer to in this prospectus as the Allocation Date. Gain or
loss realized on a sale or other disposition of our assets other than in the ordinary course of business, however, will be allocated among the unitholders on the Allocation Date in the month in which that gain or loss is recognized. As a result, a
unitholder transferring units may be allocated income, gain, loss and deduction realized after the date of transfer.
Although simplifying
conventions are contemplated by the Internal Revenue Code and most publicly traded partnerships use similar simplifying conventions, the use of this method may not be permitted under existing Treasury Regulations as there is no direct or indirect
controlling authority on this issue. The Treasury Department has issued proposed Treasury Regulations that provide a safe harbor pursuant to which a publicly traded partnership may adopt similar monthly simplifying conventions to allocate tax items
among transferor and transferee unitholders, although such tax items must be prorated on a daily basis. Nonetheless, the proposed regulations do not specifically authorize the use of the proration method we have adopted. Existing publicly traded
partnerships are entitled to rely on these proposed Treasury Regulations; however, they are subject to change until final Treasury Regulations are issued. Accordingly, Baker & Hostetler LLP is unable to opine on the validity of this method
of allocating income and deductions between transferor and transferee unitholders because the issue has not been finally resolved by the IRS or the courts. If this method is not allowed under the Treasury Regulations, or only applies to transfers of
less than all of the unitholders interest, our taxable income or losses might be reallocated among the unitholders. We are authorized to revise our method of allocation between transferor and transferee unitholders, as well as unitholders
whose interests vary during a taxable year, to conform to a method permitted under future Treasury Regulations. A unitholder who owns Class A common units at any time during a quarter and who disposes of them prior to the record date set for a
cash distribution for that quarter will be allocated items of our income, gain, loss and deductions attributable to that quarter but will not be entitled to receive that cash distribution.
Notification requirements
A unitholder who sells any of the unitholders Class A common units is generally required to notify us in writing of that sale within
30 days after the sale (or, if earlier, January 15 of the year following the sale). A purchaser of Class A common units who purchases Class A common units from another unitholder is also
47
generally required to notify us in writing of that purchase within 30 days after the purchase. Upon receiving such notifications, we are required to notify the IRS of that transaction and to
furnish specified information to the transferor and transferee. Failure to notify us of a purchase may, in some cases, lead to the imposition of penalties. These reporting requirements do not apply to a sale by an individual who is a citizen of the
United States and who effects the sale or exchange through a broker who will satisfy these requirements.
Constructive termination
We will be considered to have technically terminated our partnership for federal income tax purposes if there is a sale or
exchange of 50% or more of the total interests in our capital and profits within a twelve-month period. For purposes of determining whether the 50% threshold has been met, multiple sales of the same interest will be counted only once. Our technical
termination would, among other things, result in the closing of our taxable year for all unitholders, which would result in us filing two tax returns (and our unitholders could receive two schedules K-1 if relief was not available, as described
below) for one fiscal year and could result in a deferral of depreciation deductions allowable in computing our taxable income. In the case of a unitholder reporting on a taxable year other than a fiscal year ending December 31, the closing of
our taxable year may also result in more than twelve months of our taxable income or loss being includable in the unitholders taxable income for the year of termination. Our termination currently would not affect our classification as a
partnership for federal income tax purposes, but instead we would be treated as a new partnership for federal income tax purposes. If treated as a new partnership, we must make new tax elections, including a new election under Section 754 of
the Internal Revenue Code, and could be subject to penalties if we are unable to determine that a termination occurred. Moreover, a termination might either accelerate the application of, or subject us to, any tax legislation enacted before the
termination that might not have otherwise applied to us as a continuing partnership. The IRS has a publicly traded partnership technical termination relief program whereby, if a publicly traded partnership that technically terminated requests
publicly traded partnership technical termination relief and such relief is granted by the IRS, among other things, the partnership may only have to provide one Schedule K-1 to unitholders for the year notwithstanding two partnership tax years.
Uniformity of Class A Common Units
Because we cannot match transferors and transferees of Class A common units, we must maintain uniformity of the economic and tax
characteristics of the Class A common units to a purchaser of these Class A common units. In the absence of uniformity, we may be unable to completely comply with a number of federal income tax requirements, both statutory and regulatory.
Any non-uniformity could have a negative impact on the value of the units. See Tax Consequences of Class A Common Unit OwnershipSection 754 Election.
Our partnership agreement permits our general partner to take positions in filing our tax returns that preserve the uniformity of our
Class A common units. These positions may include reducing the depreciation, amortization or loss deductions to which a unitholder would otherwise be entitled or reporting a slower amortization of Section 743(b) adjustments for some
unitholders than that to which they would otherwise be entitled. Baker & Hostetler LLP is unable to opine as to the validity of such filing positions.
A unitholders basis in Class A common units is reduced by its share of our deductions (whether or not such deductions were claimed
on an individual income tax return) so that any position that we take that understates deductions will overstate the unitholders basis in the unitholders Class A common units, and may cause the unitholder to understate gain or
overstate loss on any sale of such Class A common units. See Disposition of Class A Common UnitsRecognition of Gain or Loss and Tax Consequences of Class A Common Unit OwnershipSection 754
Election. The IRS may challenge one or more of any positions we take to preserve the uniformity of units. If such a challenge were sustained, the uniformity of units might be affected, and, under some circumstances, the gain from the sale of
units might be increased without the benefit of additional deductions.
48
Employee Benefit Plans, Tax-Exempt Organizations, Foreign Persons and Other Investors
Ownership of units by employee benefit plans, other tax-exempt organizations, non-resident aliens, foreign corporations and other foreign
persons raises issues unique to those investors and, as described below to a limited extent, may have substantially adverse tax consequences to them. If you are a tax-exempt entity or a non-U.S. person, you should consult your tax advisor before
investing in our Class A common units.
Employee benefit plans and most other organizations exempt from federal income tax, including
individual retirement accounts and other retirement plans, are subject to federal income tax on unrelated business taxable income. Virtually all of our income allocated to a unitholder that is a tax-exempt organization will be unrelated business
taxable income and will be taxable to it.
Non-resident aliens and foreign corporations, trusts or estates that own Class A common
units will be considered to be engaged in business in the United States because of the ownership of Class A common units. As a consequence, they will be required to file federal tax returns to report their share of our income, gain, loss or
deduction and pay federal income tax at regular rates on their share of our net income or gain. Moreover, under rules applicable to publicly traded partnerships, our quarterly distribution to foreign unitholders will be subject to withholding at
rates up to the highest applicable effective tax rate. Each foreign unitholder must obtain a taxpayer identification number from the IRS and submit that number to our transfer agent on a Form W-8BEN,
Form W-8BEN-E or applicable substitute form in order to obtain credit for these withholding taxes. A change in applicable law may require us to change these procedures.
In addition, because a foreign corporation that owns Class A common units will be treated as engaged in a U.S. trade or business, that
corporation may be subject to the U.S. branch profits tax at a rate of 30%, in addition to regular federal income tax, on its share of our earnings and profits, as adjusted for changes in the foreign corporations U.S. net equity,
that is effectively connected with the conduct of a U.S. trade or business. That tax may be reduced or eliminated by an income tax treaty between the United States and the country in which the foreign corporate unitholder is a qualified
resident. In addition, this type of unitholder is subject to special information reporting requirements under Section 6038C of the Internal Revenue Code.
A foreign unitholder who sells or otherwise disposes of a Class A common unit will be subject to U.S. federal income tax on gain
realized from the sale or disposition of that unit to the extent the gain is effectively connected with a U.S. trade or business of the foreign unitholder. Under a ruling published by the IRS, interpreting the scope of effectively connected
income, a foreign unitholder would be considered to be engaged in a trade or business in the United States by virtue of the U.S. activities of the partnership, and part or all of that unitholders gain would be effectively connected with
that unitholders indirect U.S. trade or business. Moreover, under the Foreign Investment in Real Property Tax Act, a foreign Class A common unitholder generally will be subject to U.S. federal income tax upon the sale or disposition of a
Class A common unit if (1) the foreign unitholder owned (directly or constructively applying certain attribution rules) more than 5% of our Class A common units at any time during the five-year period ending on the date of such
disposition and (2) 50% or more of the fair market value of all of our assets consisted of U.S. real property interests at any time during the shorter of the period during which such unitholder held the Class A common units or the
five-year period ending on the date of disposition. Currently, more than 50% of our assets consist of U.S. real property interests, and we do not expect that to change in the foreseeable future. Therefore, foreign unitholders may be subject to
federal income tax on gain from the sale or disposition of their Class A common units.
Administrative Matters
Information returns and audit procedures
We intend to furnish to each unitholder, within 90 days after the close of each calendar year, specific tax information, including a Schedule
K-1, which describes the unitholders share of our income, gain, loss and deduction for our preceding taxable year. In preparing this information, which will not be reviewed by counsel,
49
we will take various accounting and reporting positions, some of which have been mentioned earlier, to determine each unitholders share of income, gain, loss and deduction. We cannot assure
you that those positions will yield a result that conforms to the requirements of the Internal Revenue Code, Treasury Regulations or administrative interpretations of the IRS. Neither we nor Baker & Hostetler LLP can assure prospective
unitholders that the IRS will not successfully contend in court that those positions are impermissible. Any challenge by the IRS could negatively affect the value of the units.
The IRS may audit our federal income tax information returns. Adjustments resulting from an IRS audit may require each unitholder to adjust a
prior years tax liability, and possibly may result in an audit of the unitholders return. Any audit of a unitholders return could result in adjustments not related to our returns as well as those related to our returns.
Partnerships generally are treated as separate entities for purposes of federal tax audits, judicial review of administrative adjustments by
the IRS and tax settlement proceedings. The tax treatment of partnership items of income, gain, loss and deduction are determined in a partnership proceeding rather than in separate proceedings with the partners. The Internal Revenue Code requires
that one partner be designated as the Tax Matters Partner for these purposes. Our partnership agreement names our general partner as our Tax Matters Partner.
The Tax Matters Partner has made and will make some elections on our behalf and on behalf of unitholders. In addition, the Tax Matters Partner
can extend the statute of limitations for assessment of tax deficiencies against unitholders for items in our returns. The Tax Matters Partner may bind a unitholder with less than a 1% profits interest in us to a settlement with the IRS unless that
unitholder elects, by filing a statement with the IRS, not to give that authority to the Tax Matters Partner. The Tax Matters Partner may seek judicial review, by which all the unitholders are bound, of a final partnership administrative adjustment
and, if the Tax Matters Partner fails to seek judicial review, judicial review may be sought by any unitholder having at least a 1% interest in profits or by any group of unitholders having in the aggregate at least a 5% interest in profits.
However, only one action for judicial review will go forward, and each unitholder with an interest in the outcome may participate.
A
unitholder must file a statement with the IRS identifying the treatment of any item on the unitholders federal income tax return that is not consistent with the treatment of the item on our return. Intentional or negligent disregard of this
consistency requirement may subject a unitholder to substantial penalties.
FATCA withholding requirements
Under the Foreign Account Tax Compliance Act, or FATCA, withholding taxes may apply to certain types of payments made to foreign
financial institutions (as specially defined in the Internal Revenue Code) and certain other non-U.S. entities. Specifically, a 30% withholding tax may be imposed on interest, dividends and other fixed or determinable annual or periodical
gains, profits and income from sources within the United States, or FDAP Income, or gross proceeds from the sale or other disposition of any property of a type which can produce interest or dividends from sources within the United States, or Gross
Proceeds, paid to a foreign financial institution or to a non-financial foreign entity (as specially defined in the Internal Revenue Code), unless (1) the foreign financial institution undertakes certain diligence and reporting,
(2) the non-financial foreign entity either certifies it does not have any substantial U.S. owners or furnishes identifying information regarding each substantial U.S. owner or (3) the foreign financial institution or non-financial foreign
entity otherwise qualifies for an exemption from these rules. If the payee is a foreign financial institution and is subject to the diligence and reporting requirements in clause (1) above, it must enter into an agreement with the
U.S. Treasury requiring, among other things, that it undertake to identify accounts held by certain U.S. persons or U.S.-owned foreign entities, annually report certain information about such accounts, and withhold 30% on payments to
noncompliant foreign financial institutions and certain other account holders.
These rules generally will apply to payments of FDAP
Income made on or after July 1, 2014 and to payments of relevant Gross Proceeds made on or after January 1, 2017. Thus, to the extent we have FDAP
50
Income or Gross Proceeds after these dates that are not treated as effectively connected with a U.S. trade or business (see Employee Benefit Plans, Tax-Exempt Organizations, Foreign
Persons and Other Investors), unitholders who are foreign financial institutions or certain other non-U.S. entities may be subject to withholding on distributions they receive from us, or their distributive share of our income, pursuant to the
rules described above.
Prospective investors should consult their own tax advisors regarding the potential application of these
withholding provisions to their investment in our Class A common units.
Nominee reporting
Persons who hold an interest in us as a nominee for another person are required to furnish to us:
|
|
|
the name, address and taxpayer identification number of the beneficial owner and the nominee; |
|
|
|
whether the beneficial owner is: |
|
|
|
a person that is not a U.S. person; |
|
|
|
a foreign government, an international organization or any wholly owned agency or instrumentality of either of the foregoing; or |
|
|
|
the amount and description of Class A common units held, acquired or transferred for the beneficial owner; and |
|
|
|
specific information including the dates of acquisitions and transfers, means of acquisitions and transfers, and acquisition cost for purchases, as well as the amount of net proceeds from dispositions.
|
Brokers and financial institutions are required to furnish additional information, including whether they are U.S. persons
and specific information on units they acquire, hold or transfer for their own account. A penalty of $100 per failure, up to a maximum of $1,500,000 per calendar year, is imposed by the Internal Revenue Code for failure to report that information to
us. The nominee is required to supply the beneficial owner of the Class A common units with the information furnished to us.
Accuracy-related penalties
An additional tax equal to 20% of the amount of any portion of an underpayment of tax that is attributable to one or more specified causes,
including negligence or disregard of rules or regulations, substantial understatements of income tax and substantial valuation misstatements, is imposed by the Internal Revenue Code. No penalty will be imposed, however, for any portion of an
underpayment if it is shown that there was a reasonable cause for that portion and that the taxpayer acted in good faith regarding that portion.
A substantial understatement of income tax in any taxable year exists if the amount of the understatement exceeds:
|
|
|
for individuals, the greater of 10% of the tax required to be shown on the return for the taxable year and $5,000; or |
|
|
|
for most corporations, the lesser of 10% of the tax required to be shown of the return (or $10,000, if greater) and $10 million. |
For persons other than tax shelters (as defined under the penalty rules), the amount of any understatement subject to penalty generally is reduced
if any portion is attributable to a position adopted on the return:
|
|
|
for which there is, or was, substantial authority, or |
51
|
|
|
as to which there is a reasonable basis and the pertinent facts of that position are disclosed on the return. |
We believe we are not a tax shelter under these rules. If any item of income, gain, loss or deduction included in the distributive
shares of unitholders might result in that kind of an understatement of income for which no substantial authority exists, we must disclose the pertinent facts on our return. In addition, we will make a reasonable effort to
furnish sufficient information for unitholders to make adequate disclosure on their returns and to take other actions as may be appropriate to permit unitholders to avoid liability for this penalty.
A substantial valuation misstatement exists if (1) the value of any property, or the adjusted basis of any property, claimed on a tax
return is 150% or more of the amount determined to be the correct amount of the valuation or adjusted basis, (2) the price for any property or services (or for the use of property) claimed on any such return with respect to any transaction
between persons described in Internal Revenue Code Section 482 is 200% or more (or 50% or less) of the amount determined under Section 482 to be the correct amount of such price, or (3) the net Internal Revenue Code Section 482
transfer price adjustment for the taxable year exceeds the lesser of $5 million or 10% of the taxpayers gross receipts. No penalty is imposed unless the portion of the underpayment attributable to a substantial valuation misstatement exceeds
$5,000 ($10,000 for most corporations). If the valuation claimed on a return is 200% or more than the correct valuation or certain other thresholds are met, the penalty imposed increases to 40%. We do not anticipate making any valuation
misstatements.
In addition, the 20% accuracy-related penalty also applies to any portion of an underpayment of tax that is attributable
to transactions lacking economic substance. To the extent that such transactions are not disclosed, the penalty imposed is increased to 40%. Additionally, there is no reasonable cause defense to the imposition of this penalty to such transactions.
Reportable transactions
If we were to engage in a reportable transaction, we (and possibly you and others) would be required to make a detailed disclosure
of the transaction to the IRS. A transaction may be a reportable transaction based upon any of several factors, including the fact that it is a type of tax avoidance transaction publicly identified by the IRS as a listed transaction or
that it produces certain kinds of losses for partnerships, individuals, S corporations, and trusts in excess of $2 million in any single year, or $4 million in any combination of six successive tax years. Our participation in a reportable
transaction could increase the likelihood that our federal income tax information return (and possibly your tax return) would be audited by the IRS. See Administrative MattersInformation Returns and Audit Procedures.
Moreover, if we were to participate in a reportable transaction with a significant purpose to avoid or evade tax, or in any listed
transaction, you may be subject to the following additional consequences:
|
|
|
accuracy-related penalties with a broader scope, significantly narrower exceptions, and potentially greater amounts than described above at Administrative MattersAccuracy-Related Penalties;
|
|
|
|
for those persons otherwise entitled to deduct interest on federal tax deficiencies, nondeductibility of interest on any resulting tax liability; and |
|
|
|
in the case of a listed transaction, an extended statute of limitations. |
We do not expect to
engage in any reportable transactions.
Legislative Developments
The present federal income tax treatment of publicly traded partnerships, including us, or an investment in our Class A common units may
be modified by administrative, legislative or judicial interpretation at any time.
52
For example, from time to time, members of the U.S. Congress propose and consider substantive changes to the existing federal income tax laws that affect publicly traded partnerships. Any
modification to the federal income tax laws and interpretations thereof may or may not be retroactively applied and could make it more difficult or impossible to meet the exception for us to be treated as a partnership for federal income tax
purposes. See Partnership Status. We are unable to predict whether any such changes will ultimately be enacted. It is possible, however, that a change in law could affect us, and any such changes could negatively impact the value
of an investment in our Class A common units.
State, Local, Foreign and Other Tax Considerations
In addition to federal income taxes, you likely will be subject to other taxes, such as state, local and foreign income taxes, unincorporated
business taxes, and estate, inheritance or intangible taxes that may be imposed by the various jurisdictions in which we do business or own property or in which you are a resident. Although an analysis of those various taxes is not presented here,
each prospective unitholder should consider their potential impact on the prospective unitholders investment in us. We currently own property or do business in over 36 states. Most of these states impose an income tax on corporations and
other entities, and most of these states also impose a personal income tax on individuals. We may also own property or do business in other jurisdictions in the future. Although you may not be required to file a return and pay taxes in some
jurisdictions because your income from that jurisdiction falls below the filing and payment requirement, you may be required to file income tax returns and to pay income taxes in many of these jurisdictions in which we do business or own property
now or in the future and may be subject to penalties for failure to comply with those requirements. In some jurisdictions, tax losses may not produce a tax benefit in the year incurred and may not be available to offset income in subsequent taxable
years. Some of the jurisdictions may require us, or we may elect, to withhold a percentage of income from amounts to be distributed to a unitholder who is not a resident of the jurisdiction. Withholding, the amount of which may be greater or less
than a particular unitholders income tax liability to the jurisdiction, generally does not relieve a nonresident unitholder from the obligation to file an income tax return. Amounts withheld will be treated as if distributed to unitholders for
purposes of determining the amounts distributed by us. See Tax Consequences of Class A Common Unit OwnershipEntity-Level Collections. Based on current law and our estimate of our future operations, our general partner
anticipates that any amounts required to be withheld will not be material.
It is the responsibility of each unitholder to investigate the
legal and tax consequences, under the laws of pertinent states, localities and foreign jurisdictions, of the unitholders investment in us. Accordingly, each prospective unitholder is urged to consult a tax counsel or other advisor with regard
to those matters. Further, it is the responsibility of each unitholder to file all state, local and foreign, as well as U.S. federal tax returns that may be required of the unitholder. Baker & Hostetler LLP has not rendered an opinion on
the state, local or foreign tax consequences of an investment in us.
Debt Securities
A description of the material federal income tax consequences of the acquisition, ownership and disposition of debt securities will be set
forth in the prospectus supplement relating to the offering of debt securities.
THE PRECEDING SUMMARY OF VARIOUS U.S. FEDERAL INCOME TAX CONSEQUENCES
RELATED TO THE PURCHASE, OWNERSHIP AND DISPOSITION OF CLASS A COMMON UNITS IS SOLELY FOR GENERAL INFORMATION ONLY, AND IS NOT INTENDED TO BE, AND SHOULD NOT BE CONSTRUED TO BE, LEGAL OR TAX ADVICE. THIS SUMMARY DOES NOT ADDRESS ALL THE TAX
CONSEQUENCES THAT MAY BE IMPORTANT TO A PARTICULAR HOLDER IN LIGHT OF THE HOLDERS INVOLVEMENT WITH THE ISSUER OR OTHER CIRCUMSTANCES. ACCORDINGLY, PROSPECTIVE PURCHASERS SHOULD CONSULT THEIR OWN TAX ADVISORS ON THE U.S. FEDERAL, STATE AND
LOCAL AND FOREIGN TAX CONSEQUENCES OF THEIR PURCHASE, OWNERSHIP AND DISPOSITION OF THE CLASS A COMMON UNITS, AND ON THE CONSEQUENCES OF ANY CHANGES IN APPLICABLE LAW.
53
LEGAL MATTERS
The validity of the securities offered pursuant to this prospectus may be passed upon for us by Baker & Hostetler LLP and for any
underwriters or agents by counsel named in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended
December 31, 2013 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
54
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. |
Other Expenses of Issuance and Distribution |
The following table sets forth the
estimated expenses (other than underwriting discounts and commissions) to be incurred by Midcoast Partners in connection with the securities being registered under this registration statement. Midcoast Partners has agreed to bear the expenses of the
registration of the securities.
|
|
|
|
|
SEC registration fee |
|
$ |
174,300 |
|
Accounting fees and expenses |
|
$ |
30,000 |
|
Legal fees and expenses |
|
$ |
75,000 |
|
Printing expenses |
|
$ |
10,000 |
|
Miscellaneous fees and expenses |
|
$ |
7,000 |
|
|
|
|
|
|
Total |
|
$ |
296,300 |
|
|
|
|
|
|
Item 15. |
Indemnification of Directors and Officers |
Section 17-108 of the Delaware Revised
Uniform Limited Partnership Act provides that, subject to such standards and restrictions, if any, as are set forth in its limited partnership agreement, a Delaware limited partnership may, and shall have the power to, indemnify and hold harmless
any partner or other person from and against all claims and demands whatsoever. The partnership agreement of Midcoast Partners provides that Midcoast Partners will indemnify (to the fullest extent permitted by applicable law) the following certain
persons (each, an Indemnitee) from and against all losses, claims, damages or similar events: our general partner; any departing general partner; any person who is or was an affiliate of our general partner or any departing general
partner; any person who is or was a director, officer, managing member, manager, general partner, fiduciary or trustee of us or our subsidiaries, an affiliate of us or our subsidiaries or any aforementioned entity; any person who is or was serving
as director, officer, managing member, manager, general partner, fiduciary or trustee of another person owing a fiduciary duty to us or any of our subsidiaries at the request of our general partner or any departing general partner or any of their
affiliates, excluding any such person providing, on a fee-for-service basis, trustee, fiduciary of custodial services; and any person designated by our general partner because such persons status, service or relationship expose such person to
potential claims or suits relating to our or our subsidiaries business and affairs. This indemnity is available only if the Indemnitee acted in good faith, in a manner in which such Indemnitee believed to be in, or not opposed to, the best
interests of Midcoast Partners and, with respect to any criminal proceeding, had no reasonable cause to believe its conduct was unlawful. Midcoast Partners will, to the extent commercially reasonable, purchase and maintain insurance on behalf of the
Indemnitees, whether or not Midcoast Partners would have the power to indemnify such Indemnitees against liability under the partnership agreement.
Reference is made to the Index to Exhibits following the signature page, which
Index is hereby incorporated into this item.
The undersigned registrant hereby undertakes:
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
II-1
(ii) To reflect in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the effective registration statement; and
(iii) To include any material information
with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (i), (ii) and (iii) do not apply if the registration statement is on Form S-3 or Form F-3, and the
information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934, as amended, that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
That, for the purpose of determining liability under the Securities Act of 1933, as amended, to any
purchaser:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus
required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by Section 10(a) of the Securities Act of 1933, as amended, shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
That, for
the purpose of determining liability of the registrant under the Securities Act of 1933, as amended, to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless of the
II-2
underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned
registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information
about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other
communication that is an offer in the offering made by the undersigned registrant to the purchaser.
That, for purposes of determining any
liability under the Securities Act of 1933, as amended, each filing of the registrants annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, (and, where applicable, each filing of an employee
benefit plans annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934, as amended), that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933, as
amended, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933, as amended, and will be governed by the final
adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
MIDCOAST ENERGY PARTNERS, L.P. |
|
By: MIDCOAST HOLDINGS, L.L.C., its general partner |
|
|
By: |
|
/s/ C. Gregory Harper |
|
|
C. Gregory Harper
Principal Executive Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title
(of Midcoast Holdings, L.L.C.) |
|
Date |
|
|
|
/s/ C. Gregory Harper
C. Gregory Harper |
|
Principal Executive Officer and Director |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial Officer) |
|
December 8, 2014 |
|
|
|
/s/ Noor S. Kaissi
Noor S. Kaissi |
|
Controller (Principal Accounting
Officer) |
|
December 8, 2014 |
|
|
|
/s/ Dan A. Westbrook
Dan A. Westbrook |
|
Director |
|
December 8, 2014 |
|
|
|
/s/ John A. Crum
John A. Crum |
|
Director |
|
December 8, 2014 |
II-4
|
|
|
|
|
Signature |
|
Title
(of Midcoast Holdings, L.L.C.) |
|
Date |
|
|
|
/s/ J. Herbert England
J. Herbert England |
|
Director |
|
December 8, 2014 |
|
|
|
/s/ James G. Ivey
James G. Ivey |
|
Director |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President and Director |
|
December 8, 2014 |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer and Director |
|
December 8, 2014 |
|
|
|
/s/ Edmund P. Segner III
Edmund P. Segner III |
|
Director |
|
December 8, 2014 |
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
ELTM, L.P. |
|
By: Enbridge Holdings (Texas Systems) L.L.C., its general partner |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title
(of Enbridge Holdings (Texas Systems) L.L.C.) |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P., as sole member of Enbridge Holdings (Texas Systems) L.L.C. |
|
December 8, 2014 |
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Enbridge Energy Marketing, L.L.C. |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice President & Chief Financial Officer
(Principal Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P., as sole member of Enbridge Energy Marketing, L.L.C. |
|
December 8, 2014 |
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Enbridge G & P (East Texas) L.P. |
|
By: Enbridge Holdings (Texas Systems) L.L.C., its general partner |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title
(of Enbridge Holdings (Texas Systems) L.L.C.) |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P., as sole member of Enbridge Holdings (Texas Systems) L.L.C. |
|
December 8, 2014 |
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Enbridge G & P (North Texas) L.P. |
|
By: Enbridge Holdings (Texas Systems) L.L.C., its general partner |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title
(of Enbridge Holdings (Texas Systems) L.L.C.) |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P., as sole member of Enbridge Holdings (Texas Systems) L.L.C. |
|
December 8, 2014 |
II-9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Enbridge G & P (Oklahoma) L.P. |
|
By: Enbridge Holdings (Texas Systems) L.L.C., its general partner |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title
(of Enbridge Holdings (Texas Systems) L.L.C.) |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P., as sole member of Enbridge Holdings (Texas Systems) L.L.C. |
|
December 8, 2014 |
II-10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Enbridge Gathering (North Texas) L.P. |
|
By: Enbridge Holdings (Texas Systems) L.L.C., its general partner |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title
(of Enbridge Holdings (Texas Systems) L.L.C.) |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P., as sole member of Enbridge Holdings (Texas Systems) L.L.C. |
|
December 8, 2014 |
II-11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Enbridge Holdings (Texas Systems) L.L.C. |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P., as sole member of Enbridge Holdings (Texas Systems) L.L.C. |
|
December 8, 2014 |
II-12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Enbridge Liquids Marketing (North Texas) L.P. |
|
By: Enbridge Holdings (Texas Systems) L.L.C., its general partner |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title
(of Enbridge Holdings (Texas Systems) L.L.C.) |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P., as sole member of Enbridge Holdings (Texas Systems) L.L.C. |
|
December 8, 2014 |
II-13
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Enbridge Marketing (North Texas) L.P. |
|
By: Enbridge Holdings (Texas Systems) L.L.C., its general partner |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title
(of Enbridge Holdings (Texas Systems) L.L.C.) |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P., as sole member of Enbridge Holdings (Texas Systems) L.L.C. |
|
December 8, 2014 |
II-14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Enbridge Marketing (U.S.) L.L.C. |
|
|
By: |
|
/s/ Janet Coy |
|
|
Janet Coy
President |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
|
/s/ Janet Coy
Janet Coy |
|
President (Principal Executive
Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Treasurer & Chief Financial Officer
(Principal Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P., as sole member of Enbridge Holdings (Texas Systems) L.L.C., sole member of Enbridge Marketing (U.S.) L.L.C. |
|
December 8, 2014 |
II-15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Enbridge Marketing (U.S.) L.P. |
|
By: Enbridge Marketing (U.S.) L.L.C., its general partner |
|
|
By: |
|
/s/ Janet Coy |
|
|
Janet Coy
President |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title
(of Enbridge Marketing (U.S.) L.L.C.) |
|
Date |
|
|
|
/s/ Janet Coy
Janet Coy |
|
President (Principal Executive
Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Treasurer & Chief Financial Officer
(Principal Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P., as sole member of Enbridge Holdings (Texas Systems) L.L.C., sole member of Enbridge Marketing (U.S.) L.L.C. |
|
December 8, 2014 |
II-16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Enbridge Partners Risk Management, L.P. |
|
By: Enbridge Holdings (Texas Systems) L.L.C., its general partner |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title
(of Enbridge Holdings (Texas Systems) L.L.C.) |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P., as sole member of Enbridge Holdings (Texas Systems) L.L.C. |
|
December 8, 2014 |
II-17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Enbridge Pipelines (East Texas) L.P. |
|
By: Enbridge Holdings (Texas Systems) L.L.C., its general partner |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title
(of Enbridge Holdings (Texas Systems) L.L.C.) |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P., as sole member of Enbridge Holdings (Texas Systems) L.L.C. |
|
December 8, 2014 |
II-18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Enbridge Pipelines (Louisiana Liquids) L.L.C. |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P., as sole member of Enbridge Pipelines (Louisiana Liquids) L.L.C. |
|
December 8, 2014 |
II-19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Enbridge Pipelines (North Texas) L.P. |
|
By: Enbridge Holdings (Texas Systems) L.L.C., its general partner |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title
(of Enbridge Holdings (Texas Systems) L.L.C.) |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P., as sole member of Enbridge Holdings (Texas Systems) L.L.C. |
|
December 8, 2014 |
II-20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Enbridge Pipelines (Oklahoma Transmission) L.L.C. |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer of Enbridge Holdings (Texas Systems) L.L.C., as general partner of Enbridge G & P (Oklahoma) L.P., as sole member of Enbridge Pipelines (Oklahoma Transmission) L.L.C. |
|
December 8, 2014 |
II-21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Enbridge Pipelines (Texas Gathering) L.P. |
|
By: Enbridge Holdings (Texas Systems) L.L.C., its general partner |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title
(of Enbridge Holdings (Texas Systems) L.L.C.) |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P., as sole member of Enbridge Holdings (Texas Systems) L.L.C. |
|
December 8, 2014 |
II-22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Enbridge Pipelines (Texas Intrastate) L.P. |
|
By: Enbridge Holdings (Texas Systems) L.L.C., its general partner |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title
(of Enbridge Holdings (Texas Systems) L.L.C.) |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P., as sole member of Enbridge Holdings (Texas Systems) L.L.C. |
|
December 8, 2014 |
II-23
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Enbridge Pipelines (Texas Liquids) L.P. |
|
By: Enbridge Holdings (Texas Systems) L.L.C., its general partner |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title
(of Enbridge Holdings (Texas Systems) L.L.C.) |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P., as sole member of Enbridge Holdings (Texas Systems) L.L.C. |
|
December 8, 2014 |
II-24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Midcoast Operating, L.P. |
|
By: Midcoast OLP GP, L.L.C., its general partner |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title
(of Midcoast OLP GP, L.L.C.) |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast Holdings, L.L.C., as general partner of Midcoast Energy Partners, L.P. as sole member of Midcoast OLP GP, L.L.C., as general partner of Midcoast Operating, L.P. |
|
December 8, 2014 |
II-25
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on December 8,
2014.
|
|
|
Midcoast OLP GP, L.L.C. |
|
|
By: |
|
/s/ Terrance L. McGill |
|
|
Terrance L. McGill President and Chief
Commercial Officer |
POWER OF ATTORNEY
Each person whose signature appears below appoints C. Gregory Harper and E. Chris Kaitson, and each of them, any of whom may act without the
joinder of the other, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
|
/s/ Terrance L. McGill
Terrance L. McGill |
|
President and Chief Commercial Officer
(Principal Executive Officer) |
|
December 8, 2014 |
|
|
|
/s/ Stephen J. Neyland
Stephen J. Neyland |
|
Vice PresidentFinance (Principal
Financial and Accounting Officer) |
|
December 8, 2014 |
|
|
|
/s/ Mark A. Maki
Mark A. Maki |
|
Senior Vice President of Midcoast Holdings, L.L.C., general partner of Midcoast Energy Partners, L.P., as sole member of Midcoast OLP GP, L.L.C. |
|
December 8, 2014 |
II-26
INDEX TO EXHIBITS
|
|
|
Exhibit
Number |
|
Description |
|
|
4.1 |
|
Certificate of Limited Partnership of Midcoast Energy Partners, L.P., dated May 30, 2013 (incorporated by reference to Exhibit 3.1 of our Registration Statement on Form S-1 (Registration No. 333-189341), initially filed on June 14,
2013, as amended). |
|
|
4.2 |
|
First Amended and Restated Agreement of Limited Partnership of Midcoast Energy Partners, L.P. dated November 13, 2013 (incorporated by reference to Exhibit 3.1 of our Current Report on
Form 8-K, filed on November 18, 2013). |
|
|
4.3 |
|
Specimen Unit Certificate for the Class A Common Units (included as Exhibit A to the Form of First Amended and Restated Agreement of Limited Partnership of the Registrant) (incorporated herein by reference to Appendix A of the First
Amended and Restated Agreement of Limited Partnership of Midcoast Energy Partners, L.P. under Exhibit 3.1 of our Current Report on Form 8-K, filed on November 18, 2013). |
|
|
4.4** |
|
Form of Senior Indenture between Midcoast Energy Partners, L.P. and U.S. Bank National Association, as trustee. |
|
|
4.5** |
|
Form of Subordinated Indenture between Midcoast Energy Partners, L.P. and U.S. Bank National Association, as trustee. |
|
|
5.1** |
|
Opinion of Baker & Hostetler LLP. |
|
|
8.1** |
|
Opinion of Baker & Hostetler LLP regarding tax matters. |
|
|
12.1** |
|
Statement Regarding Computation of Ratios of Earnings to Fixed Charges. |
|
|
23.1** |
|
Consent of PricewaterhouseCoopers LLP. |
|
|
23.2** |
|
Consent of Baker & Hostetler LLP (included in Exhibits 5.1 and 8.1). |
|
|
24.1** |
|
Powers of Attorney (included on the signature pages of this Registration Statement). |
|
|
25.1** |
|
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, relating to the Form of Senior Indenture and Form of Subordinated Indenture. |
E-1
Exhibit 4.4
INDENTURE
DATED AS OF
, 20
BETWEEN
MIDCOAST ENERGY
PARTNERS, L.P.
as Issuer,
AND
U.S. BANK NATIONAL
ASSOCIATION
as Trustee
Providing for
Issuance of
Debt Securities
in Series
TABLE OF CONTENTS
|
|
|
|
|
|
|
RECITALS |
|
|
1 |
|
|
|
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
|
|
1 |
|
|
|
|
Section 1.01. |
|
Definitions |
|
|
1 |
|
Section 1.02. |
|
Compliance Certificates and Opinions |
|
|
6 |
|
Section 1.03. |
|
Form of Documents Delivered to Trustee |
|
|
6 |
|
Section 1.04. |
|
Acts of Holders; Record Dates |
|
|
7 |
|
Section 1.05. |
|
Notices, Etc., to Trustee and Company |
|
|
8 |
|
Section 1.06. |
|
Notice to Holders; Waiver |
|
|
9 |
|
Section 1.07. |
|
Conflict with Trust Indenture Act |
|
|
9 |
|
Section 1.08. |
|
Effect of Headings and Table of Contents |
|
|
9 |
|
Section 1.09. |
|
Successors and Assigns |
|
|
9 |
|
Section 1.10. |
|
Separability Clause |
|
|
9 |
|
Section 1.11. |
|
Benefits of Indenture |
|
|
9 |
|
Section 1.12. |
|
Governing Law |
|
|
9 |
|
Section 1.13. |
|
Legal Holidays |
|
|
10 |
|
Section 1.14. |
|
Incorporators, Shareholders, Directors, Officers and Employees of the Company Exempt from Individual Liability |
|
|
10 |
|
|
|
ARTICLE II SECURITY FORM |
|
|
10 |
|
|
|
|
Section 2.01. |
|
Forms Generally |
|
|
10 |
|
Section 2.02. |
|
Form of Face of Security |
|
|
10 |
|
Section 2.03. |
|
Form of Reverse of Security |
|
|
12 |
|
Section 2.04. |
|
Form of Legend for Global Securities |
|
|
16 |
|
Section 2.05. |
|
Form of Trustees Certificate of Authentication |
|
|
16 |
|
|
|
ARTICLE III THE SECURITIES |
|
|
17 |
|
|
|
|
Section 3.01. |
|
Amount Unlimited; Issuable in Series |
|
|
17 |
|
Section 3.02. |
|
Denominations |
|
|
19 |
|
Section 3.03. |
|
Execution, Authentication, Delivery and Dating |
|
|
20 |
|
Section 3.04. |
|
Temporary Securities |
|
|
21 |
|
Section 3.05. |
|
Registration; Registration of Transfer and Exchange |
|
|
21 |
|
Section 3.06. |
|
Mutilated, Destroyed, Lost and Stolen Securities |
|
|
23 |
|
Section 3.07. |
|
Payment of Interest; Interest Rights Preserved |
|
|
23 |
|
Section 3.08. |
|
Persons Deemed Owners |
|
|
24 |
|
Section 3.09. |
|
Cancellation |
|
|
24 |
|
Section 3.10. |
|
Computation of Interest |
|
|
25 |
|
Section 3.11. |
|
CUSIP Numbers |
|
|
25 |
|
|
|
ARTICLE IV SATISFACTION AND DISCHARGE |
|
|
25 |
|
|
|
|
Section 4.01. |
|
Satisfaction and Discharge of Indenture |
|
|
25 |
|
Section 4.02. |
|
Application of Trust Money |
|
|
26 |
|
ii
|
|
|
|
|
|
|
|
|
ARTICLE V REMEDIES |
|
|
26 |
|
|
|
|
Section 5.01. |
|
Events of Default |
|
|
26 |
|
Section 5.02. |
|
Acceleration of Maturity; Rescission and Annulment |
|
|
27 |
|
Section 5.03. |
|
Collection of Indebtedness and Suits for Enforcement by Trustee |
|
|
28 |
|
Section 5.04. |
|
Trustee May File Proofs of Claim |
|
|
29 |
|
Section 5.05. |
|
Trustee May Enforce Claims Without Possession of Securities |
|
|
29 |
|
Section 5.06. |
|
Application of Money Collected |
|
|
29 |
|
Section 5.07. |
|
Limitation on Suits |
|
|
29 |
|
Section 5.08. |
|
Unconditional Right of Holders to Receive Principal Premium and Interest |
|
|
30 |
|
Section 5.09. |
|
Restoration of Rights and Remedies |
|
|
30 |
|
Section 5.10. |
|
Rights and Remedies Cumulative |
|
|
30 |
|
Section 5.11. |
|
Delay or Omission Not Waiver |
|
|
30 |
|
Section 5.12. |
|
Control by Holders |
|
|
31 |
|
Section 5.13. |
|
Waiver of Past Defaults |
|
|
31 |
|
Section 5.14. |
|
Undertaking for Costs |
|
|
31 |
|
Section 5.15. |
|
Waiver of Usury, Stay or Extension Laws |
|
|
31 |
|
|
|
ARTICLE VI THE TRUSTEE |
|
|
32 |
|
|
|
|
Section 6.01. |
|
Certain Duties and Responsibilities |
|
|
32 |
|
Section 6.02. |
|
Notice of Defaults |
|
|
32 |
|
Section 6.03. |
|
Certain Rights of Trustee |
|
|
33 |
|
Section 6.04. |
|
Not Responsible for Recitals or Issuance of Securities |
|
|
34 |
|
Section 6.05. |
|
May Hold Securities |
|
|
34 |
|
Section 6.06. |
|
Money Held in Trust |
|
|
34 |
|
Section 6.07. |
|
Compensation and Reimbursement |
|
|
34 |
|
Section 6.08. |
|
Conflicting Interests |
|
|
35 |
|
Section 6.09. |
|
Corporate Trustee Required, Eligibility |
|
|
35 |
|
Section 6.10. |
|
Resignation and Removal, Appointment of Successor |
|
|
35 |
|
Section 6.11. |
|
Acceptance of Appointment by Successor |
|
|
36 |
|
Section 6.12. |
|
Merger, Conversion, Consolidation or Succession to Business |
|
|
37 |
|
Section 6.13. |
|
Preferential Collection of Claims Against Company |
|
|
37 |
|
Section 6.14. |
|
Appointment of Authenticating Agent |
|
|
37 |
|
|
|
ARTICLE VII HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY |
|
|
38 |
|
|
|
|
Section 7.01. |
|
Company to Furnish Trustee Names and Addresses of Holders |
|
|
38 |
|
Section 7.02. |
|
Preservation of Information; Communications to Holders |
|
|
39 |
|
Section 7.03. |
|
Reports by Trustee |
|
|
39 |
|
Section 7.04. |
|
Reports by Company |
|
|
39 |
|
|
|
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
|
|
39 |
|
|
|
|
Section 8.01. |
|
Company May Consolidate, Etc., Only on Certain Terms |
|
|
39 |
|
Section 8.02. |
|
Successor Substituted |
|
|
40 |
|
iii
|
|
|
|
|
|
|
|
|
ARTICLE IX SUPPLEMENTAL INDENTURES |
|
|
40 |
|
|
|
|
Section 9.01. |
|
Supplemental Indentures Without Consent of Holders |
|
|
40 |
|
Section 9.02. |
|
Supplemental Indentures with Consent of Holders |
|
|
41 |
|
Section 9.03. |
|
Execution of Supplemental Indentures |
|
|
42 |
|
Section 9.04. |
|
Effect of Supplemental Indentures |
|
|
42 |
|
Section 9.05. |
|
Conformity with Trust Indenture Act |
|
|
42 |
|
Section 9.06. |
|
Reference in Securities to Supplemental Indentures |
|
|
42 |
|
|
|
ARTICLE X Covenants |
|
|
43 |
|
|
|
|
Section 10.01. |
|
Payment of Principal, Premium and Interest |
|
|
43 |
|
Section 10.02. |
|
Maintenance of Office or Agency |
|
|
43 |
|
Section 10.03. |
|
Money for Securities Payments to Be Held in Trust |
|
|
43 |
|
Section 10.04. |
|
Statement by Officers as to Default |
|
|
44 |
|
Section 10.05. |
|
Existence |
|
|
44 |
|
Section 10.06. |
|
Waiver of Certain Covenants |
|
|
44 |
|
|
|
ARTICLE XI REDEMPTION OF SECURITIES |
|
|
45 |
|
|
|
|
Section 11.01. |
|
Applicability of Article |
|
|
45 |
|
Section 11.02. |
|
Election to Redeem; Notice to Trustee |
|
|
45 |
|
Section 11.03. |
|
Selection by Trustee of Securities to Be Redeemed |
|
|
45 |
|
Section 11.04. |
|
Notice of Redemption |
|
|
46 |
|
Section 11.05. |
|
Deposit of Redemption Price |
|
|
46 |
|
Section 11.06. |
|
Securities Payable on Redemption Date |
|
|
46 |
|
Section 11.07. |
|
Securities Redeemed in Part |
|
|
47 |
|
|
|
ARTICLE XII SINKING FUNDS |
|
|
47 |
|
|
|
|
Section 12.01. |
|
Applicability of Article |
|
|
47 |
|
Section 12.02. |
|
Satisfaction of Sinking Fund Payments with Securities |
|
|
47 |
|
Section 12.03. |
|
Redemption of Securities for Sinking Fund |
|
|
47 |
|
|
|
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE |
|
|
48 |
|
|
|
|
Section 13.01. |
|
Companys Option to Effect Defeasance or Covenant Defeasance |
|
|
48 |
|
Section 13.02. |
|
Defeasance and Discharge |
|
|
48 |
|
Section 13.03. |
|
Covenant Defeasance |
|
|
48 |
|
Section 13.04. |
|
Conditions to Defeasance or Covenant Defeasance |
|
|
48 |
|
Section 13.05. |
|
Deposited Money and U.S. Government obligations to Be Held in Trust; Miscellaneous Provisions |
|
|
50 |
|
Section 13.06. |
|
Reinstatement |
|
|
50 |
|
Note: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.
iv
MIDCOAST ENERGY PARTNERS, L.P.
Certain Sections of this Indenture relating to Sections 310 318, inclusive,
of the Trust Indenture Act of 1939, as amended
|
|
|
|
|
Trust Indenture Act Section |
|
Indenture Section |
|
310(a)(1) |
|
|
6.09 |
|
(a)(2) |
|
|
6.09 |
|
(a)(3) |
|
|
N.A. |
|
(a)(4) |
|
|
N.A. |
|
(a)(5) |
|
|
6.09 |
|
(b) |
|
|
6.08, 6.10 |
|
(c) |
|
|
N.A. |
|
311(a) |
|
|
6.13 |
|
(b) |
|
|
6.13 |
|
(c) |
|
|
N.A. |
|
312(a) |
|
|
7.01, 7.02 |
|
(b) |
|
|
7.02 |
|
(c) |
|
|
7.02 |
|
313(a) |
|
|
7.03 |
|
(b)(1) |
|
|
N.A. |
|
(b)(2) |
|
|
7.03 |
|
(c) |
|
|
7.03 |
|
(d) |
|
|
7.03 |
|
314(a) |
|
|
7.04 |
|
(a)(4) |
|
|
1.04, 10.04 |
|
(b) |
|
|
N.A. |
|
(c)(1) |
|
|
1.02 |
|
(c)(2) |
|
|
1.02 |
|
(c)(3) |
|
|
N.A. |
|
(d) |
|
|
N.A. |
|
(e) |
|
|
1.02 |
|
(f) |
|
|
N.A. |
|
315(a) |
|
|
6.01 |
|
(b) |
|
|
6.02 |
|
(c) |
|
|
6.01 |
|
(d) |
|
|
6.01 |
|
(e) |
|
|
5.14 |
|
316(a)(last sentence) |
|
|
1.06 |
|
(a)(1)(A) |
|
|
5.02, 5.12 |
|
(a)(1)(B) |
|
|
5.13 |
|
(a)(2) |
|
|
N.A. |
|
(b) |
|
|
5.08 |
|
(c) |
|
|
1.04 |
|
317(a)(1) |
|
|
5.03 |
|
(a)(2) |
|
|
5.04 |
|
v
|
|
|
|
|
(b) |
|
|
10.03 |
|
318(a) |
|
|
1.07 |
|
(b) |
|
|
N.A. |
|
(c) |
|
|
1.07 |
|
* |
N.A. means inapplicable. |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
vi
INDENTURE
THIS INDENTURE, dated as of , 20 , between Midcoast Energy Partners, L.P., a Delaware limited partnership (herein
called the Company), having its corporate office at 1100 Louisiana, Suite 3300, Houston, Texas 77002, and U.S. Bank National Association, as trustee (herein called the Trustee).
RECITALS
The Company has
duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Companys debentures, notes or other evidences of indebtedness (herein called the Securities), to be issued in one or
more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the Company in accordance
with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE I. DEFINITIONS AND OTHER
PROVISIONS OF GENERAL
APPLICATION
Section 1.01 Definitions.
For all
purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
|
(a) |
the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; |
|
(b) |
all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; |
|
(c) |
all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States of America (including, if applicable, International
Financial Reporting Standards) as in effect from time to time; |
|
(d) |
unless the context otherwise requires, any reference to an Article or a Section refers to an Article or a Section, as the case may be, of this Indenture; |
|
(e) |
the words herein, hereof and hereunder and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and
|
|
(f) |
or is not exclusive, and including means including without limitation, including but not limited to or words of similar import. |
Act, when used with respect to any Holder, has the meaning specified in Section 1.04.
Affiliate of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this definition, control when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise; and the terms controlling and controlled have meanings correlative to the foregoing.
1
Applicable Procedures of a Depositary means, with respect to any matter at any time,
the policies and procedures of such Depositary, if any, that are applicable to such matter at such time.
Authenticating Agent
means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.
Board of Directors means either the board of directors of Midcoast Holdings, L.L.C., the general partner of the Company or any
duly authorized committee of that board.
Board Resolution means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the general partner of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification and delivered to the Trustee.
Business Day, when used with respect to any Place of Payment or other location, means, except as otherwise provided or
contemplated by Section 3.01 with respect to any series of Securities, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in either (a) that Place of Payment or (b) in Houston, Texas
are authorized or obligated by law or executive order or regulation to close.
Commission means the Securities and Exchange
Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
Company means the Person named as the Company in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter Company shall mean such successor Person.
Company Request or Company Order means a written request or order signed in the name of the Company by the President,
a Vice President, the Treasurer, an Assistant Treasurer, a Secretary or an Assistant Secretary of the general partner of the Company, or any other officer or officers of the general partner of the Company designated in writing by or pursuant to
authority of the Board of Directors, and delivered to the Trustee.
Corporate Trust Office means the designated office of the
Trustee at which at any particular time its corporate trust business shall be administered. As of the date hereof, the Corporate Trust Office of the initial Trustee shall be 1349 West Peachtree Street, N.W., Suite 1050, Atlanta, Georgia 30309,
Attention: Global Corporate Trust Services); provided, however, for all purposes for which a Corporate Trust Office of the initial Trustee, in any of its capacities, in New York, New York is herein referred, Corporate Trust
Office shall mean the initial Trustees office at 100 Wall Street, 16th Floor, New York, New York 10015, Attention: Global Corporate Trust Services.
corporation means a corporation, association, limited liability company, company, joint-stock company or business trust.
Covenant Defeasance has the meaning specified in Section 13.03.
Defaulted Interest has the meaning specified in Section 3.07.
Defeasance has the meaning specified in Section 13.02.
Depositary means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global
Securities, a clearing agency that is designated to act as Depositary for such Securities as contemplated by Section 3.01.
2
Event of Default has the meaning specified in Section 5.01.
Exchange Act means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to
time.
Expiration Date has the meaning specified in Section 1.04.
Global Security means a Security that evidences all or part of the Securities of any series and bears the legend set forth in
Section 2.04 (or such legend as may be specified as contemplated by Section 3.01 for such Securities).
Holder means
a Person in whose name a Security is registered in the Security Register.
Indenture means this instrument as originally
executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term Indenture shall also include the terms of particular series of
Securities established as contemplated by Section 3.01.
interest, when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
Interest Payment Date,
when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
Investment
Company Act means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.
mandatory sinking fund payment has the meaning specified in Section 12.01.
Maturity, when used with respect to any Security, means the date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
Notice of Default means a written notice of the kind specified in Section 5.01(d).
Officers Certificate means a certificate signed by the President or a Vice President of the general partner of the Company
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the general partner of Company or any other officer or officers of the general partner of the Company designated in writing by or pursuant to authority of the
Board of Directors and delivered to the Trustee. The Officers Certificate given pursuant to Section 10.04 shall be signed by the principal executive, financial or accounting officer of the Company.
Opinion of Counsel means a written opinion of counsel, who may be an employee of, or outside counsel to, but does not have to be
counsel for, the Company, and who shall be acceptable to the Trustee, which acceptance shall not be unreasonably withheld.
optional
sinking fund payment has the meaning specified in Section 12.01.
Original Issue Discount Security means any
Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
3
Outstanding, when used with respect to Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under this Indenture, except:
|
(1) |
Securities theretofore cancelled and delivered to the Trustee or delivered to the Trustee for cancellation; |
|
(2) |
Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor has
been made; |
|
(3) |
Securities, except to the extent provided in Sections 13.02 and 13.03 respectively, as to which the Company has effected Defeasance pursuant to Section 13.02 or Covenant Defeasance pursuant to Section 13.03;
and |
|
(4) |
Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; |
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 5.02, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is
not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 3.01, (C) the principal amount of a Security denominated in one or
more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 3.01, of the principal amount of such Security
(or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or
other action, only Securities which the Trustee knows to be so owned shall be so disregarded. The Trustee shall be protected in relying on an Officers Certificate or other evidence satisfactory to it in determining ownership. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgees right so to act with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
Paying Agent means any Person
authorized by the Company to pay the principal of or any premium or interest on any Securities on behalf of the Company.
Person means any individual, corporation, company (including a limited liability company), partnership (including a limited
partnership), joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.
Place
of Payment, when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities that series are payable as specified or contemplated by Section 3.01.
4
Predecessor Security of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
Redemption Date, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
Redemption Price, when used with respect to any Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
Regular Record Date for the interest payable on any Interest Payment Date on the
Securities of any series means the date specified for that purpose as contemplated by Section 3.01.
Responsible Officer,
when used with respect to the Trustee, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any
Vice President, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
Securities has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated
and delivered under this Indenture.
Securities Act means the Securities Act of 1933 and any statute successor thereto, in
each case as amended from time to time.
Security Register and Security Registrar have the respective meanings
specified in Section 3.05.
Special Record Date for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.07.
Stated Maturity, when used with respect to any Security or any installment of
principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
Subsidiary of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of
which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a
contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.
Trust Indenture Act means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed, except
as otherwise provided in Section 9.05; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, Trust Indenture Act means, to the extent required by any such amendment, the Trust Indenture Act
of 1939 as so amended.
Trustee means the Person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter Trustee shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one
such Person, Trustee as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
5
U.S. Government Obligation has the meaning specified in Section 13.04.
Vice President, when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title vice president.
Section 1.02 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take or refrain from taking any action under any provision of this Indenture,
the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act; provided, however, that no opinion shall be required in connection with the issuance of Securities that are part of any series
as to which such an opinion has been furnished. Each such certificate and opinion shall be given in the form of an Officers Certificate, if to be given by an officer of the Company and an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate
or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided in Section 10.04) shall include,
(a) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.03 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any
certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any
Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
6
Section 1.04 Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given,
made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the Act of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
Without limiting the generality of the foregoing, a Holder, including a Depositary that is a Holder of a Global Security, may make, give or
take, by a proxy or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and a Depositary that is a Holder of a
Global Security may provide its proxy or proxies to the beneficial owners of interests in any such Global Security.
The fact and date of
the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that
the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership, principal amount and serial numbers of Securities held by any Person, and the date of commencement of such Persons
holding the same, shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, but the Company shall have no
obligation to do so; provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration
Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.
7
The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.02, (iii) any request to institute proceedings referred to
in Section 5.07(b) or (iv) any direction referred to in Section 5.12, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series
on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a
new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant
to this paragraph, the Trustee, at the Companys expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 1.06.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the Expiration Date and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06, on or prior to the then existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 180th day following such record date as the Expiration Date with respect
thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day following the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
Section 1.05 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing (which may be by facsimile or electronic transmission) to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of the Companys principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to
the Trustee by the Company.
8
Section 1.06 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at its address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 1.07 Conflict with Trust Indenture Act.
This Indenture is subject to the provisions of the Trust Indenture Act that are required to be a part of this Indenture and, to the extent
applicable, shall be governed by such provisions. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act or with another provision hereof which is required under the Trust Indenture Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or excluded, as the case may be.
Section 1.08 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.09 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture, except as may otherwise be expressly provided pursuant to Section 3.01 with respect to any specific Securities.
Section 1.12 Governing Law.
This
Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
9
Section 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment or other location, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) need not be made at such Place of Payment or other location on such date, but may be made on the next succeeding Business Day at such Place of Payment or other location with the same force and effect as if
made on the Interest Payment Date or Redemption Date, or at the Stated Maturity.
Section 1.14 Incorporators, Shareholders, Directors, Officers
and Employees of the Company Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such, or against any past, present or future partner, manager, member director, officer, employee,
unitholder or equityholder as such, of the Company or its general partner, or of any successor, either directly or through the Company or its general partner or any successor of the Company or its general partner, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of
the consideration for the issue of the Securities. The foregoing does not change any obligation that the Companys general partner may have to restore any negative balance in its capital account (maintained pursuant to the Companys
partnership agreement) upon liquidation of its interest in the Company. [Further, the foregoing waiver and release may not be effective under federal securities laws, however, and it is the view of the Commission that such a waiver and release is
against public policy.]
ARTICLE II. SECURITY FORM
Section 2.01 Forms Generally.
The
Securities of each series and the Trustees certificate of authentication shall be in substantially the forms set forth in this Article, or in such other form as shall be established by or pursuant to a Board Resolution and, subject to
Section 3.03, to the extent established pursuant to rather than set forth in a Board Resolution, in an Officers Certificate or Company Order setting forth, or determining the manner of, such establishment, or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable laws or the rules of any securities exchange or automated quotation system on which the Securities of such series may be listed or traded or of any Depositary therefor or as
may, consistently herewith, be determined by the officer executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the general partner of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.03 for
the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by the officer executing such Securities, as evidenced by their execution of such Securities.
Section 2.02 Form of Face of Security.
[Insert any legend required by the United States Internal Revenue Code and the regulations thereunder.]
10
[If a Global Security, insert legend required by Section 2.04 of the Indenture] [If
applicable, insert UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Midcoast Energy Partners, L.P.
Midcoast Energy Partners, L.P., a Delaware limited partnership (herein called the Company, which
term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to , or registered assigns, the principal sum of
United States Dollars [state other currency] on [if the Security is to bear interest prior to Maturity, insert , and to pay interest thereon from
or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semiannually on
and in each year, commencing ,
and at the Maturity thereof, at the rate of % per annum, until the principal hereof is paid or made available for payment. [If applicable, insert In the event that any
date on which interest is payable on this Security is not a Business Day, then a payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of
any such delay) with the same force and effect as if made on the date the payment was originally payable.] The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will as provided in such Indenture, be paid to
the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the
or (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any
such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange or automated quotation system on which the Securities of this series may be listed or traded, and upon such notice as
may be required by such exchange or automated quotation system, all as more fully provided in such Indenture].
[If the Security is not to
bear interest prior to Maturity, insert The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue
principal and any overdue premium shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates
such amounts are due until they are paid or made available for payment. Interest on any overdue principal or premium shall be payable on demand.]
[If a Global Security, insert Payment of the principal of [(and premium, if any)] and [if applicable, insert any such] interest
on this Security [may be made pursuant to the Applicable Procedures of the Depositary as permitted in such Indenture][will be made by transfer of immediately available funds to a bank account in designated by the Holder in such coin or currency of
the United States of America as at the time of payment is legal tender for payment of public and private debts [state other currency]].]
11
[If a definitive Security, insert ] Payment of the principal of (and premium, if any) and
[if applicable, insert any such] interest on this Security will be made at the office or agency of the Company maintained for that purpose in [in such coin or currency of
the United States of America as at the time of payment is legal tender for payment of public and private debts ] [state other currency] [or subject to any laws or regulations applicable thereto and to the right of the Company (as provided in the
Indenture) to rescind the designation of any such Paying Agent, at the [main] offices of in and
in , or at such other offices or agencies as the Company may designate, by [United States Dollar] [state
other currency] check drawn on, or transfer to a [United States Dollar] account maintained by the payee with, a bank in The City of New York [ ] (so long as the applicable Paying
Agent has received proper transfer instructions in writing at least [ ] days prior to the payment date)] [if applicable, insert ; provided, however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register] [or by transfer to a [United States Dollar] [state other currency] account maintained by the payee with a bank in The City of New York
[state other Place of Payment] (so long as the applicable Paying Agent has received proper transfer instructions in writing by the Record Date prior to the applicable Interest Payment Date)].]
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
|
|
|
Midcoast Energy Partners, L.P., By
Midcoast Holdings, L.L.C., its general partner |
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
Section 2.03 Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company (herein called the Securities), issued and to be
issued in one or more series under an Indenture, dated as of (herein called the Indenture, which term shall have the meaning assigned to it in such instrument),
between the Company and , as Trustee (herein called the Trustee, which term includes any successor trustee under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated
and delivered. This Security is one of the series designated on the face hereof [if applicable, insert , limited in aggregate principal amount to $ ].
[If applicable, insert The Securities of this series are subject to redemption upon not less than 30 nor more than 60 days notice
by mail, [if applicable, insert (1) on in any year commencing with the year and ending with the year through operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2)] at any time [if applicable, insert on or after , 20 ], as a whole or in part, at the election
of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [if applicable, insert on or before ,
%, and if redeemed] during the 12-month period beginning of the years indicated,
12
|
|
|
|
|
|
|
Year |
|
Redemption
Price |
|
Year |
|
Redemption Price |
and thereafter at a
Redemption Price equal to % of the principal amount, together in the case of any such redemption [if applicable, insert(whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable,
insert The Securities of this series are subject to redemption upon not less than 30 nor more than 60 days notice by mail, (1) on in any year commencing with
the year and ending with the year through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed
as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert on or after ], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12 month period beginning
of the years indicated,
|
|
|
|
|
Year |
|
Redemption Price
For Redemption
Through Operation of
the Sinking Fund |
|
Redemption Price For
Redemption Otherwise
Than Through Operation
of the Sinking Fund |
and
thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise)
with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert
Notwithstanding the foregoing, the Company may not, prior to , redeem any Securities of this series as contemplated by [if applicable, insert Clause (2) of] the
preceding paragraph as a part of or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance with generally accepted financial
practice) of less than % per annum.]
[If applicable, insert The sinking fund for this series provides for the redemption on
in each year beginning with the year and ending with the year
of [if applicable, insert not less than $ (mandatory sinking fund) and not more than]
$ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [if applicable, insert mandatory]
sinking fund payments may be credited against subsequent [if applicable, insert mandatory] sinking fund payments otherwise required to be made [if applicable, insert, in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insertIn the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
13
[If applicable, insert The Indenture contains provisions for defeasance at any time of
[the entire indebtedness of this Security] [or] [certain restrictive covenants and Events of Default with respect to this Security] [, in each case] upon compliance with certain conditions set forth in the Indenture.]
[If applicable, insert the Securities of this series are not redeemable prior to Stated Maturity.]
[If the Security is not an Original Issue Discount Security, insert If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to insert formula for determining the amount.
Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of
the Companys obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations
of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of a majority in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the
right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect
of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such proceeding, for 90 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for
the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
If so provided pursuant to the terms of any specific Securities, the above-referenced provisions of the Indenture regarding the ability of
Holders to waive certain defaults, or to request the Trustee to institute proceedings (or to give the Trustee other directions) in respect thereof, may be applied differently with regard to such Securities.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall, without the consent of the Holder, alter or
impair the obligation of the Company which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
14
[If a Global Security, insert This Global Security or portion hereof may not be exchanged
for definitive Securities of this series except in the limited circumstances provided in the Indenture.
The holders of beneficial
interests in this Global Security will not be entitled to receive physical delivery of definitive Securities except as described in the Indenture and will not be considered the Holders thereof for any purpose under the Indenture.] [If a definitive
Security, insert As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.]
The Securities of this series are issuable only in registered form without coupons
in denominations of [U.S.] $ [state other currency] and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested in writing by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer and notice to the Trustee thereof the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
[If this Security is a
Global Security, insert This Security is a Global Security and is subject to the provisions of the Indenture relating to Global Securities, including the limitations in Section 3.05 thereof on transfers and exchanges of Global
Securities.]
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
[If a Definitive Security, insert as a separate page -
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please Print or Typewrite Name and Address of Assignee) the within instrument of MIDCOAST ENERGY PARTNERS, L.P. and does hereby irrevocably constitute and appoint
Attorney to transfer said instrument on the books of the within-named Company, with full power of substitution in the premises.
Please Insert Social Security or
Other Identifying Number of
Assignee:
(Signature)
15
Dated:
Signature
Guarantee:
(Participant in a Recognized Signature Guaranty Medallion Program)
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular,
without alteration or enlargement or any change whatever.]
Section 2.04 Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced thereby, every Global Security authenticated and
delivered hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN
THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF,
THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
If Securities of a series are
issuable in whole or in part in the form of one or more Global Securities, as contemplated by Section 3.01, then, notwithstanding Clause (i) of Section 3.01 and the provisions of Section 3.02, any Global Security shall represent
such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced or increased, as the case may be, to reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any reduction or increase in the amount, of Outstanding Securities
represented thereby shall be made in such manner and upon instructions given by such Person or Persons as shall be specified therein or in a Company Order. Subject to the provisions of Sections 3.03, 3.04 and 3.05, the Trustee shall deliver and
redeliver any Global Security in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. Any instructions by the Company with respect endorsement or delivery or redelivery of a Global
Security shall be in a Company Order (which need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel).
The provisions of the last sentence of Section 3.03 shall apply to any Security represented by a Global Security if such Security was
never issued and sold by the Company and the Company delivers to the Trustee the Global Security together with a Company Order (which need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel) with regard to the
reduction or increase, as the case may be, in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 3.03.
Section 2.05 Form of Trustees Certificate of Authentication.
The Trustees certificates of authentication shall be in substantially the following form:
16
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the debt Securities of the series designated herein and referred to in the within-mentioned Indenture.
|
|
|
|
As Trustee |
|
|
By: |
|
|
Authorized Signatory |
ARTICLE III. THE SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution and, subject to
Section 3.03, to the extent established pursuant to rather than set forth in a Board Resolution, in an Officers Certificate or Company Order setting forth, or determining the manner of, such establishment, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any series,
(a) the form and title of the Securities of the series
(which shall distinguish the Securities of the series from Securities of any other series);
(b) any limit upon the aggregate principal
amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder);
(c) the issue price or prices of originally issued Securities, expressed as a percentage of the principal amount, and the original issue date;
(d) the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(e) the date or
dates on which the Securities will be issued and on which principal of, and premium, if any, on, any Securities of the series is payable or the method of determination thereof;
(f) the rate or rates (which may be fixed or variable, or combination thereof) at which any Securities of the series shall bear interest, if
any, or the method of determination thereof, the date or dates from which any such interest shall accrue, or the method of determination thereof, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for
any such interest payable on any Interest Payment Date;
(g) the place or places where, subject to the provisions of Section 10.02,
the principal of and any premium and interest on any Securities of the series shall be payable, Securities of the series may be surrendered for registration or transfer, Securities of the series may be surrendered for exchange, and notices and
demands to or upon the Company in respect of the Securities of the series and this Indenture may be served;
(h) the period or periods, if
any, within which, the price or prices at which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any
election by the Company to redeem the Securities shall be evidenced;
17
(i) the obligation, if any, and the option, if any, of the Company to redeem, purchase or repay
any Securities of the series pursuant to any sinking fund or analogous provisions or upon the happening of a specified event or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms
and conditions upon which any Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation or option;
(j) if other than a denomination equal to the U.S. Dollar equivalent of EUR 100,000 or an integral multiple of $1,000 in excess thereof
the denominations in which any Securities of the series shall be issuable;
(k) if the debt Securities will be issued in registered or
bearer form or both and, if in bearer form, the related terms and conditions and any limitations on issuance of such bearer debt Securities (including exchange for registered debt Securities of the same series);
(l) if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index
including an index based on a currency or currencies other than in which the Securities of that series are payable or pursuant to a formula, the manner in which such amounts shall be determined;
(m) if other than the currency of the United States of America, the currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be denominated, payable, redeemable or purchasable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for purposes
of the definition of Outstanding in Section 1.01;
(n) if the principal of or any premium or interest on any Securities of
the series is to be payable, redeemable or purchasable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, redeemable, or
purchasable, the currency, currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, redeemable or purchasable, the periods within which and the terms and
conditions upon which such election is to be made and the amount so payable, redeemable or purchasable (or the manner in which such amount shall be determined);
(o) if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or provable in bankruptcy pursuant to Section 5.04 or the method of determination thereof;
(p) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any
Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(q) if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 13.02 or
Section 13.03 or both such Sections or if other than as provided in Sections 13.02 or 13.03, the terms and conditions upon which and the manner in which such series of Securities may be defeased or discharged, and, if other than by a Board
Resolution, the manner in which any election by the Company to defease or discharge such Securities shall be evidenced;
(r) if applicable,
that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by
any such Global Security in addition to or in lieu of that set forth in Section 2.04, information with respect to book-entry procedures, and any circumstances in addition to or in lieu of
18
those set forth in Section 3.05 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part
may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;
(s) if the
debt Security is issued as an original issue discount debt Security, and if so, the yield to maturity;
(t) any deletion from, addition to
or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to
Section 5.02;
(u) any addition to or change in the covenants set forth in Article X which applies to Securities of the series or in
any defined term used in either Article X;
(v) the right, if any, of the Company to defer payments of interest by extending the interest
payment periods and specify the duration of such extension, the Interest Payment Dates on which such interest shall be payable and whether and under what circumstances additional interest on amounts deferred shall be payable;
(w) if other than the Trustee, the identity of any other trustee, the Security Registrar and any Paying Agent; and
(x) any other terms of the Securities of the series (which terms shall not be prohibited by the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or
pursuant to the Board Resolution referred to above and (subject to Section 3.03) set forth, or determined in the manner provided, in the Officers Certificate referred to above or in any such indenture supplemental hereto. Accordingly, the
terms of any Security of a series may differ from the terms of other Securities of the same series, if and to the extent provided pursuant to this Section 3.01. The matters referenced in any or all of Clauses (a) through (x) above may
be established and set forth or determined as aforesaid with respect to all or any specific Securities of a series (in each case to the extent permitted by the Trust Indenture Act).
Any such Board Resolution or Officers Certificate referred to above with respect to Securities of any series filed with the Trustee on
or before the initial issuance of the Securities of such series shall be incorporated herein by reference with respect to Securities of such series and shall thereafter be deemed to be a part of the Indenture for all purposes relating to Securities
of such series as fully as if such Board Resolution or Officers Certificate were set forth herein in full.
All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for increases in the aggregate principal amount of such series of Securities and issuances of additional
Securities of such series or for the establishment of additional terms with respect to the Securities of such series.
If any of the terms
of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the general partner of the Company and delivered to the
Trustee at or prior to the delivery of the Officers Certificate setting forth the terms of the series.
Section 3.02 Denominations.
The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as
contemplated by Section 3.01. The Securities of each series shall be issuable in a minimum denomination of $100,000 or an integral multiple of $1,000 in excess thereof.
19
Section 3.03 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by the President or one of the Vice Presidents of the general partner of the Company
(or any other officer of the general partner of the Company designated in writing by or pursuant to authority of the Board of Directors and delivered to the Trustee from time to time). The signature of any of these officers on the Securities may be
manual or facsimile.
The Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of
the general partner of the Company shall bind the Company notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been established by or pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 3.01, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to, Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Section 2.01, that such form
has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.01, that such terms have been established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel will constitute binding obligations of the Company enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors rights and to general equity principles or other customary exceptions.
If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture in accordance with the Board Resolutions will affect the Trustees own rights, duties, obligations, responsibilities or immunities under the Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary, unless the Trustee reasonably determines otherwise, for the Company to deliver the Officers Certificate otherwise required pursuant to
Section 3.01 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication
upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
20
Section 3.04 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
Section 3.05 Registration;
Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office or other designated office of
the Trustee a register (the register maintained in such office being herein sometimes collectively, referred to as the Security Register) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Securities and of transfers of Securities entitled to registration or transfer as provided herein. The Trustee is hereby appointed Security Registrar for the purpose of registering Securities and transfers of
Securities as herein provided. The Company may at any time replace such Security Registrar, change such office or agency or act as its own Security Registrar. The Company will give prompt written notice to the Trustee of any change of the Security
Registrar or of the location of such office or agency. At all reasonable times the Security Register shall be available for inspection by the Trustee.
Upon surrender for registration of transfer of any Security of a series at the office or agency of the Company in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and
aggregate principal amount.
At the option of the Holder, Securities of any series (except a Global Security) may be exchanged for other
Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
21
No service charge shall be made for any registration of transfer or exchange of Securities, but
the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06
or 11.07 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in part,
neither the Company nor the Trustee shall be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any such Securities selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (a), (b), (c) and (d) below shall apply only to Global Securities:
(a) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, and subject to such applicable provisions, if any, as may be specified as
contemplated by Section 3.01, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for
such Global Security or a nominee thereof unless (1) such Depositary has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or has ceased to be a clearing agency registered under the Exchange
Act, and a successor Depositary is not appointed by the Company within 90 days after the Companys receipt of such notice, (2) there shall have occurred and be continuing an Event of Default with respect to such Global Security and the
Security Registrar has received a request from the Depositary to issue certificated securities in lieu of the Global Security, (3) the Company shall determine in its sole discretion that Securities of a series issued in global form shall no
longer be represented by a Global Security, or (4) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 3.01, then in any such case,
such Global Security may be exchanged by such Depositary for definitive Securities of the same series, of any authorized denomination and of a like aggregate principal amount and tenor, registered in the names of, and the transfer of such Global
Security or portion thereof may be registered to, such Persons as such Depositary shall direct. If the Company designates a successor Depositary pursuant to Clause (1) above, such Global Security shall promptly be exchanged in whole for one or
more other Global Securities registered in the name of the successor Depositary, whereupon such designated successor shall be the Depositary for such successor Global Security or Global Securities and the provisions of Clauses (a), (b), (c) and
(d) of this Section shall continue to apply thereto.
(c) Subject to Clause (b) above and to such applicable provisions, if any,
as may be specified as contemplated by Section 3.01, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered
in such names as the Depositary for such Global Security shall direct.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
22
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, together with such security or indemnity as may be required by the Company or the
Trustee to save each of them and any agent of either of them harmless, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously Outstanding. If, after the delivery of such new Security, a bona fide purchaser of the original Security in lieu of which such new Security was issued presents for payment or
registration such original Security, the Trustee shall be entitled to recover such new Security from the party to whom it was delivered or any party taking therefrom, except a bona fide purchaser, and shall be entitled to recover upon the security
or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Company and the Trustee in connection therewith.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security, the Company may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.07 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called Defaulted Interest) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit
23
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 1.06, not less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (b).
(b)
The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.05, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
For each series of Securities, the Company shall, prior to Noon New York City time, on each payment date for principal and premium, if any,
and interest, if any, deposit with the Trustee money in immediately available funds sufficient to make cash payments due on the applicable payment date.
Section 3.08 Persons Deemed Owners.
Except as otherwise contemplated by Section 3.01 with respect to any series of Securities, prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any
premium and (subject to Sections 3.05 and 3.07) any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its behalf by a Depositary shall
have any rights under this Indenture with respect to such Global Security, and such Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the owner of such Global Security for all purposes whatsoever.
None of the Company, the Trustee, nor any agent of the Company or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or
for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 3.09 Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the Trustee and, if not already cancelled, shall be promptly cancelled by it. The Company may at any time deliver to the
24
Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of as directed by a Company Order, and the Trustee shall thereafter deliver to the Company a certificate with respect to such deposition.
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11 CUSIP Numbers.
The Company in issuing the Securities may use CUSIP numbers (in addition to the other identification numbers printed on the
Securities), if then in use, and, if so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of
such CUSIP numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such CUSIP numbers. The Company will promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE IV SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further effect with respect to Securities of any series (except as to any surviving
rights of registration of transfer or exchange of Securities herein expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to
such Securities, when
(a) either
(1) all such Securities theretofore authenticated and delivered (other than (i) such Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.06 and (ii) such Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee cancelled or for cancellation; or
(2)
all such Securities not theretofore delivered to the Trustee as cancelled or for cancellation
i. have become due and payable, or
ii. will become due and payable at their Stated Maturity within one year, or
iii. are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company,
and the Company in the case of (i), (ii) or (iii) above, has deposited or caused
to be deposited with the Trustee, as trust funds in trust for the purpose, an amount of money in the currency or currency units in which such Securities are payable sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee as cancelled or for cancellation, for principal and any premium and interest to the date of such deposit (in the case of such Securities which have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
25
(b) the Company has paid or caused to be paid, or otherwise made provision for the payment of,
all other sums payable hereunder by the Company with respect to such Securities; and
(c) the Company has delivered to the Trustee an
Officers Certificate and an Opinion of Counsel each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to Securities of any series, the obligations of the Company to
the Trustee under Section 6.07, the obligations of the Trustee to any Authenticating Agent under Section 6.14 and the right of the Trustee to resign under Section 6.10 shall survive, and, if money shall have been deposited with the
Trustee pursuant to subclause (2) of Clause (a) of this Section, the obligations of the Trustee under Sections 4.02, 6.06, 7.01 and 10.02 and the last paragraph of Section 10.03 shall survive.
Section 4.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 shall
be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee. All money deposited with the Trustee pursuant to Section 4.01 (and held by it or any
Paying Agent) for the payment of such Securities subsequently converted into other property shall be returned to the Company upon Company Request. The Company may direct by a Company Order the investment of any money deposited with the Trustee
pursuant to Section 4.01, without distinction between principal and income, in (1) United States Treasury Securities with a maturity of one year or less or (2) a money market fund that invests solely in short term United States
Treasury Securities (including money market funds for which the Trustee or an affiliate of the Trustee serves as investment advisor, administrator, shareholder, servicing agent and/or custodian or sub-custodian, notwithstanding that (a) the
Trustee charges and collects fees and expenses from such funds for services rendered and (b) the Trustee charges and collects fees and expenses for services rendered pursuant to this Indenture at any time), and from time to time the Company may
direct the reinvestment of all or a portion of such money in other securities or funds meeting the criteria specified in Clause (1) or (2) of this Section.
ARTICLE V REMEDIES
Section 5.01. Events of Default.
Event of Default, wherever used herein with respect to Securities of any series, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of
such default for a period of 60 days; or
(b) default in the payment of the principal of or any premium on any Security of that series at
its Maturity; or
(c) default in the deposit of any sinking fund payment or other analogous required payment, if any, when and as due by
the terms of a Security of that series; or
26
(d) default in the performance of, or compliance with, any covenant of the Company in this
Indenture (other than a default in the performance of or compliance with a covenant which is specifically dealt with elsewhere in this Section or which has expressly been included in this Indenture solely for the benefit of series of Securities
other than that series), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a Notice of Default hereunder; or
(e) the entry by a court having jurisdiction in the premises of (1) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (2) a decree or order adjudging the Company bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of
the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90
consecutive days; or
(f) the commencement by the Company of a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
(g) any other Event of Default provided as contemplated by Section 3.01 with respect to Securities of that series.
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section 5.01(e) or 5.01(f)) with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an Event of Default specified in Section 5.01(e) or 5.01(f) with respect to
Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities
as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if
27
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay all
(1) overdue interest on all Securities of that series,
(2) the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,
(3) to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(4) all sums paid or
advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;
and
(b) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall
affect any subsequent default or impair any right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any Security of a series when such interest becomes due and payable and such default
continues for a period of 60 days, or
(b) default is made in the payment of the principal of (or premium, if any, on) any Security of a
series at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of
such series of Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and
premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon the Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Securities,
wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
28
Section 5.04. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other obligor upon the Securities, its property or its creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand for overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee
any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that
the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors or other similar committee.
Section 5.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture, the Securities may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery shall after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 5.06. Application of Money Collected.
Any money or property collected or to be applied by the Trustee pursuant to this Article shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 6.07;
Second: To the payment of the amounts then due and unpaid for principal of and any premium and interest on the Securities in respect of which
or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest, respectively; and
Third: The balance, if any, to the Company.
Section 5.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given
written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(b) the Holders of not less
than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
29
(c) such Holder or Holders have offered, and if requested, provided to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
(d) the Trustee for 60
days after its receipt of such notice, request and offer and, if requested, provision of security or indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right
in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders
or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 5.08. Unconditional Right of Holders to Receive Principal Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional to
receive payment of the principal of and any premium and (subject to Sections 3.05 and 3.07) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
30
Section 5.12. Control by Holders.
Subject to Section 6.03, the Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that
(a) such direction shall not be in conflict with any rule of law or with this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in
good faith shall determine that the proceeding so directed would involve the Trustee in personal liability or would otherwise be contrary to applicable law.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
(a) in the
payment of the principal of or any premium or interest on any Security of such series, or
(b) in respect of a covenant or provision hereof
which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company or the Trustee.
Section 5.15. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenant that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
31
ARTICLE VI THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to any series of Securities,
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect to the
Securities of such series, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the
absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to any series of Securities has occurred and
is continuing, the Trustee shall exercise with respect to the Securities of such series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise under
the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(1) this Subsection
shall not be construed to limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the Outstanding Securities of any Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights and powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(d) Whether
or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
Section 6.02. Notice of Defaults.
Within 90 days after the occurrence, and during the continuance, of any default with respect to the Securities of any series which is known to
the Trustee, the Trustee shall transmit, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, notice of all uncured or unwaived such defaults; provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest on Securities of any series or in the payment of any sinking or purchase fund installment with respect to such Securities, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interests of the Holders of Securities of
such series; and provided, further, however, that in the case of any default of the character specified in Section 5.01(d) with respect to the Securities of such series, no such notice to Holders of Securities shall be given until at least 90
days after the occurrence thereof. For the purpose of this Section, the term default means any event which is, or after notice or lapse of time or both would become, an Event of Default.
32
Section 6.03. Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company
Order, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the
administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, rely upon an Officers Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may, without
obligation to do so, make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be charged with knowledge of any default (as defined in Section 6.02) or Event of Default with respect to the
Securities of any series for which it is acting as Trustee unless either (1) a Responsible Officer of the Trustee shall have actual knowledge of such default or Event of Default or (2) written notice of such default or Event of Default
shall have been given to the Trustee by the Company or any other obligor on such Securities or by any Holder of such Securities;
(i) the
Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; and
(j) the rights, privileges, protections, immunities and benefits given to the Trustee by this Indenture, including, without limitation, its
right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed by the Trustee to act on the Trustees behalf hereunder in any such
capacity.
33
Section 6.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustees certificates of authentication, shall be taken as the statements
of the Company and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. Neither the Trustee nor any Authenticating Agent makes any representations as to the validity or sufficiency of this Indenture or
of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 6.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
Section 6.07.
Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such reasonable compensation as shall be agreed in writing between the parties for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may
be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under
this Section to compensate the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder.
Without limiting any rights available to the Trustee under applicable law, when the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.01(e) or Section 5.01(f), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for such services are intended to constitute expenses of
administration under any applicable Bankruptcy Law.
The provisions of this Section shall survive the satisfaction and discharge of this
Indenture and the defeasance of the Securities and, with respect to amounts due to the Trustee for events that occurred prior to the resignation or removal of the Trustee, the resignation or removal of the Trustee.
34
Section 6.08. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.
Section 6.09. Corporate Trustee Required, Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder
for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $100,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 6.10. Resignation and Removal, Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
The Trustee may
resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of
the Outstanding Securities of such series, delivered to the Trustee and to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after giving of such notice of removal, the
removed Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.
If at any time:
(a) the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.09 and shall fail to
resign after written request therefor by the Company or by any such Holder, or
(c) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (1) the Company by a Board Resolution may remove the Trustee with respect to all Securities of which such Trustee acts as trustee, or (2) subject to Section 5.14, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities of which such Trustee acts as
trustee and the appointment of a successor Trustee or Trustees.
35
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Security of such
series for at least six months or the Trustee may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.06. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by
Successor.
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its
charges and reimbursement of its expenses (including reasonable fees and expenses of counsel and agents), if any, to which such retiring Trustee is otherwise legally entitled, execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (b) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (c) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee
relates.
36
Upon request of any such successor Trustee, the Company shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
Section 6.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).
Section 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on
behalf of and subject to the direction of the Trustee to authenticate and deliver Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06, and
Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustees certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $100,000,000 and subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an
Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
37
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of
such appointment in the manner provided in Section 1.06 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall
become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this
Section.
Except with respect to an Authenticating Agent appointed at the request of the Company, the Trustee agrees to pay to each
Authenticating Agent from time to time reasonable compensation for its services under this Section.
If an appointment with respect to one
or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustees certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
|
[Indenture Trustee], as Trustee |
|
By:
, as |
Authenticating Agent |
|
By:
|
Authorized
Signatory |
ARTICLE VII HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record Date, a list for each series of Securities, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities of such series as of such Regular Record Date, and
(b) at such
other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security Registrar for the Securities of a series, no such list need be
furnished with respect to such series of Securities.
38
Section 7.02. Preservation of Information; Communications to Holders.
Subject to compliance with its obligations pursuant to Section 312 of the Trust Indenture Act, the Trustee (i) shall preserve, in as
current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its
capacity as Security Registrar and (ii) may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or the Securities, and the
corresponding rights and privileges of the Trustee shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by
receiving and holding the same, agrees with the Company and the Trustee that none of the Company, the Trustee nor any agent of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 7.03. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant thereto. As promptly as practicable after each May 15 beginning with the May 15 following the date of this Indenture, and in any event prior to July 15 in each
year, the Trustee shall mail to each Holder a brief report dated as of May 15 that complies with Trust Indenture Act Section 313(a). The Trustee also shall comply with Trust Indenture Act Section 313(b). Prior to delivery to the
Holders, the Trustee shall deliver to the Company a copy of any report it delivers to Holders pursuant to this Section 7.03.
A copy
of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
Section 7.04. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such
summaries thereof as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the Company files the same with the Commission.
Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustees receipt of such
shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Companys compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers Certificates).
Such information, documents, reports and summaries shall be deemed to have been
(i) filed by the Company with the Trustee and (ii) transmitted by the Company to Holders, as the case may be, if the Company has filed such information, documents, reports and summaries with the Commission using the EDGAR filing system (or
any successor filing system) and such reports are publicly available, in each case to the extent such filing with the EDGAR filing system (or any successor filing system) and the foregoing effect thereof, is not prohibited by the Trust Indenture
Act.
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or convey, transfer or lease (as lessor) its properties and assets as, or
substantially as, an entirety to any Person, unless:
39
(a) (i) in the case of a merger, the Company is the surviving Person, or (2) the Person
formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company as, or substantially as, an entirety shall be a corporation or
partnership and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the
Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall exist; and
(c) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied with.
Section 8.02. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease (as lessor) of
the properties and assets of the Company as, or substantially as, an entirety in accordance with Section 8.01, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case
of a lease (where the Company is the lessor), the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE IX SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, and the Trustee, at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another
Person to the Company under this Indenture and the Securities and the assumption by such successor of the obligations of the Company hereunder and under the Securities;
(b) to add covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company with regard to all or any series of
Securities (and if any such surrender is to be made with regard to less than all series of Securities, stating that such surrender is expressly being made solely with regard to such series);
(c) to add Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to
be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series);
(d) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form;
40
(e) to add to, change or eliminate any of the provisions of this Indenture in respect of all or
any series of Securities (and if such addition, change or elimination is to apply to less than all series of Securities, stating that it is expressly being made to apply solely with respect to such series), provided that any such addition, change or
elimination (1) shall neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such
Security with respect to such provision or (2) shall become effective only when there is no such Security Outstanding;
(f) to secure
the Securities or any guarantee with respect to any Securities;
(g) to establish the form or terms of Securities of any series hereunder;
(h) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11;
(i) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided that such action pursuant to this Clause (i) shall not adversely affect the interests of the Holders of any Securities in any
material respect;
(j) to add one or more guarantors with respect to the Securities as parties to the Indenture or to release guarantors in
accordance with the provisions of any supplemental indenture;
(k) to qualify this Indenture under the Trust Indenture Act;
(l) to supplement any provisions of this Indenture necessary to permit or facilitate the defeasance and discharge of any series of Securities,
provided that such action does not adversely affect the interests of the Holders of Securities of such series or any other series; or
(m)
to comply with the rules or regulations of any securities exchange or automated quotation system on which any of the Securities of a series may be listed or traded.
Section 9.02. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected
by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture, or modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(a) change the Stated
Maturity of the principal of, or any installment of principal of or interest, if any, on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or change the Companys obligation to
maintain an office or agency for payment of Securities and the other matters specified herein, or the coin or currency in which any Security is payable, or impair the right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or alter the method of computation of interest,
41
(b) reduce the percentage in principal amount of the Outstanding Securities of any series, the
consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(c) modify any of the provisions of this Indenture relating to the execution of supplemental indentures
with the consent of Holders of Securities which are discussed in this Section or modify any provisions relating to the waiver by holders of Securities of past defaults and covenants, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder
with respect to changes in the references to the Trustee and concomitant changes in this Section and Section 10.06, or the deletion of this proviso, in accordance with the requirements of Sections 6.11 and 9.01(h).
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustees own rights, duties or immunities under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture, for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.
Section 9.06. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplements indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of
the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series. Failure to make a notation or issue a
new Security shall not affect the validity and effect of any amendment, supplement or waiver.
42
ARTICLE X COVENANTS
Section 10.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and
premium, if any, and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture. Principal, premium, if any, and interest will be considered paid on the date due if the Trustee or Paying Agent, if
other than the Company or a Subsidiary thereof, holds as of Noon, New York City time, on the due date, money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and
interest on the Notes then due.
Section 10.02. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies
where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
Except as otherwise specified with respect to a series of Securities as contemplated by
Section 3.01, the Company hereby initially designates as the Place of Payment for each series of Securities The City of New York, and initially appoints the Trustee as Paying Agent at its Corporate Trust Office as the Companys office or
agency for each such purpose in such city.
Section 10.03. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of
the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the principal
of or any premium or interest on any Securities of that series, deposit (or, if the Company has deposited any trust funds with a trustee pursuant to Section 13.04(a), causes such trustee to deposit) with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest, if
any, on Securities of that series in trust for the benefit of the Persons
43
entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; (2) give the Trustee notice of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment of principal (and premium, if any) or interest, if any, on the Securities of that series; and (3) during the continuance of any such default, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from an further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and
all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.04. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 150 days after the end of each of its fiscal years ending after the date hereof, an
Officers Certificate, stating whether or not to the best knowledge of the signer thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period
of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
Section 10.05. Existence.
Subject to Article VIII, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its
corporate (or equivalent) existence.
Section 10.06. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 3.01 for Securities of such series, the Company may, with respect to the
Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 3.01(u), 9.01(b) or 9.01(g) for the benefit of the Holders of such series or in
Article VIII or Section 10.05, if before the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in fall force and effect.
44
ARTICLE XI REDEMPTION OF SECURITIES
Section 11.01. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for such Securities) in accordance with this Article.
Section 11.02.
Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be established in or pursuant to
a Board Resolution or in another manner specified as contemplated by Section 3.01 for such Securities. In case of any redemption at the election of the Company of less than all the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, not less than 35 nor more than 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Company, which is subject to a condition specified in the terms of such Securities, the Company shall furnish the Trustee
with an Officers Certificate evidencing compliance with such restriction or condition.
Section 11.03. Selection by Trustee
of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the Securities of such
series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 45 days prior to the Redemption Date by the Trustee (unless a
shorter period shall be satisfactory to the Trustee), from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which complies with any securities exchange
or other applicable requirements for redemption of a portion of the principal amount of any Security of such series, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not
be less than the minimum authorized denomination) for such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 45 days prior to the Redemption Date by the Trustee (unless a shorter period shall be satisfactory to the Trustee), from the Outstanding Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company and each Security Registrar in
writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
45
Section 11.04. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date (or within such period as otherwise specified as contemplated by Section 3.01 for the relevant Securities), to each Holder of Securities to be redeemed, at his address appearing in the Security Register.
All notices of redemption shall identify the Securities to be redeemed (including CUSIP numbers, if any) and shall state:
(a) the Redemption Date,
(b) the
Redemption Price,
(c) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single
Security are to be redeemed, the principal amount of the particular Security to be redeemed,
(d) that on the Redemption Dates, the
Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(e) the place or places where each such Security is to be surrendered for payment of the Redemption Price, and
(f) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Companys
request, by the Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 11.05. Deposit of
Redemption Price.
On or prior to Noon New York City time on any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.
Section 11.06. Securities Payable on
Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 3.01, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.
If any Security called
for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
46
Section 11.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII SINKING FUNDS
Section 12.01. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise
specified as contemplated by Section 3.01 for such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities is herein referred to as a mandatory sinking fund payment, and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an optional sinking fund
payment. If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities as
provided for by the terms of such Securities.
Section 12.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (a) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (b) may apply as
a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such Securities;
provided that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities so to be
redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.03. Redemption of Securities for Sinking Fund.
Not less than 45 days (or shorter period as shall be satisfactory to the Trustee) prior to each sinking fund payment date for any Securities,
the Company will deliver to the Trustee an Officers Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied
by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 12.02 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days prior to
each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07.
47
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01. Companys Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 13.02 or Section 13.03 applied to any Securities or any series of
Securities, as the case may be, designated pursuant to Section 3.01 as being defeasible pursuant to such Section 13.02 or 13.03, in accordance with any applicable requirements provided pursuant to Section 3.01 and upon compliance with
the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 3.01 for such Securities.
Section 13.02. Defeasance and Discharge.
Upon the Companys exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case
may be, the Company shall be deemed to have been discharged from its obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called
Defeasance). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (a) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 13.04 and as more fully set forth in such Section, payments in respect of the principal of and any premium
and interest on such Securities when payments are due, (b) the Companys obligations with respect to such Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (d) this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have
Section 13.03 applied to such Securities.
Section 13.03. Covenant Defeasance.
Upon the Companys exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case
may be, (a) the Company shall be released from its obligations under Section 7.04, Section 8.01(c), Section 10.05 and any covenants provided pursuant to Section 3.01(u), 9.01(b) or 9.01(g) for the benefit of the Holders of
such Securities, and (b) the occurrence of any event specified in Section 5.01(d) (with respect to any of Section 7.04, Section 8.01(c), Section 10.05 and any such covenants provided pursuant to Section 3.01(u), 9.01(b)
or 9.01(g)) or 5.01(g) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied
(hereinafter called Covenant Defeasance). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so specified in the case of Section 5.01(d)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any
such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
Section 13.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 13.02 or Section 13.03 to any Securities or any series of
Securities, as the case may be:
(a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another
trustee which satisfies the requirements contemplated by Section 6.09 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trusts for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such Securities, (A) money in an amount, or (B) in the case of any series of Securities the payment on which may only be made in legal coin or currency of the United
States, U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or
(C) such other obligations or arrangements as may be specified as
48
contemplated by Section 3.01 with respect to such Securities, or (D) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public
accountants or investment bankers, in either case expressed in a written certification thereof to be delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and
discharge, (1) the principal of and any premium and interest on such Securities on the respective Stated Maturities, in accordance with the terms of this Indenture and such Securities or any Redemption Date established pursuant to clause
(i) below, and (2) any mandatory sinking fund payments on the dates on which such payments are due and payable in accordance with the terms of this Indenture and such Securities. As used herein, U.S. Government Obligation means
(x) any security which is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified
in Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the
specific payment of principal or interest evidenced by such depositary receipt.
(b) In the event of an election to have Section 13.02
apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date of this Indenture, there has been a change in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders
of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.
(c) In the event
of an election to have Section 13.03 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel that shall confirm that the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same
times as would be the case if such deposit and Covenant Defeasance were not to occur.
(d) The Company shall have delivered to the Trustee
an Officers Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.
(e) No event which is, or after notice or lapse of time or both would become, an Event of Default shall have occurred and be continuing at the
time of such deposit (other than such event or Event of Default (if any) resulting from the incurrence of indebtedness or the grant of liens securing such indebtedness, all or a portion of the proceeds of which will be applied to such deposit) or,
with regard to any such event specified in Sections 5.01(e) and (f), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).
(f) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such Act).
49
(g) Such deposit shall not result in a breach of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company is a party or by which it is bound, or if such breach or default would occur, which is not waived as of, and for all purposes, on and after, the date of such deposit.
(h) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.
(i)
If the Securities are to be redeemed prior to Stated Maturity (other than from mandatory sinking fund payments or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee shall have been made.
(j) The Company shall have delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
Section 13.05. Deposited Money and U.S. Government obligations to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.03, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.06, the Trustee and any such other trustee are referred to collectively as the Trustee) pursuant to
Section 13.04 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums, due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 13.04 with respect to any Securities which are in excess of the amount thereof which would then be required to
be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
Section 13.06.
Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture, such Securities from which the Company has been
discharged or released pursuant to Section 13.02 or 13.03 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to
apply all money held in trust pursuant to Section 13.05 with respect to such Securities in accordance with this Article; provided, however, that if the Company makes any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
[Signature Pages Follow]
50
This instrument may be executed in any number of counterparts, and by each party hereto on
separate counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
|
|
|
MIDCOAST ENERGY PARTNERS, L.P., |
By Midcoast Holdings, L.L.C., its general partner |
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
|
U.S. BANK NATIONAL ASSOCIATION, as Trustee |
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
[Signature Page to Indenture]
Exhibit 4.5
SUBORDINATED INDENTURE
DATED AS
OF , 20
BETWEEN
MIDCOAST ENERGY PARTNERS, L.P.
as Issuer,
AND
U.S. BANK NATIONAL ASSOCIATION
as Trustee
Providing for Issuance of
Debt Securities
in Series
TABLE OF CONTENTS
|
|
|
|
|
|
|
RECITALS |
|
|
1 |
|
|
|
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
|
|
1 |
|
|
|
|
Section 1.01. |
|
Definitions |
|
|
1 |
|
Section 1.02. |
|
Compliance Certificates and Opinions |
|
|
6 |
|
Section 1.03. |
|
Form of Documents Delivered to Trustee |
|
|
7 |
|
Section 1.04. |
|
Acts of Holders; Record Dates |
|
|
7 |
|
Section 1.05. |
|
Notices, Etc., to Trustee and Company |
|
|
9 |
|
Section 1.06. |
|
Notice to Holders; Waiver |
|
|
9 |
|
Section 1.07. |
|
Conflict with Trust Indenture Act |
|
|
9 |
|
Section 1.08. |
|
Effect of Headings and Table of Contents |
|
|
9 |
|
Section 1.09. |
|
Successors and Assigns |
|
|
9 |
|
Section 1.10. |
|
Separability Clause |
|
|
10 |
|
Section 1.11. |
|
Benefits of Indenture |
|
|
10 |
|
Section 1.12. |
|
Governing Law |
|
|
10 |
|
Section 1.13. |
|
Legal Holidays |
|
|
10 |
|
Section 1.14. |
|
Incorporators, Shareholders, Directors, Officers and Employees of the Company Exempt from Individual Liability |
|
|
10 |
|
|
|
ARTICLE II SECURITY FORM |
|
|
10 |
|
|
|
|
Section 2.01. |
|
Forms Generally |
|
|
10 |
|
Section 2.02. |
|
Form of Face of Security |
|
|
11 |
|
Section 2.03. |
|
Form of Reverse of Security |
|
|
13 |
|
Section 2.04. |
|
Form of Legend for Global Securities |
|
|
16 |
|
Section 2.05. |
|
Form of Trustees Certificate of Authentication |
|
|
17 |
|
|
|
ARTICLE III THE SECURITIES |
|
|
17 |
|
|
|
|
Section 3.01. |
|
Amount Unlimited; Issuable in Series |
|
|
17 |
|
Section 3.02. |
|
Denominations |
|
|
20 |
|
Section 3.03. |
|
Execution, Authentication, Delivery and Dating |
|
|
20 |
|
Section 3.04. |
|
Temporary Securities |
|
|
21 |
|
Section 3.05. |
|
Registration; Registration of Transfer and Exchange |
|
|
22 |
|
Section 3.06. |
|
Mutilated, Destroyed, Lost and Stolen Securities |
|
|
23 |
|
Section 3.07. |
|
Payment of Interest; Interest Rights Preserved |
|
|
24 |
|
Section 3.08. |
|
Persons Deemed Owners |
|
|
25 |
|
Section 3.09. |
|
Cancellation |
|
|
25 |
|
Section 3.10. |
|
Computation of Interest |
|
|
25 |
|
Section 3.11. |
|
CUSIP Numbers |
|
|
25 |
|
|
|
ARTICLE IV SATISFACTION AND DISCHARGE |
|
|
26 |
|
|
|
|
Section 4.01. |
|
Satisfaction and Discharge of Indenture |
|
|
26 |
|
Section 4.02. |
|
Application of Trust Money |
|
|
26 |
|
ii
|
|
|
|
|
|
|
|
|
ARTICLE V REMEDIES |
|
|
27 |
|
|
|
|
Section 5.01. |
|
Events of Default |
|
|
27 |
|
Section 5.02. |
|
Acceleration of Maturity; Rescission and Annulment |
|
|
28 |
|
Section 5.03. |
|
Collection of Indebtedness and Suits for Enforcement by Trustee |
|
|
29 |
|
Section 5.04. |
|
Trustee May File Proofs of Claim |
|
|
29 |
|
Section 5.05. |
|
Trustee May Enforce Claims Without Possession of Securities |
|
|
30 |
|
Section 5.06. |
|
Application of Money Collected |
|
|
30 |
|
Section 5.07. |
|
Limitation on Suits |
|
|
30 |
|
Section 5.08. |
|
Unconditional Right of Holders to Receive Principal Premium and Interest |
|
|
31 |
|
Section 5.09. |
|
Restoration of Rights and Remedies |
|
|
31 |
|
Section 5.10. |
|
Rights and Remedies Cumulative |
|
|
31 |
|
Section 5.11. |
|
Delay or Omission Not Waiver |
|
|
31 |
|
Section 5.12. |
|
Control by Holders |
|
|
31 |
|
Section 5.13. |
|
Waiver of Past Defaults |
|
|
31 |
|
Section 5.14. |
|
Undertaking for Costs |
|
|
32 |
|
Section 5.15. |
|
Waiver of Usury, Stay or Extension Laws |
|
|
32 |
|
|
|
ARTICLE VI THE TRUSTEE |
|
|
32 |
|
|
|
|
Section 6.01. |
|
Certain Duties and Responsibilities |
|
|
32 |
|
Section 6.02. |
|
Notice of Defaults |
|
|
33 |
|
Section 6.03. |
|
Certain Rights of Trustee |
|
|
33 |
|
Section 6.04. |
|
Not Responsible for Recitals or Issuance of Securities |
|
|
34 |
|
Section 6.05. |
|
May Hold Securities |
|
|
34 |
|
Section 6.06. |
|
Money Held in Trust |
|
|
34 |
|
Section 6.07. |
|
Compensation and Reimbursement |
|
|
35 |
|
Section 6.08. |
|
Conflicting Interests |
|
|
35 |
|
Section 6.09. |
|
Corporate Trustee Required, Eligibility |
|
|
35 |
|
Section 6.10. |
|
Resignation and Removal, Appointment of Successor |
|
|
35 |
|
Section 6.11. |
|
Acceptance of Appointment by Successor |
|
|
37 |
|
Section 6.12. |
|
Merger, Conversion, Consolidation or Succession to Business |
|
|
37 |
|
Section 6.13. |
|
Preferential Collection of Claims Against Company |
|
|
38 |
|
Section 6.14. |
|
Appointment of Authenticating Agent |
|
|
38 |
|
|
|
ARTICLE VII HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY |
|
|
39 |
|
|
|
|
Section 7.01. |
|
Company to Furnish Trustee Names and Addresses of Holders |
|
|
39 |
|
Section 7.02. |
|
Preservation of Information; Communications to Holders |
|
|
39 |
|
Section 7.03. |
|
Reports by Trustee |
|
|
39 |
|
Section 7.04. |
|
Reports by Company |
|
|
40 |
|
|
|
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
|
|
40 |
|
|
|
|
Section 8.01. |
|
Company May Consolidate, Etc., Only on Certain Terms |
|
|
40 |
|
Section 8.02. |
|
Successor Substituted |
|
|
40 |
|
iii
|
|
|
|
|
|
|
|
|
ARTICLE IX SUPPLEMENTAL INDENTURES |
|
|
41 |
|
|
|
|
Section 9.01. |
|
Supplemental Indentures Without Consent of Holders |
|
|
41 |
|
Section 9.02. |
|
Supplemental Indentures with Consent of Holders |
|
|
42 |
|
Section 9.03. |
|
Execution of Supplemental Indentures |
|
|
43 |
|
Section 9.04. |
|
Effect of Supplemental Indentures |
|
|
43 |
|
Section 9.05. |
|
Conformity with Trust Indenture Act |
|
|
43 |
|
Section 9.06. |
|
Reference in Securities to Supplemental Indentures |
|
|
43 |
|
|
|
ARTICLE X Covenants |
|
|
43 |
|
|
|
|
Section 10.01. |
|
Payment of Principal, Premium and Interest |
|
|
43 |
|
Section 10.02. |
|
Maintenance of Office or Agency |
|
|
43 |
|
Section 10.03. |
|
Money for Securities Payments to Be Held in Trust |
|
|
44 |
|
Section 10.04. |
|
Statement by Officers as to Default |
|
|
45 |
|
Section 10.05. |
|
Existence |
|
|
45 |
|
Section 10.06. |
|
Waiver of Certain Covenants |
|
|
45 |
|
|
|
ARTICLE XI REDEMPTION OF SECURITIES |
|
|
45 |
|
|
|
|
Section 11.01. |
|
Applicability of Article |
|
|
45 |
|
Section 11.02. |
|
Election to Redeem; Notice to Trustee |
|
|
45 |
|
Section 11.03. |
|
Selection by Trustee of Securities to Be Redeemed |
|
|
46 |
|
Section 11.04. |
|
Notice of Redemption |
|
|
46 |
|
Section 11.05. |
|
Deposit of Redemption Price |
|
|
47 |
|
Section 11.06. |
|
Securities Payable on Redemption Date |
|
|
47 |
|
Section 11.07. |
|
Securities Redeemed in Part |
|
|
47 |
|
|
|
ARTICLE XII SINKING FUNDS |
|
|
47 |
|
|
|
|
Section 12.01. |
|
Applicability of Article |
|
|
47 |
|
Section 12.02. |
|
Satisfaction of Sinking Fund Payments with Securities |
|
|
48 |
|
Section 12.03. |
|
Redemption of Securities for Sinking Fund |
|
|
48 |
|
|
|
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE |
|
|
48 |
|
|
|
|
Section 13.01. |
|
Companys Option to Effect Defeasance or Covenant Defeasance |
|
|
48 |
|
Section 13.02. |
|
Defeasance and Discharge |
|
|
48 |
|
Section 13.03. |
|
Covenant Defeasance |
|
|
49 |
|
Section 13.04. |
|
Conditions to Defeasance or Covenant Defeasance |
|
|
49 |
|
Section 13.05. |
|
Deposited Money and U.S. Government obligations to Be Held in Trust; Miscellaneous Provisions |
|
|
51 |
|
Section 13.06. |
|
Reinstatement |
|
|
51 |
|
|
|
ARTICLE XIV SUBORDINATION |
|
|
51 |
|
|
|
|
Section 14.01. |
|
Applicability of Article; Agreement to Subordinate |
|
|
51 |
|
Section 14.02. |
|
Liquidation, Dissolution, Bankruptcy |
|
|
52 |
|
Section 14.03. |
|
Default on Senior Indebtedness |
|
|
52 |
|
Section 14.04. |
|
Acceleration of Payment of Debt Securities |
|
|
53 |
|
Section 14.05. |
|
When Distribution Must Be Paid Over |
|
|
53 |
|
Section 14.06. |
|
Subrogation |
|
|
53 |
|
Section 14.07. |
|
Relative Rights |
|
|
53 |
|
Section 14.08. |
|
Subordination May Not Be Impaired by Company |
|
|
53 |
|
Section 14.09. |
|
Rights of Trustee and Paying Agent |
|
|
53 |
|
Section 14.10. |
|
Distribution or Notice to Representative |
|
|
54 |
|
iv
|
|
|
|
|
|
|
Section 14.11. |
|
Article XIV Not to Prevent Defaults or Limit Right to Accelerate |
|
|
54 |
|
Section 14.12. |
|
Trust Moneys Not Subordinated |
|
|
54 |
|
Section 14.13. |
|
Trustee Entitled to Rely |
|
|
54 |
|
Section 14.14. |
|
Trustee to Effectuate Subordination |
|
|
54 |
|
Section 14.15. |
|
Trustee Not Fiduciary for Holders of Senior Indebtedness |
|
|
54 |
|
Section 14.16. |
|
Reliance by Holders of Senior Indebtedness on Subordination Provisions |
|
|
55 |
|
Note: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.
v
MIDCOAST ENERGY PARTNERS, L.P.
Certain Sections of this Subordinated Indenture relating to Sections 310 318, inclusive,
of the Trust Indenture Act of 1939, as amended
|
|
|
|
|
Trust Indenture Act Section |
|
Indenture Section |
|
310(a)(1) |
|
|
6.09 |
|
(a)(2) |
|
|
6.09 |
|
(a)(3) |
|
|
N.A. |
|
(a)(4) |
|
|
N.A. |
|
(a)(5) |
|
|
6.09 |
|
(b) |
|
|
6.08, 6.10 |
|
(c) |
|
|
N.A. |
|
311(a) |
|
|
6.13 |
|
(b) |
|
|
6.13 |
|
(c) |
|
|
N.A. |
|
312(a) |
|
|
7.01, 7.02 |
|
(b) |
|
|
7.02 |
|
(c) |
|
|
7.02 |
|
313(a) |
|
|
7.03 |
|
(b)(1) |
|
|
N.A. |
|
(b)(2) |
|
|
7.03 |
|
(c) |
|
|
7.03 |
|
(d) |
|
|
7.03 |
|
314(a) |
|
|
7.04 |
|
(a)(4) |
|
|
1.04, 10.04 |
|
(b) |
|
|
N.A. |
|
(c)(1) |
|
|
1.02 |
|
(c)(2) |
|
|
1.02 |
|
(c)(3) |
|
|
N.A. |
|
(d) |
|
|
N.A. |
|
(e) |
|
|
1.02 |
|
(f) |
|
|
N.A. |
|
315(a) |
|
|
6.01 |
|
(b) |
|
|
6.02 |
|
(c) |
|
|
6.01 |
|
(d) |
|
|
6.01 |
|
(e) |
|
|
5.14 |
|
316(a)(last sentence) |
|
|
1.06 |
|
(a)(1)(A) |
|
|
5.02, 5.12 |
|
(a)(1)(B) |
|
|
5.13 |
|
(a)(2) |
|
|
N.A. |
|
(b) |
|
|
5.08 |
|
(c) |
|
|
1.04 |
|
317(a)(1) |
|
|
5.03 |
|
(a)(2) |
|
|
5.04 |
|
vi
|
|
|
|
|
(b) |
|
|
10.03 |
|
318(a) |
|
|
1.07 |
|
(b) |
|
|
N.A. |
|
(c) |
|
|
1.07 |
|
* |
N.A. means inapplicable. |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
vii
SUBORDINATED INDENTURE
THIS SUBORDINATED INDENTURE, dated as of , 20 , between Midcoast Energy
Partners, L.P., a Delaware limited partnership (herein called the Company), having its corporate office at 1100 Louisiana, Suite 3300, Houston, Texas 77002, and U.S. Bank National Association, as trustee (herein called the
Trustee).
RECITALS
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the
Companys subordinated debentures, notes or other evidences of indebtedness (herein called the Securities), to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the Company in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE I. DEFINITIONS AND OTHER
PROVISIONS OF GENERAL
APPLICATION
Section 1.01 Definitions.
For all
purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
|
(a) |
the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; |
|
(b) |
all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; |
|
(c) |
all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States of America (including, if applicable, International
Financial Reporting Standards) as in effect from time to time; |
|
(d) |
unless the context otherwise requires, any reference to an Article or a Section refers to an Article or a Section, as the case may be, of this Indenture; |
|
(e) |
the words herein, hereof and hereunder and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;
|
|
(f) |
or is not exclusive, and including means including without limitation, including but not limited to or words of similar import; and |
|
(g) |
if the applicable series of Securities are subordinated pursuant to Article XIV, unsecured Debt shall not be deemed to be subordinate or junior to secured Debt merely by virtue of its nature as unsecured Debt.
|
Act, when used with respect to any Holder, has the meaning specified in Section 1.04.
1
Affiliate of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, control when used with respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms controlling and controlled have meanings correlative to the foregoing.
Applicable Procedures of a Depositary means, with respect to any matter at any time, the policies and procedures of such
Depositary, if any, that are applicable to such matter at such time.
Authenticating Agent means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.
Board of
Directors means either the board of directors of Midcoast Holdings, L.L.C., the general partner of the Company or any duly authorized committee of that board.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant Secretary of the general partner of the
Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification and delivered to the Trustee.
Business Day, when used with respect to any Place of Payment or other location, means, except as otherwise provided or
contemplated by Section 3.01 with respect to any series of Securities, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in either (a) that Place of Payment or (b) in Houston, Texas
are authorized or obligated by law or executive order or regulation to close.
Commission means the Securities and Exchange
Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
Company means the Person named as the Company in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter Company shall mean such successor Person.
Company Request or Company Order means a written request or order signed in the name of the Company by the President,
a Vice President, the Treasurer, an Assistant Treasurer, a Secretary or an Assistant Secretary of the general partner of the Company, or any other officer or officers of the general partner of the Company designated in writing by or pursuant to
authority of the Board of Directors, and delivered to the Trustee.
Corporate Trust Office means the designated office of the
Trustee at which at any particular time its corporate trust business shall be administered. As of the date hereof, the Corporate Trust Office of the initial Trustee shall be 1349 West Peachtree Street, N.W., Suite 1050, Atlanta, Georgia 30309,
Attention: Global Corporate Trust Services); provided, however, for all purposes for which a Corporate Trust Office of the initial Trustee, in any of its capacities, in New York, New York is herein referred, Corporate Trust
Office shall mean the initial Trustees office at 100 Wall Street, 16th Floor, New York, New York 10015, Attention: Global Corporate Trust Services.
corporation means a corporation, association, limited liability company, company, joint-stock company or business trust.
Covenant Defeasance has the meaning specified in Section 13.03.
Debt of any Person at any date means any obligation created or assumed by such Person for the repayment of borrowed money and any
guarantee of payment therefor.
2
Defaulted Interest has the meaning specified in Section 3.07.
Defeasance has the meaning specified in Section 13.02.
Depositary means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global
Securities, a clearing agency that is designated to act as Depositary for such Securities as contemplated by Section 3.01.
Designated Senior Indebtedness means any Senior Indebtedness so designated, as provided in Section 3.01, in respect of any
series of Securities.
Event of Default has the meaning specified in Section 5.01.
Exchange Act means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to
time.
Expiration Date has the meaning specified in Section 1.04.
Global Security means a Security that evidences all or part of the Securities of any series and bears the legend set forth in
Section 2.04 (or such legend as may be specified as contemplated by Section 3.01 for such Securities).
Holder means
a Person in whose name a Security is registered in the Security Register.
Indenture means this instrument as originally
executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term Indenture shall also include the terms of particular series of
Securities established as contemplated by Section 3.01.
interest, when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
Interest Payment Date,
when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
Investment
Company Act means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.
mandatory sinking fund payment has the meaning specified in Section 12.01.
Maturity, when used with respect to any Security, means the date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
Notice of Default means a written notice of the kind specified in Section 5.01(d).
Officers Certificate means a certificate signed by the President or a Vice President of the general partner of the Company
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the general partner of Company or any other officer or officers of the general partner of the Company designated in writing by or pursuant to authority of the
Board of Directors and delivered to the Trustee. The Officers Certificate given pursuant to Section 10.04 shall be signed by the principal executive, financial or accounting officer of the Company.
3
Opinion of Counsel means a written opinion of counsel, who may be an employee of, or
outside counsel to, but does not have to be counsel for, the Company, and who shall be acceptable to the Trustee, which acceptance shall not be unreasonably withheld.
optional sinking fund payment has the meaning specified in Section 12.01.
Original Issue Discount Security means any Security which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
Outstanding, when used
with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled and delivered to the Trustee or delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor has been made;
(3) Securities, except to the extent
provided in Sections 13.02 and 13.03 respectively, as to which the Company has effected Defeasance pursuant to Section 13.02 or Covenant Defeasance pursuant to Section 13.03; and
(4) Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be
deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 5.02, (B) if, as of such date, the principal
amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 3.01, (C) the
principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by
Section 3.01, of the principal amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent, waiver or other action, only Securities which the Trustee knows to be so owned shall be so disregarded. The Trustee shall be protected in relying on an Officers Certificate or other evidence
satisfactory to it in determining ownership. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgees right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
Paying Agent means any Person authorized by the Company to pay the principal of or any premium or interest on any Securities on
behalf of the Company.
4
Person means any individual, corporation, company (including a limited liability
company), partnership (including a limited partnership), joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.
Place of Payment, when used with respect to the Securities of any series, means the place or places where the principal of and any
premium and interest on the Securities that series are payable as specified or contemplated by Section 3.01.
Predecessor
Security of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered
under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
Redemption Date, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
Redemption Price, when used with respect to any Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
Regular Record Date for the interest payable on any Interest Payment Date on the
Securities of any series means the date specified for that purpose as contemplated by Section 3.01.
Representative means
the trustee, agent or representative (if any) for an issue of Senior Indebtedness, and, in the absence of any such trustee, agent or representative, it means the holder or holders of such issue.
Responsible Officer, when used with respect to the Trustee, means the chairman or any vice-chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any Vice President, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier,
any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject and who shall have direct responsibility for the
administration of this Indenture.
Securities has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.
Securities Act means the Securities Act
of 1933 and any statute successor thereto, in each case as amended from time to time.
Security Register and Security
Registrar have the respective meanings specified in Section 3.05.
Senior Indebtedness unless otherwise provided
with respect to the Securities of a series as contemplated by Section 3.01, means (1) all Debt of the Company, whether currently outstanding or hereafter issued, unless, by the terms of the instrument creating or evidencing such Debt, it
is provided that such Debt is subordinate or not superior in right of payment to the Securities, or to other Debt that is pari passu with or subordinated to the Securities, and (2) any modifications, refunding, deferrals, renewals, or
extensions of any such Debt or securities, notes or other evidence of Debt issued in exchange for such Debt; provided that in no event shall Senior Indebtedness include (a) Debt evidenced by the Securities, (b) Debt of the
Company owed or owing to any Subsidiary of the Company, (c) Debt to trade creditors, or (d) any liability for taxes owed or owing by the Company.
Special Record Date for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.
5
Stated Maturity, when used with respect to any Security or any installment of
principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
Subordinated Securities has the meaning specified in Section 14.01.
Subsidiary of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of
which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a
contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.
Trust Indenture Act means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed, except
as otherwise provided in Section 9.05; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, Trust Indenture Act means, to the extent required by any such amendment, the Trust Indenture Act
of 1939 as so amended.
Trustee means the Person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter Trustee shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one
such Person, Trustee as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
U.S. Government Obligation has the meaning specified in Section 13.04.
Vice President, when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title vice president.
Section 1.02 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take or refrain from taking any action under any provision of this Indenture,
the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act; provided, however, that no opinion shall be required in connection with the issuance of Securities that are part of any series
as to which such an opinion has been furnished. Each such certificate and opinion shall be given in the form of an Officers Certificate, if to be given by an officer of the Company and an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate
or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided in Section 10.04) shall include,
(a) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
6
Section 1.03 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any
certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any
Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.04 Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given,
made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the Act of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
Without limiting the generality of the foregoing, a Holder, including a Depositary that is a Holder of a Global Security, may make, give or
take, by a proxy or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and a Depositary that is a Holder of a
Global Security may provide its proxy or proxies to the beneficial owners of interests in any such Global Security.
The fact and date of
the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that
the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership, principal amount and serial numbers of Securities held by any Person, and the date of commencement of such Persons
holding the same, shall be proved by the Security Register.
7
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder
of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be
done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
The Company
may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of Securities of such series, but the Company shall have no obligation to do so; provided that the Company may not set a record date for, and the provisions of this paragraph shall
not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on
such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set
forth in Section 1.06.
The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding
Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.02, (iii) any request to institute proceedings referred to in
Section 5.07(b) or (iv) any direction referred to in Section 5.12, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on
such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to
this paragraph, the Trustee, at the Companys expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 1.06.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the Expiration Date and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06, on or prior to the then existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 180th day following such record date as the Expiration Date with respect
thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day following the applicable record date.
8
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such
principal amount.
Section 1.05 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing (which may be by facsimile or electronic transmission) to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of the Companys principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to
the Trustee by the Company.
Section 1.06 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at its address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 1.07 Conflict with Trust Indenture Act.
This Indenture is subject to the provisions of the Trust Indenture Act that are required to be a part of this Indenture and, to the extent
applicable, shall be governed by such provisions. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act or with another provision hereof which is required under the Trust Indenture Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or excluded, as the case may be.
Section 1.08 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.09 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
9
Section 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the holders of Senior Indebtedness (to the extent herein expressly provided) and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture, except as may otherwise be expressly provided
pursuant to Section 3.01 with respect to any specific Securities.
Section 1.12 Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
Section 1.13 Legal Holidays.
In any
case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment or other location, then (notwithstanding any other provision of this Indenture or of the Securities (other
than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made at such Place of Payment or other location on such date, but
may be made on the next succeeding Business Day at such Place of Payment or other location with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity.
Section 1.14 Incorporators, Shareholders, Directors, Officers and Employees of the Company Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as such, or against any past, present or future partner, manager, member director, officer, employee, unitholder or equityholder as such, of the Company or its general partner, or of any
successor, either directly or through the Company or its general partner or any successor of the Company or its general partner, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or
equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities. The foregoing does not change any
obligation that the Companys general partner may have to restore any negative balance in its capital account (maintained pursuant to the Companys partnership agreement) upon liquidation of its interest in the Company. [Further, the
foregoing waiver and release may not be effective under federal securities laws, however, and it is the view of the Commission that such a waiver and release is against public policy.]
ARTICLE II. SECURITY FORM
Section 2.01
Forms Generally.
The Securities of each series and the Trustees certificate of authentication shall be in substantially the
forms set forth in this Article, or in such other form as shall be established by or pursuant to a Board Resolution and, subject to Section 3.03, to the extent established pursuant to rather than set forth in a Board Resolution, in an
Officers Certificate or Company Order setting forth, or determining the manner of, such establishment, or in one
10
or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with applicable laws or the rules
of any securities exchange or automated quotation system on which the Securities of such series may be listed or traded or of any Depositary therefor or as may, consistently herewith, be determined by the officer executing such Securities, as
evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary
of the general partner of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as
determined by the officer executing such Securities, as evidenced by their execution of such Securities.
Section 2.02 Form of Face of Security.
[Insert any legend required by the United States Internal Revenue Code and the regulations thereunder.]
[If a Global Security, insert legend required by Section 2.04 of the Indenture] [If applicable, insert UNLESS THIS SECURITY
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Midcoast Energy Partners, L.P.
Midcoast Energy Partners, L.P., a Delaware limited partnership (herein called the Company, which
term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to , or registered assigns, the principal sum of
United States Dollars [state other currency] on [if the Security is to bear interest prior to Maturity, insert , and to pay interest thereon from
or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semiannually on
and in each year, commencing ,
and at the Maturity thereof, at the rate of % per annum, until the principal hereof is paid or made available for payment. [If applicable, insert In the event that any
date on which interest is payable on this Security is not a Business Day, then a payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of
any such delay) with the same force and effect as if made on the date the payment was originally payable.] The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will as provided in such Indenture, be paid to
the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the
or (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any
such interest not so
11
punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange or automated quotation system on which the Securities of this series may be listed or traded,
and upon such notice as may be required by such exchange or automated quotation system, all as more fully provided in such Indenture].
[If the Security is not to bear interest prior to Maturity, insert The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any overdue premium shall bear interest at the rate of
% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for
payment. Interest on any overdue principal or premium shall be payable on demand.]
[If a Global Security, insert Payment of the
principal of [(and premium, if any)] and [if applicable, insert any such] interest on this Security [may be made pursuant to the Applicable Procedures of the Depositary as permitted in such Indenture][will be made by transfer of immediately
available funds to a bank account in designated by the Holder in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts [state other currency]].]
[If a definitive Security, insert ] Payment of the principal of (and premium, if any) and [if applicable, insert any such]
interest on this Security will be made at the office or agency of the Company maintained for that purpose in [in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts ] [state other currency] [or subject to any laws or regulations applicable thereto and to the right of the Company (as provided in the Indenture) to rescind the designation of
any such Paying Agent, at the [main] offices of in and
in , or at such other offices or agencies as the Company may designate, by [United States Dollar] [state
other currency] check drawn on, or transfer to a [United States Dollar] account maintained by the payee with, a bank in The City of New York [ ] (so long as the applicable Paying
Agent has received proper transfer instructions in writing at least [ ] days prior to the payment date)] [if applicable, insert ; provided, however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register] [or by transfer to a [United States Dollar] [state other currency] account maintained by the payee with a bank in The City of New York
[state other Place of Payment] (so long as the applicable Paying Agent has received proper transfer instructions in writing by the Record Date prior to the applicable Interest Payment Date)].]
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
Midcoast Energy Partners, L.P.,
By Midcoast Holdings, L.L.C., its general partner
12
Section 2.03 Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company (herein called the Securities), issued and to be
issued in one or more series under a Subordinated Indenture, dated as of (herein called the Indenture, which term shall have the meaning assigned to it in such
instrument), between the Company and , as Trustee (herein called the Trustee, which term includes any successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee, the holders of Senior Indebtedness and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert , limited in aggregate principal amount to
$ ].
[If applicable, insert The Securities of this series
are subject to redemption upon not less than 30 nor more than 60 days notice by mail, [if applicable, insert (1) on in any year commencing with the year and ending
with the year through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [if applicable, insert on or after
, 20 ], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If
redeemed [if applicable, insert on or before , %, and if redeemed] during the 12-month period beginning
of the years indicated,
|
|
|
|
|
|
|
Year |
|
Redemption Price |
|
Year |
|
Redemption Price |
and thereafter at a
Redemption Price equal to % of the principal amount, together in the case of any such redemption [if applicable, insert(whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable,
insert The Securities of this series are subject to redemption upon not less than 30 nor more than 60 days notice by mail, (1) on in any year commencing with
the year and ending with the year through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed
as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert on or after ], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12 month period beginning
of the years indicated,
|
|
|
|
|
Year |
|
Redemption Price For Redemption Through Operation of the Sinking Fund |
|
Redemption Price For Redemption Otherwise Than Through Operation of the Sinking Fund |
13
and thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption
(whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert Notwithstanding the foregoing, the Company may not, prior to
, redeem any Securities of this series as contemplated by [if applicable, insert Clause (2) of] the preceding paragraph as a part of or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance with generally accepted financial practice) of less than % per annum.]
[If applicable, insert The sinking fund for this series provides for the redemption on
in each year beginning with the year and ending with the year
of [if applicable, insert not less than $ (mandatory sinking fund) and not more than]
$ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [if applicable, insert mandatory]
sinking fund payments may be credited against subsequent [if applicable, insert mandatory] sinking fund payments otherwise required to be made [if applicable, insert, in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insertIn the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert The Indenture contains provisions for defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this Security] [, in each case] upon compliance with certain conditions set forth in the Indenture.]
[If applicable, insert the Securities of this series are not redeemable prior to Stated Maturity.]
[If the Security is not an Original Issue Discount Security, insert If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to insert formula for determining the amount.
Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of
the Companys obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations
of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of a majority in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
14
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall
not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a
continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding
a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 90 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this
Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
If so provided pursuant to the terms of any specific Securities, the above-referenced provisions of the Indenture regarding the ability of
Holders to waive certain defaults, or to request the Trustee to institute proceedings (or to give the Trustee other directions) in respect thereof, may be applied differently with regard to such Securities.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall, without the consent of the Holder, alter or
impair the obligation of the Company which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
[If a Global Security, insert This Global Security or portion hereof may not be exchanged for definitive Securities of this series
except in the limited circumstances provided in the Indenture.
The holders of beneficial interests in this Global Security will not be
entitled to receive physical delivery of definitive Securities except as described in the Indenture and will not be considered the Holders thereof for any purpose under the Indenture.] [If a definitive Security, insert As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place
where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder hereof
or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or
transferees.]
The Securities of this series are issuable only in registered form without coupons in denominations of [U.S.]
$ [state other currency] and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested in writing by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer and notice to the Trustee thereof the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
15
[If this Security is a Global Security, insert This Security is a Global Security and is
subject to the provisions of the Indenture relating to Global Securities, including the limitations in Section 3.05 thereof on transfers and exchanges of Global Securities.]
This Security is subordinated in right of payment to the Senior Indebtedness as more fully provided in Article XIV of the Indenture.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
[If a Definitive Security, insert as a separate page -
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please Print or Typewrite Name and Address of Assignee) the within instrument of MIDCOAST ENERGY PARTNERS, L.P. and does hereby irrevocably constitute and appoint
Attorney to transfer said instrument on the books of the within-named Company, with full power of substitution in the premises.
Please Insert Social Security or
Other Identifying Number of
Assignee:
|
Signature Guarantee: |
|
(Participant in a Recognized Signature Guaranty Medallion Program) |
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or any change whatever.]
Section 2.04 Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced thereby, every Global Security authenticated and
delivered hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN
THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF,
THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
16
If Securities of a series are issuable in whole or in part in the form of one or more Global
Securities, as contemplated by Section 3.01, then, notwithstanding Clause (i) of Section 3.01 and the provisions of Section 3.02, any Global Security shall represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced
or increased, as the case may be, to reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any reduction or increase in the amount, of Outstanding Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in a Company Order. Subject to the provisions of Sections 3.03, 3.04 and 3.05, the Trustee shall deliver and redeliver any Global Security in the manner and upon
instructions given by the Person or Persons specified therein or in the applicable Company Order. Any instructions by the Company with respect endorsement or delivery or redelivery of a Global Security shall be in a Company Order (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel).
The provisions of the last sentence of
Section 3.03 shall apply to any Security represented by a Global Security if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Global Security together with a Company Order (which need not comply
with Section 1.02 and need not be accompanied by an Opinion of Counsel) with regard to the reduction or increase, as the case may be, in the principal amount of Securities represented thereby, together with the written statement contemplated by
the last sentence of Section 3.03.
Section 2.05 Form of Trustees Certificate of Authentication.
The Trustees certificates of authentication shall be in substantially the following form:
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the debt Securities of the series designated herein and referred to in the within-mentioned Indenture.
|
|
|
|
|
|
|
|
|
|
As Trustee |
|
|
|
|
|
By: |
|
|
|
|
Authorized Signatory |
ARTICLE III. THE SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution and, subject to
Section 3.03, to the extent established pursuant to rather than set forth in a Board Resolution, in an Officers Certificate or Company Order setting forth, or determining the manner of, such establishment, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any series,
(a) the form and title of the Securities of the series
(which shall distinguish the Securities of the series from Securities of any other series);
17
(b) any limit upon the aggregate principal amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06
or 11.07 and except for any Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder);
(c) the issue price or prices of originally issued Securities, expressed as a percentage of the principal amount, and the original issue date;
(d) the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(e) the date or
dates on which the Securities will be issued and on which principal of, and premium, if any, on, any Securities of the series is payable or the method of determination thereof;
(f) the rate or rates (which may be fixed or variable, or combination thereof) at which any Securities of the series shall bear interest, if
any, or the method of determination thereof, the date or dates from which any such interest shall accrue, or the method of determination thereof, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for
any such interest payable on any Interest Payment Date;
(g) the place or places where, subject to the provisions of Section 10.02,
the principal of and any premium and interest on any Securities of the series shall be payable, Securities of the series may be surrendered for registration or transfer, Securities of the series may be surrendered for exchange, and notices and
demands to or upon the Company in respect of the Securities of the series and this Indenture may be served;
(h) the period or periods, if
any, within which, the price or prices at which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any
election by the Company to redeem the Securities shall be evidenced;
(i) the obligation, if any, and the option, if any, of the Company to
redeem, purchase or repay any Securities of the series pursuant to any sinking fund or analogous provisions or upon the happening of a specified event or at the option of the Holder thereof and the period or periods within which, the price or prices
at which and the terms and conditions upon which any Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation or option;
(j) if other than a denomination equal to the U.S. Dollar equivalent of EUR 100,000 or an integral multiple of $1,000 in excess thereof
the denominations in which any Securities of the series shall be issuable;
(k) if the debt Securities will be issued in registered or
bearer form or both and, if in bearer form, the related terms and conditions and any limitations on issuance of such bearer debt Securities (including exchange for registered debt Securities of the same series);
(l) if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index
including an index based on a currency or currencies other than in which the Securities of that series are payable or pursuant to a formula, the manner in which such amounts shall be determined;
(m) if other than the currency of the United States of America, the currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be denominated, payable, redeemable or purchasable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for purposes
of the definition of Outstanding in Section 1.01;
18
(n) if the principal of or any premium or interest on any Securities of the series is to be
payable, redeemable or purchasable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, redeemable, or purchasable, the
currency, currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, redeemable or purchasable, the periods within which and the terms and conditions upon
which such election is to be made and the amount so payable, redeemable or purchasable (or the manner in which such amount shall be determined);
(o) if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or provable in bankruptcy pursuant to Section 5.04 or the method of determination thereof;
(p) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any
Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(q) if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 13.02 or
Section 13.03 or both such Sections or if other than as provided in Sections 13.02 or 13.03, the terms and conditions upon which and the manner in which such series of Securities may be defeased or discharged, and, if other than by a Board
Resolution, the manner in which any election by the Company to defease or discharge such Securities shall be evidenced;
(r) if applicable,
that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by
any such Global Security in addition to or in lieu of that set forth in Section 2.04, information with respect to book-entry procedures, and any circumstances in addition to or in lieu of those set forth in Section 3.05 in which any such
Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a
nominee thereof;
(s) if the debt Security is issued as an original issue discount debt Security, and if so, the yield to maturity;
(t) any deletion from, addition to or change in the Events of Default which applies to any Securities of the series and any change in the right
of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 5.02;
(u) any addition to or change in the covenants set forth in Article X which applies to Securities of the series or in any defined term used in
either Article X;
(v) the subordination, if any, of the Securities of the series pursuant to Article XIV and any changes or additions to
Article XIV or designation of any Designated Senior Indebtedness, or defined terms used in connection therewith;
(w) the right, if any, of
the Company to defer payments of interest by extending the interest payment periods and specify the duration of such extension, the Interest Payment Dates on which such interest shall be payable and whether and under what circumstances additional
interest on amounts deferred shall be payable;
(x) if other than the Trustee, the identity of any other trustee, the Security Registrar
and any Paying Agent; and
(y) any other terms of the Securities of the series (which terms shall not be prohibited by the provisions of
this Indenture).
19
All Securities of any one series shall be substantially identical except as to denomination and
except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 3.03) set forth, or determined in the manner provided, in the Officers Certificate referred to above or in any such
indenture supplemental hereto. Accordingly, the terms of any Security of a series may differ from the terms of other Securities of the same series, if and to the extent provided pursuant to this Section 3.01. The matters referenced in any or
all of Clauses (a) through (x) above may be established and set forth or determined as aforesaid with respect to all or any specific Securities of a series (in each case to the extent permitted by the Trust Indenture Act).
Any such Board Resolution or Officers Certificate referred to above with respect to Securities of any series filed with the Trustee on
or before the initial issuance of the Securities of such series shall be incorporated herein by reference with respect to Securities of such series and shall thereafter be deemed to be a part of the Indenture for all purposes relating to Securities
of such series as fully as if such Board Resolution or Officers Certificate were set forth herein in full.
All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for increases in the aggregate principal amount of such series of Securities and issuances of additional
Securities of such series or for the establishment of additional terms with respect to the Securities of such series.
If any of the terms
of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the general partner of the Company and delivered to the
Trustee at or prior to the delivery of the Officers Certificate setting forth the terms of the series.
Section 3.02 Denominations.
The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as
contemplated by Section 3.01. The Securities of each series shall be issuable in a minimum denomination of $100,000 or an integral multiple of $1,000 in excess thereof.
Section 3.03 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by the President or one of the Vice Presidents of the general partner of the Company
(or any other officer of the general partner of the Company designated in writing by or pursuant to authority of the Board of Directors and delivered to the Trustee from time to time). The signature of any of these officers on the Securities may be
manual or facsimile.
The Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of
the general partner of the Company shall bind the Company notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been established by or pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 3.01, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to, Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating,
20
(a) if the form of such Securities has been established by or pursuant to Board Resolution as
permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture;
(b) if the terms
of such Securities have been established by or pursuant to Board Resolution as permitted by Section 3.01, that such terms have been established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel will constitute binding obligations of the Company enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors rights and to general equity principles or other customary exceptions.
If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture in accordance with the Board Resolutions will affect the Trustees own rights, duties, obligations, responsibilities or immunities under the Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary, unless the Trustee reasonably determines otherwise, for the Company to deliver the Officers Certificate otherwise required pursuant to
Section 3.01 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication
upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
Section 3.04 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
21
Section 3.05 Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office or other designated office of the Trustee a register (the register maintained
in such office being herein sometimes collectively, referred to as the Security Register) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers
of Securities entitled to registration or transfer as provided herein. The Trustee is hereby appointed Security Registrar for the purpose of registering Securities and transfers of Securities as herein provided. The Company may at any
time replace such Security Registrar, change such office or agency or act as its own Security Registrar. The Company will give prompt written notice to the Trustee of any change of the Security Registrar or of the location of such office or agency.
At all reasonable times the Security Register shall be available for inspection by the Trustee.
Upon surrender for registration of
transfer of any Security of a series at the office or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount.
At the
option of the Holder, Securities of any series (except a Global Security) may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, neither the Company nor the Trustee
shall be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of any such Securities selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing, or (B) to register the transfer of or exchange any Security so selected
for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (a),
(b), (c) and (d) below shall apply only to Global Securities:
(a) Each Global Security authenticated under this Indenture shall
be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for
all purposes of this Indenture.
22
(b) Notwithstanding any other provision in this Indenture, and subject to such applicable
provisions, if any, as may be specified as contemplated by Section 3.01, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee thereof unless (1) such Depositary has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or has ceased to be a
clearing agency registered under the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days after the Companys receipt of such notice, (2) there shall have occurred and be continuing an Event of Default
with respect to such Global Security and the Security Registrar has received a request from the Depositary to issue certificated securities in lieu of the Global Security, (3) the Company shall determine in its sole discretion that Securities
of a series issued in global form shall no longer be represented by a Global Security, or (4) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by
Section 3.01, then in any such case, such Global Security may be exchanged by such Depositary for definitive Securities of the same series, of any authorized denomination and of a like aggregate principal amount and tenor, registered in the
names of, and the transfer of such Global Security or portion thereof may be registered to, such Persons as such Depositary shall direct. If the Company designates a successor Depositary pursuant to Clause (1) above, such Global Security shall
promptly be exchanged in whole for one or more other Global Securities registered in the name of the successor Depositary, whereupon such designated successor shall be the Depositary for such successor Global Security or Global Securities and the
provisions of Clauses (a), (b), (c) and (d) of this Section shall continue to apply thereto.
(c) Subject to Clause
(b) above and to such applicable provisions, if any, as may be specified as contemplated by Section 3.01, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a
Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(d)
Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, together with such security or indemnity as may be required by the Company or the
Trustee to save each of them and any agent of either of them harmless, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously Outstanding. If, after the delivery of such new Security, a bona fide purchaser of the original Security in lieu of which such new Security was issued presents for payment or
registration such original Security, the Trustee shall be entitled to recover such new Security from the party to whom it was delivered or any party taking therefrom, except a bona fide purchaser, and shall be entitled to recover upon the security
or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Company and the Trustee in connection therewith.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
23
Upon the issuance of any new Security, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section
3.07 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called Defaulted Interest) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 1.06, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (b).
(b) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.05,
each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
24
For each series of Securities, the Company shall, prior to Noon New York City time, on each
payment date for principal and premium, if any, and interest, if any, deposit with the Trustee money in immediately available funds sufficient to make cash payments due on the applicable payment date.
Section 3.08 Persons Deemed Owners.
Except as otherwise contemplated by Section 3.01 with respect to any series of Securities, prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any
premium and (subject to Sections 3.05 and 3.07) any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its behalf by a Depositary shall
have any rights under this Indenture with respect to such Global Security, and such Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the owner of such Global Security for all purposes whatsoever.
None of the Company, the Trustee, nor any agent of the Company or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or
for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 3.09 Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the Trustee and, if not already cancelled, shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as directed by a Company Order, and the Trustee shall thereafter deliver to the Company a certificate with respect to such deposition.
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11 CUSIP Numbers.
The Company in issuing the Securities may use CUSIP numbers (in addition to the other identification numbers printed on the
Securities), if then in use, and, if so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of
such CUSIP numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such CUSIP numbers. The Company will promptly notify the Trustee of any change in the CUSIP numbers.
25
ARTICLE IV SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further effect with respect to Securities of any series (except as to any surviving
rights of registration of transfer or exchange of Securities herein expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to
such Securities, when
(a) either
(1) all such Securities theretofore authenticated and delivered (other than (i) such Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.06 and (ii) such Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee cancelled or for cancellation; or
(2)
all such Securities not theretofore delivered to the Trustee as cancelled or for cancellation
i. have become due and payable, or
ii. will become due and payable at their Stated Maturity within one year, or
iii. are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company,
and the Company in the case of (i), (ii) or (iii) above, has deposited or caused
to be deposited with the Trustee, as trust funds in trust for the purpose, an amount of money in the currency or currency units in which such Securities are payable sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee as cancelled or for cancellation, for principal and any premium and interest to the date of such deposit (in the case of such Securities which have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(b) the Company has paid or caused to be paid, or otherwise made provision for the payment of, all other sums
payable hereunder by the Company with respect to such Securities; and
(c) the Company has delivered to the Trustee an Officers
Certificate and an Opinion of Counsel each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to Securities of any series, the obligations of the Company to
the Trustee under Section 6.07, the obligations of the Trustee to any Authenticating Agent under Section 6.14 and the right of the Trustee to resign under Section 6.10 shall survive, and, if money shall have been deposited with the
Trustee pursuant to subclause (2) of Clause (a) of this Section, the obligations of the Trustee under Sections 4.02, 6.06, 7.01 and 10.02 and the last paragraph of Section 10.03 shall survive.
Section 4.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 shall
be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee. All money deposited with the Trustee pursuant to Section 4.01 (and held by it or any
Paying Agent) for the payment of such Securities
26
subsequently converted into other property shall be returned to the Company upon Company Request. The Company may direct by a Company Order the investment of any money deposited with the Trustee
pursuant to Section 4.01, without distinction between principal and income, in (1) United States Treasury Securities with a maturity of one year or less or (2) a money market fund that invests solely in short term United States
Treasury Securities (including money market funds for which the Trustee or an affiliate of the Trustee serves as investment advisor, administrator, shareholder, servicing agent and/or custodian or sub-custodian, notwithstanding that (a) the
Trustee charges and collects fees and expenses from such funds for services rendered and (b) the Trustee charges and collects fees and expenses for services rendered pursuant to this Indenture at any time), and from time to time the Company may
direct the reinvestment of all or a portion of such money in other securities or funds meeting the criteria specified in Clause (1) or (2) of this Section.
ARTICLE V REMEDIES
Section 5.01. Events of Default.
Event of Default, wherever used herein with respect to Securities of any series, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of
such default for a period of 60 days (whether or not such payment is prohibited by the provisions of Article XIV); or
(b) default in the
payment of the principal of or any premium on any Security of that series at its Maturity (whether or not such payment is prohibited by the provisions of Article XIV); or
(c) default in the deposit of any sinking fund payment or other analogous required payment, if any, when and as due by the terms of a Security
of that series (whether or not such payment is prohibited by the provisions of Article XIV); or
(d) default in the performance of, or
compliance with, any covenant of the Company in this Indenture (other than a default in the performance of, or compliance with, a covenant which is specifically dealt with elsewhere in this Section or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that series), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a Notice
of Default hereunder; or
(e) the entry by a court having jurisdiction in the premises of (1) a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (2) a decree or order adjudging the Company bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in
effect for a period of 90 consecutive days; or
27
(f) the commencement by the Company of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in
an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
(g) any other Event of Default provided as contemplated by Section 3.01 with respect to Securities of that series.
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section 5.01(e) or 5.01(f)) with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an Event of Default specified in Section 5.01(e) or 5.01(f) with respect to
Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities
as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay
all
(1) overdue interest on all Securities of that series,
(2) the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,
(3) to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(4) all sums paid or
advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;
and
(b) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
28
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any Security of a series when such interest becomes due and payable and such default
continues for a period of 60 days (whether or not such payment is prohibited by the provisions of Article XIV), or
(b) default is made in
the payment of the principal of (or premium, if any, on) any Security of a series at the Maturity thereof (whether or not such payment is prohibited by the provisions of Article XIV),
then the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such series of Securities, the whole
amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at
the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name
and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company or any other
obligor upon the Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other obligor upon the Securities, its property or its creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand for overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee
any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that
the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors or other similar committee.
29
Section 5.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture, the Securities may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery shall after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 5.06. Application of Money Collected.
Any money or property collected or to be applied by the Trustee pursuant to this Article shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 6.07;
Second: Subject to Article XIV, to the payment of the amounts then due and unpaid for principal of and any premium and interest on the
Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest,
respectively; and
Third: The balance, if any, to the Company.
Section 5.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given
written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(b) the Holders of not less
than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered, and if requested, provided to the Trustee reasonable security or indemnity against the costs, expenses
and liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and
offer and, if requested, provision of security or indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent
with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such Holders.
30
Section 5.08. Unconditional Right of Holders to Receive Principal Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional to receive payment of the principal of and any premium and (subject to Sections 3.05 and 3.07) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12. Control by Holders.
Subject to Section 6.03, the Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that
(a) such direction shall not be in conflict with any rule of law or with this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in
good faith shall determine that the proceeding so directed would involve the Trustee in personal liability or would otherwise be contrary to applicable law.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
31
(a) in the payment of the principal of or any premium or interest on any Security of such series,
or
(b) in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company or the Trustee.
Section 5.15. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenant that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE VI THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to any series of Securities,
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect to the
Securities of such series, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the
absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to any series of Securities has occurred and
is continuing, the Trustee shall exercise with respect to the Securities of such series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise under
the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
32
(1) this Subsection shall not be construed to limit the effect of Subsection (a) of this
Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any Series relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its rights and powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
Section 6.02. Notice
of Defaults.
Within 90 days after the occurrence, and during the continuance, of any default with respect to the Securities of any
series which is known to the Trustee, the Trustee shall transmit, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, notice of all uncured or unwaived such defaults; provided, however, that, except in the
case of a default in the payment of the principal of (or premium, if any) or interest on Securities of any series or in the payment of any sinking or purchase fund installment with respect to such Securities, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interests of
the Holders of Securities of such series; and provided, further, however, that in the case of any default of the character specified in Section 5.01(d) with respect to the Securities of such series, no such notice to Holders of Securities shall
be given until at least 90 days after the occurrence thereof. For the purpose of this Section, the term default means any event which is, or after notice or lapse of time or both would become, an Event of Default.
Section 6.03. Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company
Order, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the
administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, rely upon an Officers Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
33
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it
by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee,
in its discretion, may, without obligation to do so, make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be charged with knowledge of any default (as defined in Section 6.02) or Event of Default with
respect to the Securities of any series for which it is acting as Trustee unless either (1) a Responsible Officer of the Trustee shall have actual knowledge of such default or Event of Default or (2) written notice of such default or Event
of Default shall have been given to the Trustee by the Company or any other obligor on such Securities or by any Holder of such Securities;
(i) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by this Indenture; and
(j) the rights, privileges, protections,
immunities and benefits given to the Trustee by this Indenture, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed by the Trustee to act on the Trustees behalf hereunder in any such capacity.
Section 6.04. Not
Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustees
certificates of authentication, shall be taken as the statements of the Company and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. Neither the Trustee nor any Authenticating Agent makes any
representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 6.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
34
Section 6.07. Compensation and Reimbursement.
The Company agrees:
(1) to pay
to the Trustee from time to time such reasonable compensation as shall be agreed in writing between the parties for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold
it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section to compensate the Trustee and to pay or reimburse the Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder.
Without limiting any rights available to the Trustee under applicable
law, when the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01(e) or Section 5.01(f), the expenses (including the reasonable charges and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of administration under any applicable Bankruptcy Law.
The provisions
of this Section shall survive the satisfaction and discharge of this Indenture and the defeasance of the Securities and, with respect to amounts due to the Trustee for events that occurred prior to the resignation or removal of the Trustee, the
resignation or removal of the Trustee.
Section 6.08. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.
Section 6.09. Corporate Trustee Required, Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder
for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $100,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 6.10. Resignation and Removal, Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
35
The Trustee may resign at any time with respect to the Securities of one or more series by giving
written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of
the Outstanding Securities of such series, delivered to the Trustee and to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after giving of such notice of removal, the
removed Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.
If at any time:
(a) the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.09 and shall fail to
resign after written request therefor by the Company or by any such Holder, or
(c) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (1) the Company by a Board Resolution may remove the Trustee with respect to all Securities of which such Trustee acts as trustee, or (2) subject to Section 5.14, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities of which such Trustee acts as
trustee and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder
of a Security of such series for at least six months or the Trustee may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities
of such series.
The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.06. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust Office.
36
Section 6.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges and
reimbursement of its expenses (including reasonable fees and expenses of counsel and agents), if any, to which such retiring Trustee is otherwise legally entitled, execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (b) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (c) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee
relates.
Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
37
Section 6.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).
Section 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on
behalf of and subject to the direction of the Trustee to authenticate and deliver Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06, and
Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustees certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $100,000,000 and subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an
Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable
to the Company and shall give notice of such appointment in the manner provided in Section 1.06 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
Except with respect to an Authenticating Agent appointed at the request of the
Company, the Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustees certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
38
|
|
|
|
|
|
|
[Indenture Trustee], as Trustee |
|
|
|
By: |
|
|
|
, as |
|
|
|
|
Authenticating Agent |
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
Authorized Signatory |
|
|
ARTICLE VII HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record Date, a list for each series of Securities, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities of such series as of such Regular Record Date, and
(b) at such
other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security Registrar for the Securities of a series, no such list need be
furnished with respect to such series of Securities.
Section 7.02. Preservation of Information; Communications to Holders.
Subject to compliance with its obligations pursuant to Section 312 of the Trust Indenture Act, the Trustee (i) shall preserve,
in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its
capacity as Security Registrar and (ii) may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or the Securities, and the
corresponding rights and privileges of the Trustee shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by
receiving and holding the same, agrees with the Company and the Trustee that none of the Company, the Trustee nor any agent of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 7.03. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant thereto. As promptly as practicable after each May 15 beginning with the May 15 following the date of this Indenture, and in any event prior to July 15 in each
year, the Trustee shall mail to each Holder a brief report dated as of May 15 that complies with Trust Indenture Act Section 313(a). The Trustee also shall comply with Trust Indenture Act Section 313(b). Prior to delivery to the
Holders, the Trustee shall deliver to the Company a copy of any report it delivers to Holders pursuant to this Section 7.03.
39
A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange.
Section 7.04. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such
summaries thereof as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the Company files the same with the Commission.
Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustees receipt of such
shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Companys compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers Certificates).
Such information, documents, reports and summaries shall be deemed to have been
(i) filed by the Company with the Trustee and (ii) transmitted by the Company to Holders, as the case may be, if the Company has filed such information, documents, reports and summaries with the Commission using the EDGAR filing system (or
any successor filing system) and such reports are publicly available, in each case to the extent such filing with the EDGAR filing system (or any successor filing system) and the foregoing effect thereof, is not prohibited by the Trust Indenture
Act.
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or convey, transfer or lease (as lessor) its properties and assets as, or
substantially as, an entirety to any Person, unless:
(a) (i) in the case of a merger, the Company is the surviving Person, or
(2) the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company as, or substantially as, an entirety shall be a
corporation or partnership and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on
all the Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall exist; and
(c) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied with.
Section 8.02. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease (as lessor) of
the properties and assets of the Company as, or substantially as, an entirety in accordance with Section 8.01, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case
of a lease (where the Company is the lessor), the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
40
ARTICLE IX SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, and the Trustee, at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another
Person to the Company under this Indenture and the Securities and the assumption by such successor of the obligations of the Company hereunder and under the Securities;
(b) to add covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company with regard to all or any series of
Securities (and if any such surrender is to be made with regard to less than all series of Securities, stating that such surrender is expressly being made solely with regard to such series);
(c) to add Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to
be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series);
(d) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form;
(e) to add to, change or eliminate any of the provisions of this Indenture in respect of all or any series of Securities (and if such addition,
change or elimination is to apply to less than all series of Securities, stating that it is expressly being made to apply solely with respect to such series), provided that any such addition, change or elimination (1) shall neither
(i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such
provision or (2) shall become effective only when there is no such Security Outstanding;
(f) to secure the Securities or any
guarantee with respect to any Securities;
(g) to establish the form or terms of Securities of any series hereunder;
(h) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11;
(i) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided that such action pursuant to this Clause (i) shall not adversely affect the interests of the Holders of any Securities in any
material respect;
(j) to add one or more guarantors with respect to the Securities as parties to the Indenture or to release guarantors in
accordance with the provisions of any supplemental indenture;
(k) to qualify this Indenture under the Trust Indenture Act;
41
(l) to supplement any provisions of this Indenture necessary to permit or facilitate the
defeasance and discharge of any series of Securities, provided that such action does not adversely affect the interests of the Holders of Securities of such series or any other series;
(m) to comply with the rules or regulations of any securities exchange or automated quotation system on which any of the Securities of any
series may be listed or traded; or
(n) to make any changes in Article XIV that would limit or terminate the benefits applicable to any
holder of Senior Indebtedness (or its Representatives) under Article XIV.
Section 9.02. Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of
each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture, or modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(a)
change the Stated Maturity of the principal of, or any installment of principal of or interest, if any, on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or change the Companys
obligation to maintain an office or agency for payment of Securities and the other matters specified herein, or the coin or currency in which any Security is payable, or impair the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or alter the method of computation of interest,
(b) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture,
(c) modify any of the provisions of this Indenture relating to the execution of supplemental indentures with the consent of Holders of
Securities which are discussed in this Section or modify any provisions relating to the waiver by holders of Securities of past defaults and covenants, except to increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the
references to the Trustee and concomitant changes in this Section and Section 10.06, or the deletion of this proviso, in accordance with the requirements of Sections 6.11 and 9.01(h), or
(d) make any change in Article XIV that adversely affects the rights of any Holder under Article XIV.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
42
An amendment under this Section 9.02 may not make any change that adversely affects the
rights under Article XIV of any holder of Senior Indebtedness then outstanding unless the holders of such Senior Indebtedness (or any group or Representatives thereof authorized to give a consent), pursuant to the consent requirement of the
agreement governing such Senior Indebtedness for the taking of such action, consent to such change.
Section 9.03. Execution of
Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustees own rights, duties or immunities under this
Indenture or otherwise.
Section 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture, for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.
Section 9.06. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplements indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of
the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series. Failure to make a notation or issue a
new Security shall not affect the validity and effect of any amendment, supplement or waiver.
ARTICLE X COVENANTS
Section 10.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and
premium, if any, and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture. Principal, premium, if any, and interest will be considered paid on the date due if the Trustee or Paying Agent, if
other than the Company or a Subsidiary thereof, holds as of Noon, New York City time, on the due date, money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and
interest on the Notes then due.
Section 10.02. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the
43
Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Except as otherwise specified with respect to a series of Securities as contemplated by Section 3.01, the Company hereby initially
designates as the Place of Payment for each series of Securities The City of New York, and initially appoints the Trustee as Paying Agent at its Corporate Trust Office as the Companys office or agency for each such purpose in such city.
Section 10.03. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of
the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the principal
of or any premium or interest on any Securities of that series, deposit (or, if the Company has deposited any trust funds with a trustee pursuant to Section 13.04(a), causes such trustee to deposit) with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest, if
any, on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; (2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of any payment of principal (and premium, if any) or interest, if any, on the Securities of that series; and (3) during the continuance of any such default, upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from an further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such
44
Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in
a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.04. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 150 days after the end of each of its fiscal years ending after the date hereof, an
Officers Certificate, stating whether or not to the best knowledge of the signer thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period
of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
Section 10.05. Existence.
Subject to Article VIII, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its
corporate (or equivalent) existence.
Section 10.06. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 3.01 for Securities of such series, the Company may, with respect to the
Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 3.01(u), 9.01(b) or 9.01(g) for the benefit of the Holders of such series or in
Article VIII or Section 10.05, if before the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in fall force and effect.
ARTICLE XI REDEMPTION OF SECURITIES
Section 11.01. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for such Securities) in accordance with this Article, subject to Article XIV.
Section 11.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be established in or pursuant to a Board Resolution or in another manner specified
as contemplated by Section 3.01 for such Securities. In case of any redemption at the election of the Company of less than all the Securities of any series (including any such redemption affecting only a single Security), the Company shall, not
less than 35 nor more than 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to
be redeemed and, if
45
applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Company, which is subject to a condition specified in the terms of such Securities, the Company shall furnish the Trustee with an Officers
Certificate evidencing compliance with such restriction or condition.
Section 11.03. Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a
specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 45 days prior to the Redemption Date by the Trustee (unless a shorter period shall
be satisfactory to the Trustee), from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which complies with any securities exchange or other applicable
requirements for redemption of a portion of the principal amount of any Security of such series, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the
minimum authorized denomination) for such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be
selected not more than 45 days prior to the Redemption Date by the Trustee (unless a shorter period shall be satisfactory to the Trustee), from the Outstanding Securities of such series and specified tenor not previously called for redemption in
accordance with the preceding sentence.
The Trustee shall promptly notify the Company and each Security Registrar in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 11.04. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date (or within such period as otherwise specified as contemplated by Section 3.01 for the relevant Securities), to each Holder of Securities to be redeemed, at his address appearing in the Security Register.
All notices of redemption shall identify the Securities to be redeemed (including CUSIP numbers, if any) and shall state:
(a) the Redemption Date,
(b) the
Redemption Price,
(c) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single
Security are to be redeemed, the principal amount of the particular Security to be redeemed,
46
(d) that on the Redemption Dates, the Redemption Price will become due and payable upon each such
Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(e) the place or places
where each such Security is to be surrendered for payment of the Redemption Price, and
(f) that the redemption is for a sinking fund, if
such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at
the Companys request, by the Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 11.05.
Deposit of Redemption Price.
On or prior to Noon New York City time on any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.
Section 11.06.
Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 3.01, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.
If any
Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 11.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII SINKING FUNDS
Section 12.01. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise
specified as contemplated by Section 3.01 for such Securities.
47
The minimum amount of any sinking fund payment provided for by the terms of any Securities is
herein referred to as a mandatory sinking fund payment, and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an optional sinking fund payment. If provided for
by the terms of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities as provided for by the terms of
such Securities.
Section 12.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (a) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (b) may apply as
a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such Securities;
provided that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities so to be
redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.03. Redemption of Securities for Sinking Fund.
Not less than 45 days (or shorter period as shall be satisfactory to the Trustee) prior to each sinking fund payment date for any Securities,
the Company will deliver to the Trustee an Officers Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied
by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 12.02 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days prior to
each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01. Companys Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 13.02 or Section 13.03 applied to any Securities or any series of
Securities, as the case may be, designated pursuant to Section 3.01 as being defeasible pursuant to such Section 13.02 or 13.03, in accordance with any applicable requirements provided pursuant to Section 3.01 and upon compliance with
the conditions set forth below in this Article and Article XIV. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 3.01 for such Securities.
Section 13.02. Defeasance and Discharge.
Upon the Companys exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case
may be, the Company shall be deemed to have been discharged from its obligations, and the provisions of Article XIV shall cease to be effective, with respect to such Securities as provided in this Section on and after the date the conditions set
forth in Section 13.04 are satisfied (hereinafter called Defeasance). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to
have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), subject to the
following which shall
48
survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 13.04 and as more
fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (b) the Companys obligations with respect to such Securities under Sections 3.04, 3.05, 3.06,
10.02 and 10.03, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (d) this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have Section 13.03 applied to such Securities.
Section 13.03. Covenant Defeasance.
Upon the Companys exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case
may be, (a) the Company shall be released from its obligations under Section 7.04, Section 8.01(c), Section 10.05 and any covenants provided pursuant to Section 3.01(u), 9.01(b) or 9.01(g) for the benefit of the Holders of
such Securities, (b) the occurrence of any event specified in Section 5.01(d) (with respect to any of Section 7.04, Section 8.01(c), Section 10.05 and any such covenants provided pursuant to Section 3.01(u), 9.01(b) or
9.01(g)) or 5.01(g) shall be deemed not to be or result in an Event of Default, and (c) the provisions of Article XIV shall cease to be effective, in each case with respect to such Securities as provided in this Section on and after the date
the conditions set forth in Section 13.04 are satisfied (hereinafter called Covenant Defeasance). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 5.01(d)) or Article XIV, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or Article or by reason of any reference in any such Section or Article to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
Section 13.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 13.02 or Section 13.03 to any Securities or any series of
Securities, as the case may be:
(a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another
trustee which satisfies the requirements contemplated by Section 6.09 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trusts for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such Securities, (A) money in an amount, or (B) in the case of any series of Securities the payment on which may only be made in legal coin or currency of the United
States, U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or
(C) such other obligations or arrangements as may be specified as contemplated by Section 3.01 with respect to such Securities, or (D) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of
independent public accountants or investment bankers, in either case expressed in a written certification thereof to be delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee)
to pay and discharge, (1) the principal of and any premium and interest on such Securities on the respective Stated Maturities, in accordance with the terms of this Indenture and such Securities or any Redemption Date established pursuant to
clause (i) below, and (2) any mandatory sinking fund payments on the dates on which such payments are due and payable in accordance with the terms of this Indenture and such Securities. As used herein, U.S. Government
Obligation means (x) any security which is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case
(i) or (ii), is not callable or redeemable at the option of the issuer thereof and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S.
49
Government Obligation which is specified in Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
(b) In the event of an election to have Section 13.02 apply to any Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a
change in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.
(c) In the event of an election to have Section 13.03 apply to any Securities or any
series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel that shall confirm that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the
deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were
not to occur.
(d) The Company shall have delivered to the Trustee an Officers Certificate to the effect that neither such Securities
nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.
(e)
No event which is, or after notice or lapse of time or both would become, an Event of Default shall have occurred and be continuing at the time of such deposit (other than such event or Event of Default (if any) resulting from the incurrence of
indebtedness or the grant of liens securing such indebtedness, all or a portion of the proceeds of which will be applied to such deposit) or, with regard to any such event specified in Sections 5.01(e) and (f), at any time on or prior to the 90th
day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).
(f)
Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).
(g) Such deposit shall not result in a breach of, or constitute a default under, any material agreement or instrument (other than this
Indenture) to which the Company is a party or by which it is bound, or if such breach or default would occur, which is not waived as of, and for all purposes, on and after, the date of such deposit.
(h) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.
(i)
If the Securities are to be redeemed prior to Stated Maturity (other than from mandatory sinking fund payments or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee shall have been made.
(j) The Company shall have delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
50
Section 13.05. Deposited Money and U.S. Government obligations to Be Held in Trust;
Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.03, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.06, the Trustee and any such other trustee are referred to collectively as the
Trustee) pursuant to Section 13.04 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through
any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums, due and to become due thereon in respect of principal and any premium and interest, but money
so held in trust need not be segregated from other funds except to the extent required by law. Money and U.S. Government Obligations (including the proceeds thereof) so held in trust shall not be subject to the provisions of Article XIV, provided
that the applicable conditions of Section 13.04 have been satisfied.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 13.04 with respect to any Securities which are in excess of the amount thereof which would then be
required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
Section 13.06. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture, such Securities from which the Company has been discharged or released pursuant to
Section 13.02 or 13.03 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 13.05 with respect to such Securities in accordance with this Article; provided, however, that if the Company makes any payment of principal of or any premium or interest on any such Security following such reinstatement of
its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
ARTICLE XIV SUBORDINATION
Section 14.01. Applicability of Article; Agreement to Subordinate.
The provisions of this Article XIV shall only be applicable to the Securities of any series (Securities of such series referred to in this
Article XIV as Subordinated Securities) designated, pursuant to Section 3.01, as subordinated to Senior Indebtedness. Each Holder by accepting a Subordinated Security agrees that the Debt evidenced by such Subordinated Security is
subordinated in right of payment, to the extent and in the manner provided in this Article XIV, to the prior payment of all Senior Indebtedness and that the subordination is for the benefit of and enforceable by the holders of Senior Indebtedness.
All provisions of this Article XIV shall be subject to Section 14.12.
51
Section 14.02. Liquidation, Dissolution, Bankruptcy.
Upon any payment or distribution of the assets of the Company to creditors upon a total or partial liquidation or a total or partial
dissolution of the Company or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company or its property:
(a) holders of Senior Indebtedness of the Company shall be entitled to receive payment in full in cash of such Senior Indebtedness (including
interest (if any), accruing on or after the commencement of such a proceeding, whether or not allowed as a claim against the Company in such proceeding) before Holders of Subordinated Securities shall be entitled to receive any payment of principal
of, or premium, if any, or interest on, the Subordinated Securities from the Company; and
(b) until the Senior Indebtedness of the Company
is paid in full, any distribution to which Holders of Subordinated Securities would be entitled but for this Article XIV shall be made to holders of Senior Indebtedness of the Company as their interests may appear, except that such Holders may
receive capital stock and any debt securities that are subordinated to Senior Indebtedness of the Company to at least the same extent as the Subordinated Securities of the Company.
Section 14.03. Default on Senior Indebtedness.
The Company may not pay the principal of, or premium, if any, or interest on, the Subordinated Securities or make any deposit in trust under
Article IV or XIII and may not repurchase, redeem or otherwise retire (except, in the case of Subordinated Securities that provide for a mandatory sinking fund pursuant to Article XII by the delivery of Subordinated Securities by the Company to the
Trustee pursuant to Section 12.03) any Securities (collectively, pay the Subordinated Securities) if any principal, premium or interest or other amount payable in respect of Senior Indebtedness is not paid within any applicable
grace period (including at maturity) or any other default on Senior Indebtedness occurs and the maturity of such Senior Indebtedness is accelerated in accordance with its terms unless, in either case, the default has been cured or waived and any
such acceleration has been rescinded or such Senior Indebtedness has been paid in full in cash; provided, however, that the Company may make payments on the Subordinated Securities without regard to the foregoing if the Company and the Trustee
receive written notice approving such payment from the Representative of each issue of Designated Senior Indebtedness. During the continuance of any default (other than a default described in the preceding sentence) with respect to any Senior
Indebtedness pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods, the Company may not make
payments on the Subordinated Securities for a period (a Payment Blockage Period) commencing upon the receipt by the Company and the Trustee of written notice of such default from the Representative of any Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period (a Blockage Notice) and ending 179 days thereafter (or earlier if such Payment Blockage Period is terminated by written notice to the Trustee and the Company from the Person or
Persons who gave such Blockage Notice, by repayment in full in cash of such Designated Senior Indebtedness or because the default giving rise to such Blockage Notice is no longer continuing). Notwithstanding the provisions described in the
immediately preceding sentence (but subject to the provisions contained in the first sentence of this Section 14.03), unless the holders of such Designated Senior Indebtedness or the Representative of such holders shall have accelerated the
maturity of such Designated Senior Indebtedness, the Company may resume payments on the Subordinated Securities after such Payment Blockage Period. Not more than one Blockage Notice may be given in any consecutive 360-day period, irrespective of the
number of defaults with respect to any number of issues of Senior Indebtedness during such period. For purposes of this Section 14.03, no default or event of default that existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Senior Indebtedness initiating such Payment Blockage Period shall be, or be made, the basis of the commencement of a subsequent Payment Blockage Period by the Representative of such Senior Indebtedness, whether or
not within a period of 360 consecutive days, unless such default or event of default shall have been cured or waived for a period of not less than 90 consecutive days.
52
Section 14.04. Acceleration of Payment of Debt Securities.
If payment of the Subordinated Securities is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify the
holders of the Designated Senior Indebtedness (or their Representatives) of the acceleration.
Section 14.05. When Distribution
Must Be Paid Over.
If a distribution is made to Holders of Subordinated Securities that because of this Article XIV should not have
been made to them, the Holders who receive such distribution shall hold it in trust for holders of Senior Indebtedness and pay it over to them as their interests may appear.
Section 14.06. Subrogation.
After all Senior Indebtedness is paid in full and until the Subordinated Securities are paid in full, Holders thereof shall be subrogated to
the rights of holders of Senior Indebtedness to receive distributions applicable to Senior Indebtedness. A distribution made under this Article XIV to holders of Senior Indebtedness that otherwise would have been made to Holders of Subordinated
Securities is not, as between the Company and such Holders, a payment by the Company on Senior Indebtedness.
Section 14.07.
Relative Rights.
This Article XIV defines the relative rights of Holders of Subordinated Securities and holders of Senior
Indebtedness. Nothing in this Indenture shall:
(a) impair, as between the Company and Holders of Subordinated Securities, the obligation
of the Company, which is absolute and unconditional, to pay principal of, and premium, if any, and interest on the Subordinated Securities in accordance with their terms; or
(b) prevent the Trustee or any Holder of Securities from exercising its respective available remedies upon an Event of Default, subject to the
rights of holders of Senior Indebtedness to receive distributions otherwise payable to Holders of Securities.
Section 14.08.
Subordination May Not Be Impaired by Company.
No right of any holder of Senior Indebtedness to enforce the subordination of the
indebtedness evidenced by the Subordinated Securities shall be impaired by any act or failure to act by the Company or by its failure to comply with this Indenture.
Section 14.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 14.03, the Trustee or any Paying Agent may continue to make payments on Subordinated Securities and shall not be
charged with knowledge of the existence of facts that would prohibit the making of any such payments unless, not less than two Business Days prior to the date of such payment, an Officer, or a Responsible Officer of the Trustee, if the Trustee is
serving as Paying Agent, receives written notice satisfactory to it that payments may not be made under this Article XIV. The Company, the Registrar, any Paying Agent, a Representative or a holder of Senior Indebtedness may give the notice;
provided, however, that, if an issue of Senior Indebtedness has a Representative, only the Representative may give the notice.
The
Trustee in its individual or any other capacity may hold Senior Indebtedness with the same rights it would have if it were not Trustee. The Registrar and any Paying Agent may do the same with like rights. The Trustee shall be entitled to all the
rights set forth in this Article XIV with respect to any Senior Indebtedness that may at any time be held by it, to the same extent as any other holder of Senior Indebtedness; and nothing in Article VI shall deprive the Trustee of any of its rights
as such holder. Nothing in this Article XIV shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.07.
53
Section 14.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior Indebtedness, the distribution may be made and the notice given to
their Representative (if any).
Section 14.11. Article XIV Not to Prevent Defaults or Limit Right to Accelerate.
The failure to make a payment pursuant to the Securities by reason of any provision in this Article XIV shall not be construed as preventing
the occurrence of a Default. Nothing in this Article XIV shall have any effect on the right of the Holders or the Trustee to accelerate the maturity of the Subordinated Securities.
Section 14.12. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from money or the proceeds of U.S. Government Obligations held in trust
under Article IV or XIII by the Trustee for the payment of principal of, and premium, if any, and interest on, the Subordinated Securities shall not be subordinated to the prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article XIV, and none of the Holders thereof shall be obligated to pay over any such amount to the Company or any holder of Senior Indebtedness or any other creditor of the Company.
Section 14.13. Trustee Entitled to Rely.
Upon any payment or distribution pursuant to this Article XIV, the Trustee and the Holders shall be entitled to rely upon any order or decree
of a court of competent jurisdiction in which any proceedings of the nature referred to in Section 14.02 are pending, upon a certificate of the liquidating trustee or agent or other Person making such payment or distribution to the Trustee or
to such Holders or upon the Representatives for the holders of Senior Indebtedness for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Indebtedness and other Debt of the
Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article XIV. In the event that the Trustee determines, in good faith, that evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article XIV, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and other facts pertinent to the rights of such Person under this Article XIV, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. The provisions of Sections 6.01 and 6.03 shall be applicable to all actions or
omissions of actions by the Trustee pursuant to this Article XIV.
Section 14.14. Trustee to Effectuate Subordination.
Each Holder by accepting a Subordinated Security authorizes and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination between the Holders of Subordinated Securities and the holders of Senior Indebtedness as provided in this Article XIV and appoints the Trustee as attorney-in-fact for any and all such
purposes.
Section 14.15. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders if
it shall mistakenly pay over or distribute to Holders of Subordinated Securities or the Company or any other Person, money or assets to which any holders of Senior Indebtedness shall be entitled by virtue of this Article XIV or otherwise.
54
Section 14.16. Reliance by Holders of Senior Indebtedness on Subordination
Provisions.
Each Holder by accepting a Subordinated Security acknowledges and agrees that the foregoing subordination provisions are,
and are intended to be, an inducement and a consideration to each holder of any Senior Indebtedness, whether such Senior Indebtedness was created or acquired before or after the issuance of the Securities, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of Senior Indebtedness shall be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to hold, or in continuing to hold, such Senior Indebtedness.
[Signature Pages Follow]
55
This instrument may be executed in any number of counterparts, and by each party hereto on
separate counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
|
|
|
MIDCOAST ENERGY PARTNERS, L.P., |
By Midcoast Holdings, L.L.C., its general partner |
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
|
U.S. BANK NATIONAL ASSOCIATION, |
as Trustee |
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
[Signature Page to Subordinated Indenture]
Exhibit 5.1
December 8, 2014
Midcoast Energy Partners, L.P.
ELTM, L.P.
Enbridge Energy Marketing, L.L.C.
Enbridge G & P (East
Texas) L.P.
Enbridge G & P (North Texas) L.P.
Enbridge
G & P (Oklahoma) L.P.
Enbridge Gathering (North Texas) L.P.
Enbridge Holdings (Texas Systems) L.L.C.
Enbridge Liquids
Marketing (North Texas) L.P.
Enbridge Marketing (North Texas) L.P.
Enbridge Marketing (U.S.) L.L.C.
Enbridge Marketing (U.S.) L.P.
Enbridge Partners Risk Management, L.P.
Enbridge Pipelines
(East Texas) L.P.
Enbridge Pipelines (Louisiana Liquids) L.L.C.
Enbridge Pipelines (North Texas) L.P.
Enbridge Pipelines
(Oklahoma Transmission) L.L.C.
Enbridge Pipelines (Texas Gathering) L.P.
Enbridge Pipelines (Texas Intrastate) L.P.
Enbridge Pipelines
(Texas Liquids) L.P.
Midcoast Operating, L.P.
Midcoast OLP
GP, L.L.C.
1100 Louisiana Street, Suite 3300
Houston, Texas
77002
Ladies and Gentlemen:
We have acted
as counsel to Midcoast Energy Partners, L.P., a Delaware limited partnership (the Partnership), and the Guarantors listed on Exhibit A to this letter (the Guarantors) with respect to certain legal matters in
connection with the registration under the Securities Act of 1933, as amended (the Securities Act), of the offer and sale by (a) the Partnership from time to time, pursuant to Rule 415 under the Securities Act of
(i) Class A common units representing limited partner interests in the Partnership (the Units) and (ii) debt
Midcoast Energy Partners, L.P., et al
December 8, 2014
Page 2
securities in one or more series (the Debt Securities) and (b) the co-registrant Guarantors, each of which is a co-registrant guarantor in respect of the Registration
Statement (as defined below), of guarantees of the Debt Securities (the Guarantees). The Units, the Debt Securities and the Guarantees are collectively referred to in this letter as the Securities.
We also have participated in the preparation of the Prospectus (the Prospectus) contained in the Registration Statement on
Form S-3 (the Registration Statement) to which this opinion is an exhibit. The Securities will be offered in amounts, at prices and on terms to be determined in light of market conditions at the time of sale and to be set forth in
supplements (each a Prospectus Supplement) to the Prospectus contained in the Registration Statement. Capitalized terms not defined herein shall have the meanings ascribed to them in the Prospectus.
In rendering the opinions set forth below, we have examined and relied upon (a) the Registration Statement, including the Prospectus,
(b)(i) the certificate of limited partnership and the first amended and restated agreement of limited partnership of the Partnership and (ii) such records of the Guarantors as we have deemed relevant and necessary, (c) the senior indenture
and the subordinated indenture, each filed as exhibits to the Registration Statement and (d) such certificates, statutes and other instruments and documents as we consider appropriate for purposes of the opinions hereafter expressed. As to
various questions of fact material to this opinion, we have relied on statements and certificates of officers and representatives of the Partnership and the Guarantors. In addition, we reviewed such questions of law as we considered appropriate.
In connection with rendering the opinions set forth below, we have assumed that (a) all information contained in all documents
reviewed by us is true and correct, (b) all signatures on all documents examined by us are genuine, (c) all documents submitted to us as originals are authentic, and all documents submitted to us as copies conform to the originals of those
documents, (d) the Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective, (e) a Prospectus Supplement will have been prepared and filed with the Securities and Exchange
Commission describing the Securities offered thereby, (f) all Securities will be offered and sold in compliance with applicable federal and state securities laws and in the manner specified in the Registration Statement and the applicable
Prospectus Supplement, (g) the supplemental indentures relating to the Debt Securities and Guarantees will be duly authorized, executed and delivered by the parties thereto, (h) each person signing the supplemental indentures will have the
legal capacity and authority to do so, (i) a definitive purchase, underwriting or similar agreement with respect to any Securities offered will have been duly authorized and validly executed and delivered by the Partnership, the Guarantors, if
applicable, and the other parties thereto and (j) any Securities issuable upon conversion, exchange or exercise of any Debt Securities being offered will have been duly authorized, created and, if appropriate, reserved for issuance upon such
conversion, exchange or exercise.
Midcoast Energy Partners, L.P., et al
December 8, 2014
Page 3
Based on the foregoing, and subject to the assumptions, qualifications, limitations, and
exceptions set forth herein, we are of the opinion that:
1. With respect to the Units, when (a) the Partnership has taken all
necessary action to approve the issuance of the Units, the terms of the offering and related matters and (b) the Units have been issued and delivered in accordance with the terms of the applicable definitive purchase, underwriting or similar
agreement approved by the Partnership upon payment of the consideration therefor provided for therein, the Units will be validly issued, fully paid and nonassessable.
2. With respect to the Debt Securities and any Guarantees, when (a) the applicable indenture and supplemental indenture, if any, relating
either to senior Debt Securities or subordinated Debt Securities and any Guarantees have been duly qualified under the Trust Indenture Act of 1939, as amended, (b) the Partnership has taken all necessary action to approve the issuance and terms
of such Debt Securities and the Guarantors have taken all necessary action to approve the issuance and terms of any such Guarantees, (c) the terms of such Debt Securities and any Guarantees and of their issuance and sale have been duly
established in conformity with the applicable indenture and supplemental indenture, if any, so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Partnership of the Guarantors
and so as to comply with any requirements or restrictions imposed by any court or governmental body having jurisdiction over the Partnership and (d) such Debt Securities and any Guarantees have been duly executed and authenticated in accordance
with the provisions of the applicable indenture and supplemental indenture, if any, and issued and sold as contemplated in the Registration Statement and upon payment of the consideration as provided for in the applicable definitive purchase,
underwriting or similar agreement approved by the Partnership and any Guarantees, such Debt Securities and any Guarantees will be legally issued and will constitute valid and legally binding obligations of the Partnership and any Guarantees,
respectively, enforceable against the Partnership and any Guarantees, respectively, in accordance with their terms, except as such enforcement is subject to any applicable bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium and similar laws relating to or affecting creditors rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law).
We express no opinions concerning (a) the validity or enforceability of any provisions contained in the senior indenture, subordinated
indenture or any supplemental indenture that purport to waive or not give effect to rights to notices, defenses, subrogation or other rights or benefits that cannot be effectively waived under applicable law or (b) the enforceability of
indemnification provisions to the extent they purport to relate to liabilities resulting from or based upon negligence or any violation of federal or state securities or blue sky laws.
The opinions expressed herein are limited exclusively to the General Corporation Law of the State of Delaware, the Delaware Revised Uniform
Limited Partnership Act, the Delaware Limited Liability Company Act and the applicable provisions of the Delaware constitution and reported decisions concerning such laws, the laws of the State of Texas, the laws of the State of New York and the
federal laws of the United States of America, and we are expressing no opinion as to the effect of the laws of any other jurisdiction.
Midcoast Energy Partners, L.P., et al
December 8, 2014
Page 4
We hereby consent to the references to this firm under the caption Legal Matters
in the Prospectus and to the filing of this opinion as an exhibit to the Registration Statement. By giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act
of 1933 or the rules and regulations thereunder or Item 509 of Regulation S-K.
Very truly yours,
/s/ BAKER & HOSTETLER LLP
Exhibit A
GUARANTORS
|
|
|
|
|
|
|
Company Name |
|
State of Organization |
|
I.R.S. Employer Identification Number |
|
ELTM, L.P. |
|
Delaware |
|
|
76-0378638 |
|
Enbridge Energy Marketing, L.L.C. |
|
Delaware |
|
|
76-0378638 |
|
Enbridge G & P (East Texas) L.P. |
|
Texas |
|
|
76-0378638 |
|
Enbridge G & P (North Texas) L.P. |
|
Texas |
|
|
76-0378638 |
|
Enbridge G & P (Oklahoma) L.P. |
|
Texas |
|
|
76-0378638 |
|
Enbridge Gathering (North Texas) L.P. |
|
Texas |
|
|
76-0378638 |
|
Enbridge Holdings (Texas Systems) L.L.C. |
|
Delaware |
|
|
76-0378638 |
|
Enbridge Liquids Marketing (North Texas) L.P. |
|
Delaware |
|
|
76-0378638 |
|
Enbridge Marketing (North Texas) L.P. |
|
Delaware |
|
|
76-0378638 |
|
Enbridge Marketing (U.S.) L.L.C. |
|
Delaware |
|
|
76-0378638 |
|
Enbridge Marketing (U.S.) L.P. |
|
Texas |
|
|
76-0378638 |
|
Enbridge Partners Risk Management, L.P. |
|
Delaware |
|
|
76-0378638 |
|
Enbridge Pipelines (East Texas) L.P. |
|
Texas |
|
|
76-0378638 |
|
Enbridge Pipelines (Louisiana Liquids) L.L.C. |
|
Delaware |
|
|
76-0378638 |
|
Enbridge Pipelines (North Texas) L.P. |
|
Texas |
|
|
76-0378638 |
|
Enbridge Pipelines (Oklahoma Transmission) L.L.C. |
|
Delaware |
|
|
76-0378638 |
|
Enbridge Pipelines (Texas Gathering) L.P. |
|
Delaware |
|
|
76-0378638 |
|
Enbridge Pipelines (Texas Intrastate) L.P. |
|
Texas |
|
|
76-0378638 |
|
Enbridge Pipelines (Texas Liquids) L.P. |
|
Texas |
|
|
76-0378638 |
|
Midcoast Operating, L.P. |
|
Texas |
|
|
76-0378638 |
|
Midcoast OLP GP, L.L.C. |
|
Delaware |
|
|
61-1714064 |
|
Exhibit 8.1
|
|
|
|
|
|
|
December 8, 2014 |
|
|
Midcoast Energy Partners, L.P.
1100 Louisiana, Suite 3300
Houston, Texas 77002
Ladies and Gentlemen:
We have acted as special
counsel to Midcoast Energy Partners, L.P., a Delaware limited partnership (the Partnership), in connection with the preparation of a registration statement on Form S-3 (the Registration Statement) filed by the
Partnership with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the Act). The Registration Statement relates to the registration of the offering and sale (the Offering) by
the Partnership from time to time, pursuant to Rule 415 under the Act, of Class A common units representing limited partner interests in the Partnership (the Common Units). In connection therewith, we have participated in the
preparation of the discussion set forth under the caption Material Federal Income Tax Consequences (the Discussion) in the Registration Statement.
Subject to the qualifications and assumptions stated in the Discussion and to the limitations and qualifications set forth herein, all
statements as to matters of United States federal income tax law and legal conclusions with respect thereto, but not as to factual matters, contained in the Discussion, unless otherwise noted, constitute our opinion as to the material United States
federal income tax consequences for purchasers of the Common Units pursuant to the offering.
In providing this opinion, we have examined
and are relying upon the truth and accuracy at all relevant times of the statements, covenants and representations contained in (i) the Registration Statement, (ii) certain other filings made by the Partnership with the Securities and Exchange
Commission, and (iii) other information and representations provided to us by the Partnership and Midcoast Holdings, L.L.C., a Delaware limited liability company and the general partner of the Partnership. Any variation from the factual statements
set forth in the foregoing may affect our opinion.
Midcoast Energy Partners, L.P.
December 8, 2014
Page
2
This opinion letter is limited to the matters set forth herein, and no opinions are intended
to be implied or may be inferred beyond those expressly stated herein. Our opinion is rendered as of the date hereof, and we assume no obligation to update or supplement this opinion or any matter related to this opinion to reflect any change of
fact, circumstances, or law after the date hereof. Our opinion is based on existing law as contained in the Internal Revenue Code of 1986, as amended, and regulations promulgated thereunder, in effect on the date hereof, and the interpretations of
such provisions and regulations by the Internal Revenue Service and the courts having jurisdiction over such matters, all of which are subject to change either prospectively or retroactively. In addition, our opinion is based on the assumption that
the matter will be properly presented to the applicable court.
Furthermore, our opinion is not binding on the Internal Revenue Service or
a court. In addition, we must note that our opinion represents merely our best legal judgment on the matters presented and that others may disagree with our conclusion. There can be no assurance that the Internal Revenue Service will not take a
contrary position or that a court would agree with our opinion if litigated.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the use of our name in the Prospectus under the caption Material Federal Income Tax Consequences. In giving this consent, we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933 or the rules and regulations thereunder.
Very
truly yours,
/s/ BAKER & HOSTETLER LLP
Exhibit 12.1
MIDCOAST ENERGY PARTNERS, L.P.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in millions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine months ended September 30, |
|
|
December 31, |
|
|
|
|
|
|
2014 |
|
|
2013 |
|
|
(1) |
|
|
2012 |
|
|
(1) |
|
|
2011 |
|
|
(1) |
|
|
2010 |
|
|
(1) |
|
|
2009 |
|
|
(1) |
|
|
|
(dollars in millions, except ratio amounts) |
|
|
|
|
Consolidated income |
|
$ |
15.9 |
|
|
$ |
53.9 |
|
|
|
|
|
|
$ |
167.5 |
|
|
|
|
|
|
$ |
219.2 |
|
|
|
|
|
|
$ |
157.4 |
|
|
|
|
|
|
$ |
88.0 |
|
|
|
|
|
Add: Provision for income taxes |
|
|
2.7 |
|
|
|
8.3 |
|
|
|
|
|
|
|
3.8 |
|
|
|
|
|
|
|
2.9 |
|
|
|
|
|
|
|
2.6 |
|
|
|
|
|
|
|
4.0 |
|
|
|
|
|
Less: Equity in earnings from joint ventures |
|
|
7.1 |
|
|
|
(1.0 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations before provision for income taxes and noncontrolling interest |
|
|
11.5 |
|
|
|
63.2 |
|
|
|
|
|
|
|
171.3 |
|
|
|
|
|
|
|
222.1 |
|
|
|
|
|
|
|
160.0 |
|
|
|
|
|
|
|
92.0 |
|
|
|
|
|
Add: Fixed Charges |
|
|
13.1 |
|
|
|
26.0 |
|
|
|
|
|
|
|
19.6 |
|
|
|
|
|
|
|
10.4 |
|
|
|
|
|
|
|
6.7 |
|
|
|
|
|
|
|
6.5 |
|
|
|
|
|
Distributed income of
equity investees |
|
|
6.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization of
capitalized interest |
|
|
1.0 |
|
|
|
1.4 |
|
|
|
|
|
|
|
1.1 |
|
|
|
|
|
|
|
1.2 |
|
|
|
|
|
|
|
1.2 |
|
|
|
|
|
|
|
1.1 |
|
|
|
|
|
Less: Interest capitalized |
|
|
0.6 |
|
|
|
18.5 |
|
|
|
|
|
|
|
11.9 |
|
|
|
|
|
|
|
3.3 |
|
|
|
|
|
|
|
1.9 |
|
|
|
|
|
|
|
1.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total earnings as adjusted |
|
$ |
31.1 |
|
|
$ |
72.1 |
|
|
|
|
|
|
$ |
180.1 |
|
|
|
|
|
|
$ |
230.4 |
|
|
|
|
|
|
$ |
166.0 |
|
|
|
|
|
|
$ |
98.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed Charges |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expensenet |
|
$ |
9.7 |
|
|
$ |
1.7 |
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
|
|
|
|
Estimate interest portion of rental expense (33.33%) |
|
|
2.8 |
|
|
|
5.8 |
|
|
|
|
|
|
|
7.7 |
|
|
|
|
|
|
|
7.1 |
|
|
|
|
|
|
|
4.8 |
|
|
|
|
|
|
|
5.3 |
|
|
|
|
|
Interest capitalized |
|
|
0.6 |
|
|
|
18.5 |
|
|
|
(2 |
) |
|
|
11.9 |
|
|
|
(2 |
) |
|
|
3.3 |
|
|
|
(2 |
) |
|
|
1.9 |
|
|
|
(2 |
) |
|
|
1.2 |
|
|
|
(2 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed Charges |
|
$ |
13.1 |
|
|
$ |
26.0 |
|
|
|
|
|
|
$ |
19.6 |
|
|
|
|
|
|
$ |
10.4 |
|
|
|
|
|
|
$ |
6.7 |
|
|
|
|
|
|
$ |
6.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio of earnings to fixed charges |
|
|
2.37 |
x |
|
|
2.77 |
x |
|
|
|
|
|
|
9.19 |
x |
|
|
|
|
|
|
22.15 |
x |
|
|
|
|
|
|
24.78 |
x |
|
|
|
|
|
|
15.14 |
x |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
Prior to November 13, 2013 financial information included represents our Predecessor otherwise referred to as Midcoast Operating, L.P.. |
(2) |
Prior to November 13, 2013 our Predecessor otherwise referred to as Midcoast Operating, L.P. had no outstanding debt however recognized intercompany interest expense to the extent such amounts were capitalized as part
of its construction projects. |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated February 17, 2014 relating to the
financial statements, which appears in Midcoast Energy Partners, L.P.s Annual Report on Form 10-K for the year ended December 31, 2013. We also consent to the reference to us under the heading
Experts in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Houston, Texas
December 8, 2014
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
¨ |
Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK
NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
31-0841368
I.R.S.
Employer Identification No.
|
|
|
800 Nicollet Mall
Minneapolis, Minnesota |
|
55402 |
(Address of principal executive offices) |
|
(Zip Code) |
Felicia H. Powell
U.S. Bank National Association
1349 West Peachtree Street, NW, Suite 1050
Atlanta, Georgia 30309
(404) 898-8828
(Name,
address and telephone number of agent for service)
Midcoast
Energy Partners, L.P.
(Issuer with respect to the Securities)
SEE TABLE OF CO-REGISTRANT GUARANTORS
|
|
|
Delaware |
|
61-1714064 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
|
|
|
1100 Louisiana, Suite 3300
Houston, Texas |
|
77002 |
(Address of Principal Executive Offices) |
|
(Zip Code) |
Senior Debt Securities
Subordinated Debt Securities
Guarantees of Debt Securities
(Title of the Indenture Securities)
TABLE OF CO-REGISTRANT GUARANTORS
|
|
|
|
|
Company Name |
|
State of Organization |
|
I.R.S. Employer Identification Number |
ELTM, L.P. |
|
Delaware |
|
76-0378638 |
Enbridge Energy Marketing, L.L.C. |
|
Delaware |
|
76-0378638 |
Enbridge G & P (East Texas) L.P. |
|
Texas |
|
76-0378638 |
Enbridge G & P (North Texas) L.P. |
|
Texas |
|
76-0378638 |
Enbridge G & P (Oklahoma) L.P. |
|
Texas |
|
76-0378638 |
Enbridge Gathering (North Texas) L.P. |
|
Texas |
|
76-0378638 |
Enbridge Holdings (Texas Systems) L.L.C. |
|
Delaware |
|
76-0378638 |
Enbridge Liquids Marketing (North Texas) L.P. |
|
Delaware |
|
76-0378638 |
Enbridge Marketing (North Texas) L.P. |
|
Delaware |
|
76-0378638 |
Enbridge Marketing (U.S.) L.L.C. |
|
Delaware |
|
76-0378638 |
Enbridge Marketing (U.S.) L.P. |
|
Texas |
|
76-0378638 |
Enbridge Partners Risk Management, L.P. |
|
Delaware |
|
76-0378638 |
Enbridge Pipelines (East Texas) L.P. |
|
Texas |
|
76-0378638 |
Enbridge Pipelines (Louisiana Liquids) L.L.C. |
|
Delaware |
|
76-0378638 |
Enbridge Pipelines (North Texas) L.P. |
|
Texas |
|
76-0378638 |
Enbridge Pipelines (Oklahoma Transmission) L.L.C. |
|
Delaware |
|
76-0378638 |
Enbridge Pipelines (Texas Gathering) L.P. |
|
Delaware |
|
76-0378638 |
Enbridge Pipelines (Texas Intrastate) L.P. |
|
Texas |
|
76-0378638 |
Enbridge Pipelines (Texas Liquids) L.P. |
|
Texas |
|
76-0378638 |
Midcoast Operating, L.P. |
|
Texas |
|
76-0378638 |
Midcoast OLP GP, L.L.C. |
|
Delaware |
|
61-1714064 |
The address and phone number of each of the additional registrants is c/o Midcoast Energy Partners, L.P., 1100 Louisiana,
Suite 3300, Houston, TX 77002, (713) 821-2000.
FORM T-1
Item 1. |
GENERAL INFORMATION. Furnish the following information as to the Trustee. |
|
a) |
Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
|
b) |
Whether it is authorized to exercise corporate trust powers. |
Yes
Item 2. |
AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
Items 3-15 |
Items 3-15 are not applicable because to the best of the Trustees knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
Item 16. |
LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
|
1. |
A copy of the Articles of Association of the Trustee.* |
|
2. |
A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
|
3. |
A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3. |
|
4. |
A copy of the existing bylaws of the Trustee, attached as Exhibit 4. |
|
5. |
A copy of each Indenture referred to in Item 4. Not applicable. |
|
6. |
The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
|
7. |
Report of Condition of the Trustee as of September 30, 2014 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
* Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on
November 15, 2005.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Atlanta,
State of Georgia on the 8th of December, 2014.
|
|
|
By: |
|
/s/ Felicia H. Powell |
|
|
Felicia H. Powell Assistant Vice
President |
2
Exhibit 2
3
Exhibit 3
4
Exhibit 4
AMENDED AND RESTATED BYLAWS
OF
U.S. BANK NATIONAL
ASSOCIATION
ARTICLE I.
MEETINGS OF SHAREHOLDERS
Section 1.
Annual Meeting
The annual meeting of shareholders shall be held at the main banking house of the Association or other convenient
place duly authorized by the Board of Directors (the Board) at 11:00 a.m. on the second Tuesday in March of each year, or such other date or time which the Board may designate at any Board meeting held prior to the required date for
sending notice of the annual meeting to the shareholders. Notice of such meeting shall be mailed to shareholders not less than ten (10) or more than sixty (60) days prior to the meeting date.
Section 2. Special Meetings
Special
meetings of shareholders may be called and held at such times and upon such notice as is specified in the Articles of Association.
Section 3.
Quorum
A majority of the outstanding capital stock represented in person or by proxy shall constitute a quorum of any meeting of
the shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice.
Section 4. Inspectors
The Board of
Directors may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors of Election who shall determine the presence of quorum, the validity of proxies, and the results of all elections and all other matters voted
upon by shareholders at all annual and special meetings of shareholders.
Section 5. Voting
In deciding on questions at meetings of shareholders, except in the election of directors, each shareholder shall be entitled to one vote for
each share of stock held. A majority of votes cast shall decide each matter submitted to the shareholders, except where by law a larger vote is required. In all elections of directors, each shareholder shall have the right to vote the number of
shares owned by him for as many persons as there are directors to be elected, or to cumulate such shares and give one candidate as many votes as the number of directors multiplied by the number of his shares equal, or to distribute them on the same
principle among as many candidates as he shall think fit.
5
Section 6. Waiver and Consent
The shareholders may act without notice or a meeting by a unanimous written consent by all shareholders.
ARTICLE II.
BOARD OF
DIRECTORS
Section 1. Term of Office
The directors of this Association shall hold office for one year and until their successors are duly elected and qualified.
Section 2. Number
As provided in
the Articles of Association, the Board of this Association shall consist of not less than five nor more than twenty-five members. At any meeting of the shareholders held for the purpose of electing directors, or changing the number thereof, the
number of directors may be determined by a majority of the votes cast by the shareholders in person or by proxy. Any vacancy occurring in the Board shall be filled by the remaining directors. Between meetings of the shareholders held for the purpose
of electing directors, the Board by a majority vote of the full Board may increase the size of the Board by not more than four directors in any one but not to more than a total of twenty-five directors, and fill any vacancy so created in the Board.
All directors shall hold office until their successors are elected and qualified.
Section 3. Regular Meetings
The organizational meeting of the Board of Directors shall be held as soon as practicable following the annual meeting of shareholders at such
time and place as the Chairman or President may designate. Other regular meetings of the Board of Directors shall be held quarterly at such time and place as may be designated in the notice of the meeting. When any regular meeting of the Board falls
on a holiday, the meeting shall be held on the next banking business day, unless the Board shall designate some other day.
Section 4. Special
Meetings
Special meetings of the Board of Directors may be called by the Chairman of the Board of the Association, or at the request
of three or more Directors. Notice of the time, place and purposes of such meetings shall be given by letter, by telephone, in person, by facsimile, by electronic mail or other reasonable manner to every Director.
Section 5. Quorum
A majority of the
entire membership of the Board shall constitute a quorum of any meeting of the Board.
6
Section 6. Necessary Vote
A majority of those Directors present and voting at any meeting of the Board of Directors shall decide each matter considered, except where
otherwise required by law or the Articles or Bylaws of this Association.
Section 7. Compensation
Directors, excluding full-time employees of the Bank, shall receive such reasonable compensation as may be fixed from time to time by the Board
of Directors.
ARTICLE III.
OFFICERS
Section 1. Who Shall
Constitute
The Officers of the Association shall be a Chairman of the Board, Chief Executive Officer, a President, a Secretary, and
other officers such as Vice Chairman of the Board, Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant Vice Presidents, Assistant Secretaries, Trust Officers, Assistant Trust Officers, Controller, and Assistant Controller,
as the Board may appoint from time to time. The Board may choose to delegate authority to elect officers other than the Chairman, Chief Executive Officer, President, Secretary, Vice Chairman and Executive Vice Presidents, to the Chief Executive
Officer or President. Any person may hold two offices. The Chief Executive Officer and the President shall at all times be members of the Board of Directors.
Section 2. Term of Office
All
officers shall be elected for and shall hold office until their respective successors are elected and qualified or until their earlier death, resignation, retirement, disqualification or removal from office, subject to the right of the Board of
Directors in its sole discretion to discharge any officer at any time.
Section 3. Chairman of the Board
The Chairman of the Board shall have general executive powers and duties and shall perform such other duties as may be assigned from time to
time by the Board of Directors. He shall, when present, preside at all meetings of the shareholders and directors and shall be ex officio a member of all committees of the Board.
Section 4. Chief Executive Officer
The Chief Executive Officer, who may also be the Chairman or the President, shall have general executive powers and duties and shall perform
such other duties as may be assigned from time to time by the Board of Directors.
7
Section 5. President
The President shall have general executive powers and duties and shall perform such other duties as may be assigned from time to time by the
board of Directors. In addition, if designated by the Board of Directors, the President shall be the Chief Executive Officer and shall have all the powers and duties of the Chief Executive Officer, including the same power to name temporarily a
Chief Executive Officer to serve in the absence of the President if there is a vacancy in the position of the chairman or in the event of the absence or incapacity of the Chairman.
Section 6. Vice Chairmen of the Board
The Board of Directors shall have the power to elect one or more Vice Chairmen of the Board of Directors. Any such Vice Chairman of the Board
shall participate in the formation of the policies of the Association and shall have such other duties as may be assigned to him from time to time by the Chairman of the Board or by the Board of Directors.
Section 7. Other Officers
The
Secretary and all other officers appointed by the Board of Directors shall have such duties as defined by law and as may from time to time be assigned to them by the Chief Executive Officer or the Board of Directors.
ARTICLE IV.
COMMITTES
Section 1. Compensation Committee
The duties of the Compensation Committee of the Association shall be carried out by the Compensation Committee of the financial holding company
that is the parent of this Association.
Section 2. Committee on Audit
The duties of the Audit Committee of the Association shall be carried out by the Audit Committee of the financial holding company that is the
parent of this Association.
Section 3. Trust Management Committee
The Board of Directors of this Association shall appoint a Trust Management Committee to provide oversight of the fiduciary activities of the
Association. The Trust Management Committee shall determine policies governing fiduciary activities. The Trust Management Committee or such sub-committees, officers or others as may be duly designated by the Trust Management Committee shall oversee
the processes related to fiduciary activities to assure conformity with fiduciary policies it establishes, including ratifying the acceptance and the closing out or relinquishment of all trusts. All actions of the Trust Committee shall be reported
to the Board of Directors.
8
Section 4. Other Committees
The Board of Directors may appoint, from time to time, other committees for such purposes and with such powers as the Board may direct.
ARTICLE V.
MINUTE BOOK
The organization papers of this Association, the Bylaws as revised or amended from time to time and the proceedings of all regular
and special meetings of the shareholders and the directors shall be recorded in a minute book or books. All reports of committees required to be made to the Board shall be recorded in a minute book or shall be filed by the recording officer. The
minutes of each meeting of the shareholders and the Board shall be signed by the recording officer.
ARTICLE VI.
CONVEYANCES, CONTRACTS, ETC.
All transfers and conveyances of real estate, mortgages, and transfers, endorsements or assignments of stock, bonds, notes, debentures or
other negotiable instruments, securities or personal property shall be signed by any elected or appointed officer.
All checks, drafts,
certificates of deposit and all funds of the Association held in its own or in a fiduciary capacity may be paid out by an order, draft or check bearing the manual or facsimile signature of any elected or appointed officer of the Association.
All mortgage satisfactions, releases, all types of loan agreements, all routine transactional documents of the Association, and all other
instruments not specifically provided for, whether to be executed in a fiduciary capacity or otherwise, may be signed on behalf of the Association by any elected or appointed officer thereof.
The Secretary or any Assistant Secretary of the Association or other proper officer may execute and certify that required action or authority
has been given or has taken place by resolution of the Board under this Bylaw without the necessity of further action by the Board.
ARTICLE VII.
SEAL
The Association shall have no corporate seal.
ARTICLE VIII.
INDEMNIFICATION OF DIRECTORS,
OFFICERS, AND EMPLOYEES
Section 1.
General.
The Association shall indemnify to the full extent permitted by and in the manner permissible under the Delaware General
Corporation Law, as amended from time to time (but, in
9
the case of any such amendment, only to the extent that such amendment permits the Association to provide broader indemnification rights than said law permitted the Association to provide prior
to such amendment), any person made, or threatened to be made, a party to any action, suit, or proceeding, whether criminal, civil, administrative, or investigative, by reason of the fact that such person (i) is or was a director, advisory
director, or officer of the Association or any predecessor of the Association, or (ii) is or was a director, advisory director or officer of the Association or any predecessor of the Association and served any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise as a director, advisory director, officer, partner, trustee, employee or agent at the request of the Association or any predecessor of the Association; provided, however,
that the Association shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person, except for a proceeding contemplated by Section 4 of this Article VIII, only if such
proceeding (or part thereof) was authorized by the Board of Directors.
Section 2. Advancement of Expenses.
The right to indemnification conferred in this Article VIII shall be a contract right and shall include the right to be paid by the Association the expenses
incurred in defending any such proceeding or threatened proceeding in advance of its final disposition, such advances to be paid by the Association within 20 days after the receipt by the Association of a statement or statements from the claimant
requesting such advance or advances from time to time; provided, however, that if the General Corporation Law of the State of Delaware requires, the payment of such expenses incurred by a director, advisory director or officer in his
or her capacity as a director, advisory director or officer (and not in any other capacity in which service was or is rendered by such person while a director, advisory director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Association of an undertaking by or on behalf of such director, advisory director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director, advisory director or officer is not entitled to be indemnified under this Article VIII or otherwise.
Section 3. Procedure for Indemnification.
To obtain indemnification under this Article VIII, a claimant shall submit to the Association a written request, including therein or therewith
such documentation and information as is reasonably available to the claimant and is reasonably necessary to determine whether and to what extent the claimant is entitled to indemnification. Upon written request by a claimant for indemnification
pursuant to the first sentence of this Section 3, a determination, if required by applicable law, with respect to the claimants entitlement thereto shall be made as follows: (1) if requested by the claimant, by Independent Counsel
(as hereinafter defined), or (2) if no request is made by the claimant for a determination by Independent Counsel, (i) by a majority vote of the Disinterested Directors (as hereinafter defined), even though less than a quorum, or by a
majority vote of a committee of Disinterested Directors designated by a majority vote of Disinterested Directors, even though less than a quorum, or (ii) if there are no Disinterested
10
Directors or if the Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the claimant. In the event the
determination of entitlement to indemnification is to be made by Independent Counsel at the request of the claimant, the Independent Counsel shall be selected by the Board of Directors. If it is so determined that the claimant is entitled to
indemnification, payment to the claimant shall be made within 10 days after such determination.
Section 4. Certain Remedies.
If a claim under Section 1 of this Article VIII is not paid in full by the Association within thirty days after a written claim pursuant
to Section 3 of this Article VIII has been received by the Association, or if a claim under Section 2 of this Article VIII is not paid in full by the Association within twenty days after a written claim pursuant to Section 2 of this
Article VIII has been received by the Association, the claimant may at any time thereafter bring suit against the Association to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid
also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Association) that the claimant has not met the standard of conduct which makes it permissible under the General Corporation Law of the State of Delaware for the Association to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be on the Association. Neither the failure of the Association (including its Board of Directors or Independent Counsel) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual
determination by the Association (including its Board of Directors or Independent Counsel) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 5. Binding Effect.
If a determination shall have been made pursuant to Section 3 of this Article VIII that the claimant is entitled to indemnification, the
Association shall be bound by such determination in any judicial proceeding commenced pursuant to Section 4 of this Article VIII.
Section 6.
Validity of this Article VIII.
The Association shall be precluded from asserting in any judicial proceeding commenced pursuant to
Section 4 of this Article VIII that the procedures and presumptions of this Article VIII are not valid, binding and enforceable and shall stipulate in such proceeding that the Association is bound by all the provisions of this Article VIII.
11
Section 7. Nonexclusivity, etc.
The right to indemnification and the payment of expenses incurred in defending a proceeding or threatened proceeding in advance of its final
disposition conferred in this Article VIII shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Articles of Association, Bylaws, agreement, vote of shareholders or Disinterested
Directors or otherwise. No repeal or modification of this Article VIII, or adoption of any provision inconsistent herewith shall in any way diminish or adversely affect the rights of any present or former director, advisory director, officer,
employee or agent of the Association or any predecessor thereof hereunder in respect of any occurrence or matter arising, or of any claim involving allegations of acts or omissions occurring or arising, prior to any such repeal or modification.
Section 8. Insurance.
The
Association may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Association or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or
loss, whether or not the Association would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of the State of Delaware. To the extent that the Association maintains any policy or
policies providing such insurance, each such director or officer, and each such agent or employee to whom rights to indemnification have been granted as provided in Section 9 of this Article VIII, shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the coverage thereunder for any such director, officer, employee or agent.
Section 9.
Indemnification of Other Persons.
The Association may grant rights to indemnification, and rights to be paid by the Association the
expenses incurred in defending any proceeding in advance of its final disposition, to any present or former employee or agent of the Association or any predecessor of the Association to the fullest extent of the provisions of this Article VIII with
respect to the indemnification and advancement of expenses of directors, advisory directors and officers of the Association.
Section 10.
Severability.
If any provision or provisions of this Article VIII shall be held to be invalid, illegal or unenforceable for any
reason whatsoever: (1) the validity, legality and enforceability of the remaining provisions of this Article VIII (including, without limitation, each portion of any paragraph of this Article VIII containing any such provision held to be
invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (2) to the fullest extent possible, the provisions of this Article VIII (including,
without limitation, each such portion of any paragraph of this Article VIII containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
12
Section 11. Certain Definitions.
For purposes of this Article VI:
(1) Disinterested Director means a director of the Association who is not and was not a party to the matter in
respect of which indemnification is sought by the claimant.
(2) Independent Counsel means a law firm, a member
of a law firm, or an independent practitioner that is experienced in matters of corporation law and shall include any such person who, under the applicable standards of professional conduct then prevailing, would not have a conflict of interest in
representing either the Association or the claimant in an action to determine the claimants rights under this Article VIII.
Section 12.
Notices.
Any notice, request or other communication required or permitted to be given to the Association under this Article VIII
shall be in writing and either delivered in person or sent by telecopy, telex, telegram, overnight mail or courier service, or certified or registered mail, postage prepaid, return receipt requested, to the Secretary of the Association and shall be
effective only upon receipt by the Secretary.
Section 13. Payments
Notwithstanding any other provision of this Article VIII, however, (a) any indemnification payments to an institution-affiliated party, as
defined at 12 USC 1813(u), for an administrative proceeding or civil action initiated by a federal banking agency, shall be reasonable and consistent with the requirements of 12 USC 1828(k) and the associated regulations; and (b) any
indemnification payments and advancement of costs and expenses to an institution-affiliated party, as defined at 12 USC 1813(u), in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, shall be
consistent with safe and sound banking practices.
ARTICLE IX.
AMENDMENTS
These Bylaws,
or any of them, may be added to, altered, amended or repealed by the Board at any regular or special meeting of the Board.
ARTICLE X.
GOVERNING
LAW
This Association designates the Delaware General Corporation Law, as amended from time to time, as the governing law for its
corporate governance procedures, to the extent not inconsistent with Federal banking statutes and regulations.
October 20, 2014
13
Exhibit 6
CONSENT
In accordance
with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by
such authorities to the Securities and Exchange Commission upon its request therefor.
|
|
|
|
|
|
|
Dated: December 8, 2014 |
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Felicia H. Powell |
|
|
|
|
|
|
Felicia H. Powell |
|
|
|
|
|
|
Assistant Vice President |
14
Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
As of 9/30/2014
($000s)
|
|
|
|
|
|
|
9/30/2014 |
|
Assets |
|
|
|
|
Cash and Balances Due From Depository Institutions |
|
$ |
6,169,498 |
|
Securities |
|
|
96,412,984 |
|
Federal Funds |
|
|
61,856 |
|
Loans & Lease Financing Receivables |
|
|
244,220,646 |
|
Fixed Assets |
|
|
4,101,858 |
|
Intangible Assets |
|
|
13,291,012 |
|
Other Assets |
|
|
22,775,893 |
|
|
|
|
|
|
Total Assets |
|
$ |
387,033,747 |
|
|
|
Liabilities |
|
|
|
|
Deposits |
|
$ |
284,226,575 |
|
Fed Funds |
|
|
1,282,645 |
|
Treasury Demand Notes |
|
|
0 |
|
Trading Liabilities |
|
|
565,781 |
|
Other Borrowed Money |
|
|
42,642,374 |
|
Acceptances |
|
|
0 |
|
Subordinated Notes and Debentures |
|
|
5,023,000 |
|
Other Liabilities |
|
|
12,043,509 |
|
|
|
|
|
|
Total Liabilities |
|
$ |
345,783,884 |
|
|
|
Equity |
|
|
|
|
Common and Preferred Stock |
|
|
18,200 |
|
Surplus |
|
|
14,266,407 |
|
Undivided Profits |
|
|
26,110,078 |
|
Minority Interest in Subsidiaries |
|
$ |
855,178 |
|
|
|
|
|
|
Total Equity Capital |
|
$ |
41,249,863 |
|
|
|
Total Liabilities and Equity Capital |
|
$ |
387,033,747 |
|
15
MIDCOAST ENERGY PARTNERS, L.P. (NYSE:MEP)
Gráfico Histórico do Ativo
De Ago 2024 até Set 2024
MIDCOAST ENERGY PARTNERS, L.P. (NYSE:MEP)
Gráfico Histórico do Ativo
De Set 2023 até Set 2024