Exhibit 4.2
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ENERGY TRANSFER PARTNERS, L.P.,
as Issuer,
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
as Subsidiary Guarantors,
and
WACHOVIA BANK,
NATIONAL ASSOCIATION,
as Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of January 18, 2005
to
Indenture dated as of January 18, 2005
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5.95% Senior Notes due 2015
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS.................................................... 1
SECTION 1.1 Generally............................................. 1
SECTION 1.2 Definition of Certain Terms........................... 2
ARTICLE II GENERAL TERMS OF THE NOTES..................................... 7
SECTION 2.1 Form.................................................. 7
SECTION 2.2 Title, Amount and Payment of Principal and Interest... 7
SECTION 2.3 Transfer and Exchange................................. 8
SECTION 2.4 Legends............................................... 9
SECTION 2.5 Registration Rights Agreement......................... 12
SECTION 2.6 Rule 144A Securities.................................. 12
ARTICLE III GUARANTEES..................................................... 12
SECTION 3.1 Guarantee of the Notes by Subsidiary Guarantors....... 12
SECTION 3.2 Additional Subsidiary Guarantors...................... 12
SECTION 3.3 Release of Guarantees................................. 12
SECTION 3.4 Reinstatement of Guarantees........................... 12
ARTICLE IV REDEMPTION..................................................... 13
SECTION 4.1 Redemption............................................ 13
ARTICLE V ADDITIONAL COVENANTS........................................... 13
SECTION 5.1 Limitation on Liens................................... 13
SECTION 5.2 Restriction on Sale-Leasebacks........................ 14
ARTICLE VI ADDITIONAL EVENT OF DEFAULT.................................... 15
SECTION 6.1 Additional Event of Default........................... 15
ARTICLE VII MISCELLANEOUS PROVISIONS....................................... 15
SECTION 7.1 Ratification of Base Indenture........................ 15
SECTION 7.2 Trustee not Responsible for Recitals.................. 15
SECTION 7.3 Table of Contents, Headings, etc...................... 15
SECTION 7.4 Counterpart Originals................................. 15
SECTION 7.5 Governing Law......................................... 15
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EXHIBIT A Form of Note.......................................................... A-1
EXHIBIT B Form of Certificate to be Delivered Upon Exchange or Registration
of Transfer Notes..................................................... B-1
EXHIBIT C Form of Certificate to be Delivered in Connection with Transfers
Pursuant to Regulation S.............................................. C-1
THIS FIRST SUPPLEMENTAL INDENTURE dated as of January 18, 2005, is among
Energy Transfer Partners, L.P., a Delaware limited partnership (the
"Partnership"), the parties identified as "Subsidiary Guarantors" on the
signature pages hereto (the "Subsidiary Guarantors"), and Wachovia Bank,
National Association, a national banking association, as trustee (the
"Trustee").
RECITALS:
WHEREAS, the Partnership and the Subsidiary Guarantors have executed and
delivered to the Trustee an Indenture, dated as of the date hereof (the "Base
Indenture" and as supplemented by this First Supplemental Indenture, the
"Indenture"), providing for the issuance by the Partnership from time to time of
its debentures, notes, bonds or other evidences of indebtedness to be issued in
one or more series unlimited as to principal amount (the "Debt Securities"), and
the Guarantee (as defined in the Base Indenture) by each of the Subsidiary
Guarantors of the Debt Securities;
WHEREAS, the Partnership has duly authorized and desires to cause to be
established pursuant to the Base Indenture and this First Supplemental Indenture
a new series of Debt Securities designated the "5.95% Senior Notes due 2015"
(the "Notes") to be guaranteed by the Subsidiary Guarantors as provided in
Article X of the Base Indenture;
WHEREAS, Sections 2.01 and 2.04 of the Base Indenture permit the execution
of indentures supplemental thereto to establish the form and terms of Debt
Securities of any series;
WHEREAS, pursuant to Section 9.01 of the Base Indenture, the Partnership
and the Subsidiary Guarantors have requested that the Trustee join in the
execution of this First Supplemental Indenture to establish the form and terms
of the Notes;
WHEREAS, all things necessary have been done to make the Notes, when
executed by the Partnership and authenticated and delivered hereunder and under
the Base Indenture and duly issued by the Partnership, and the Guarantee of the
Subsidiary Guarantors, when the Notes are duly issued by the Partnership, the
valid obligations of the Partnership and the Subsidiary Guarantors,
respectively, and to make this First Supplemental Indenture a valid agreement of
the Partnership and the Subsidiary Guarantors enforceable in accordance with its
terms.
NOW, THEREFORE, the Partnership, the Subsidiary Guarantors and the Trustee
hereby agree that the following provisions shall supplement the Base Indenture:
ARTICLE I
DEFINITIONS
SECTION 1.1 Generally.
(a) Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings ascribed thereto in the Base Indenture.
(b) The rules of interpretation set forth in the Base Indenture shall be
applied hereto as if set forth in full herein.
SECTION 1.2 Definition of Certain Terms.
For all purposes of this First Supplemental Indenture, except as otherwise
expressly provided or unless the context otherwise requires, the following terms
shall have the following respective meanings:
"Attributable Indebtedness", when used with respect to any Sale-Leaseback
Transaction (as defined in Section 5.2 hereof), means, as at the time of
determination, the present value (discounted at the rate set forth or implicit
in the terms of the lease included in such transaction) of the total obligations
of the lessee for rental payments (other than amounts required to be paid on
account of property taxes, maintenance, repairs, insurance, assessments,
utilities, operating and labor costs and other items that do not constitute
payments for property rights) during the remaining term of the lease included in
such Sale-Leaseback Transaction (including any period for which such lease has
been extended). In the case of any lease that is terminable by the lessee upon
the payment of a penalty or other termination payment, such amount shall be the
lesser of the amount determined assuming termination upon the first date such
lease may be terminated (in which case the amount shall also include the amount
of the penalty or termination payment, but no rent shall be considered as
required to be paid under such lease subsequent to the first date upon which it
may be so terminated) or the amount determined assuming so such termination.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes to be redeemed; provided, however, that if no
maturity is within three months before or after the maturity date for such
Notes, yields for the two published maturities most closely corresponding to
such United States Treasury security will be determined and the treasury rate
will be interpolated or extrapolated from those yields on a straight line basis
rounding to the nearest month.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(a) the average of four Reference Treasury Dealer Quotations for the Redemption
Date, after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (b) if the Independent Investment Banker obtains fewer than four
Reference Treasury Dealer Quotations, the average of all such quotations.
"Consolidated Net Tangible Assets" means, at any date of determination,
the total amount of assets of the Partnership and its consolidated Subsidiaries
after deducting therefrom:
(1) all current liabilities (excluding (A) any current liabilities
that by their terms are extendable or renewable at the option of the obligor
thereon to a time more than twelve months after the time as of which the amount
thereof is being computed, and (B) current maturities of long-term debt); and
(2) the value (net of any applicable reserves) of all goodwill,
trade names, trademarks, patents and other like intangible assets,
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all as set forth, or on a pro forma basis would be set forth, on the
consolidated balance sheet of the Partnership and its consolidated Subsidiaries
for the Partnership's most recently completed fiscal quarter for which financial
statements have been filed with the SEC, prepared in accordance with generally
accepted accounting principles.
"Credit Agreement" means the Credit Agreement dated as of January 18, 2005
among the Partnership, Wachovia Bank, National Association, as Administrative
Agent, and the other agents and lenders party thereto as amended, restated,
refinanced, replaced or refunded from time to time.
"Indebtedness" of any Person at any date means any obligation created or
assumed by such Person for the repayment of borrowed money or any guaranty
thereof.
"Independent Investment Banker" means Wachovia Capital Markets, LLC (and
its successors) or if such firm is not willing and able to select the applicable
Comparable Treasury Issue, an independent investment banking institution of
national standing appointed by the Trustee and reasonably acceptable to the
Partnership.
"Permitted Liens" means:
(1) liens upon rights-of-way for pipeline purposes;
(2) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on the use
of real property or minor imperfections in title thereto and which do not in the
aggregate materially adversely affect the value of the properties encumbered
thereby or materially impair their use in the operation of the business of the
Partnership and its Subsidiaries;
(3) rights reserved to or vested by any provision of law in any
municipality or public authority to control or regulate any of the properties of
the Partnership or any Subsidiary or the use thereof or the rights and interests
of the Partnership or any Subsidiary therein, in any manner under any and all
laws;
(4) rights reserved to the grantors of any properties of the
Partnership or any Subsidiary, and the restrictions, conditions, restrictive
covenants and limitations, in respect thereto, pursuant to the terms, conditions
and provisions of any rights-of-way agreements, contracts or other agreements
therewith;
(5) any statutory or governmental lien or lien arising by operation
of law, or any mechanics', repairmen's, materialmen's, suppliers', carriers',
landlords', warehousemen's or similar lien incurred in the ordinary course of
business which is not more than sixty (60) days past due or which is being
contested in good faith by appropriate proceedings and any undetermined lien
which is incidental to construction, development, improvement or repair;
(6) any right reserved to, or vested in, any municipality or public
authority by the terms of any right, power, franchise, grant, license, permit or
by any provision of law, to purchase or recapture or to designate a purchaser
of, any property;
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(7) liens for taxes and assessments which are (a) for the then
current year, (b) not at the time delinquent, or (c) delinquent but the validity
or amount of which is being contested at the time by the Partnership or any of
its Subsidiaries in good faith by appropriate proceedings;
(8) liens of, or to secure performance of, leases, other than
capital leases;
(9) any lien in favor of the Partnership or any Subsidiary
Guarantor;
(10) any lien upon any property or assets of the the Partnership or
any Subsidiary in existence on the date of the initial issuance of the Notes;
(11) any lien incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance, temporary
disability, social security, retiree health or similar laws or regulations or to
secure obligations imposed by statute or governmental regulations;
(12) liens in favor of any Person to secure obligations under
provisions of any letters of credit, bank guarantees, bonds or surety
obligations required or requested by any governmental authority in connection
with any contract or statute, provided that such obligations do not constitute
Indebtedness; or any lien upon or deposits of any assets to secure performance
of bids, trade contracts, leases or statutory obligations, and other obligations
of a like nature incurred in the ordinary course of business;
(13) any lien upon any property or assets created at the time of
acquisition of such property or assets by the Partnership or any of its
Subsidiaries or within one year after such time to secure all or a portion of
the purchase price for such property or assets or debt incurred to finance such
purchase price, whether such debt was incurred prior to, at the time of or
within one year after the date of such acquisition;
(14) any lien upon any property or assets to secure all or part of
the cost of construction, development, repair or improvements thereon or to
secure Indebtedness incurred prior to, at the time of, or within one year after
completion of such construction, development, repair or improvements or the
commencement of full operations thereof (whichever is later), to provide finds
for any such purpose;
(15) any lien upon any property or assets existing thereon at the
time of the acquisition thereof by the Partnership or any of its Subsidiaries
and any lien upon any property or assets of a Person existing thereon at the
time such Person becomes a Subsidiary of the Partnership by acquisition, merger
or otherwise; provided that, in each case, such lien only encumbers the property
or assets so acquired or owned by such Person at the time such Person becomes a
Subsidiary;
(16) liens imposed by law or order as a result of any proceeding
before any court or regulatory body that is being contested in good faith, and
liens which secure a judgment or other court-ordered award or settlement as to
which the Partnership or the applicable Subsidiary has not exhausted its
appellate rights;
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(17) any extension, renewal, refinancing, refunding or replacement
(or successive extensions, renewals, refinancing, refunding or replacements) of
liens, in whole or in part, referred to in clauses (1) through (16) above;
provided, however, that any such extension, renewal, refinancing, refunding or
replacement lien shall be limited to the property or assets covered by the lien
extended, renewed, refinanced, refunded or replaced and that the obligations
secured by any such extension, renewal, refinancing, refunding or replacement
lien shall be in an amount not greater than the amount of the obligations
secured by the lien extended, renewed, refinanced, refunded or replaced and any
expenses of the Partnership or its Subsidiaries (including any premium) incurred
in connection with such extension, renewal, refinancing, refunding or
replacement; or
(18) any lien resulting from the deposit of moneys or evidence of
indebtedness in trust for the purpose of defeasing Indebtedness of the
Partnership or any of its Subsidiaries.
"Principal Property" means, whether owned or leased on the date hereof or
thereafter acquired:
(1) any pipeline assets of the Partnership or any of its
Subsidiaries, including any related facilities employed in the gathering,
transportation, distribution, storage or marketing of natural gas, refined
petroleum products, natural gas liquids and petrochemicals, that are located in
the United States of America or any territory or political subdivision thereof;
and
(2) any processing, compression, treating, blending or manufacturing
plant or terminal owned or leased by the Partnership or any of its Subsidiaries
that is located in the United States or any territory or political subdivision
thereof, except in the case of either of the preceding clauses (1) or (2):
(a) any such assets consisting of inventories, furniture,
office fixtures and equipment (including data processing equipment), vehicles
and equipment used on, or useful with, vehicles;
(b) any such assets which, in the opinion of the board of
directors of the General Partner are not material in relation to the activities
of the Partnership and its Subsidiaries taken as a whole; and
(c) any assets used primarily in the conduct of the retail
propane marketing business conducted by Heritage Operating, L.P. and its
Subsidiaries.
"Reference Treasury Dealer" means (a) Wachovia Capital Markets, LLC and
three other primary U.S. government securities dealers in New York City selected
by the Independent Investment Banker (each, a "Primary Treasury Dealer") and
their respective successors; provided, however, that if any of the foregoing
shall cease to be a Primary Treasury Dealer, the Partnership will substitute
therefor another Primary Treasury Dealer and (b) any other Primary Treasury
Dealer selected by the Partnership.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date for the Notes, an average, as
determined by the Independent Investment Banker, of the bid and asked prices for
the Comparable Treasury Issue for the Notes
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(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Redemption Date.
"Restricted Subsidiary" means any Subsidiary owning or leasing, directly
or indirectly through ownership in another Subsidiary, any Principal Property.
"Treasury Yield" means, with respect to any Redemption Date applicable to
the Notes, (a) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published statistical
release designated "H.15(519)" or any successor publication which is published
weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Comparable Treasury Issue; or (b) if the release
(or any successor release) is not published during the week preceding the
calculation date or does not contain these yields, the rate per annum equal to
the semi-annual equivalent yield to maturity (computed as of the third Business
Day immediately preceding such Redemption Date) of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the applicable Comparable Treasury
Price for such Redemption Date.
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ARTICLE II
GENERAL TERMS OF THE NOTES
SECTION 2.1 Form.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A to this First Supplemental Indenture,
which is hereby incorporated into this First Supplemental Indenture. The terms
and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this First Supplemental Indenture and to the extent applicable,
the Partnership, the Subsidiary Guarantors and the Trustee, by their execution
and delivery of this First Supplemental Indenture, expressly agree to such terms
and provisions and to be bound thereby.
The Notes shall be issued upon original issuance in whole in the form of
one or more Global Securities (the "Book-Entry Notes"). Each Book-Entry Note
shall represent such of the outstanding Notes as shall be specified therein and
shall provide that it shall represent the aggregate amount of outstanding Notes
from time to time endorsed thereon and that the aggregate amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions.
The Partnership initially appoints The Depository Trust Company to act as
Depositary with respect to the Book-Entry Notes.
SECTION 2.2 Title, Amount and Payment of Principal and Interest.
The Notes shall be entitled the "5.95% Senior Notes due 2015". The Trustee
shall authenticate and deliver Notes for original issue on the date hereof (the
"Original Notes") in the aggregate principal amount of $750,000,000, (ii)
additional Notes for original issue from time to time after the date hereof in
such principal amounts as may be specified in a Partnership Order described in
this sentence, provided that no such additional Notes may be issued at a price
that would cause such Notes to have "original issue discount" within the meaning
of the Internal Revenue Code of 1986, as amended, and (iii) Exchange Notes (as
defined in the Registration Rights Agreement referred to in Section 2.5 hereof)
for original issue from time to time thereafter for issue only in exchange for a
like principal amount of Notes, in each case upon a Partnership Order for the
authentication and delivery thereof and satisfaction of the other provisions of
Section 2.04 of the Base Indenture. Such order shall specify the amount of the
Notes to be authenticated, the date on which the original issue of Notes is to
be authenticated, and the name or names of the initial Holder or Holders. The
aggregate principal amount of Notes that may be outstanding at any time may not
exceed $750,000,000 plus such additional principal amounts as may be issued and
authenticated pursuant to clause (ii) of this paragraph (except as provided in
Section 2.09 of the Indenture). The Original Notes, the Exchange Notes and any
additional Notes issued and authenticated pursuant to clause (ii) of this
paragraph shall constitute a single series of Debt Securities for all purposes
under the Indenture.
The principal amount of each Note shall be payable on February 1, 2015.
Each Note shall bear interest from the date of original issuance, or the most
recent date to which interest has been
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paid, at the fixed rate of 5.95% per annum; provided, however, that each
Exchange Note shall bear interest at the same rate from the most recent date to
which interest shall have been paid on the Note for which such Exchange Note was
exchanged or, if no interest shall have been paid on such Note, then from the
date of original issuance of such Note. The dates on which interest on the Notes
shall be payable shall be February 1 and August 1 of each year, commencing
August 1, 2005 (the "Interest Payment Dates"). The regular record date for
interest payable on the Notes on any Interest Payment Date shall be the January
15 or July 15 (the "Regular Record Date"), as the case may be, next preceding
such Interest Payment Date.
Payments of principal of, premium, if any, and interest due on the Notes
representing Book-Entry Notes on any Interest Payment Date or at maturity will
be made available to the Trustee by 10:00 a.m., New York City time, on such
date, unless such date falls on a day which is not a Business Day, in which case
such payments will be made available to the Trustee by 10:00 a.m., New York City
time, on the next Business Day. As soon as possible thereafter, the Trustee will
make such payments to the Depositary.
SECTION 2.3 Transfer and Exchange.
(a) Transfer and Exchange of Notes in Definitive Form. In addition to the
requirements set forth in Section 2.08 of the Base Indenture, Notes in
definitive form that are Registrable Securities under the Registration Rights
Agreement referred to in Section 2.5 hereof (the "Transfer Restricted
Securities") presented or surrendered for registration of transfer or exchange
pursuant to Section 2.08 of the Base Indenture shall be accompanied by the
following additional information and documents, as applicable, upon which the
Registrar may conclusively rely:
(i) if such Transfer Restricted Securities are being delivered to
the Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to that effect (in
substantially the form of Exhibit B hereto); or
(ii) if such Transfer Restricted Securities are being transferred
(1) to a "qualified institutional buyer" (as defined in Rule 144A under
the Securities Act) in accordance with Rule 144A under the Securities Act
or (2) pursuant to an exemption from registration in accordance with Rule
144 under the Securities Act (and based upon an opinion of counsel if the
Partnership or the Trustee so requests) or (3) pursuant to an effective
registration statement under the Securities Act, a certification to that
effect from such Holder (in substantially the form of Exhibit B hereto);
or
(iii) if such Transfer Restricted Securities are being transferred
pursuant to an exemption from registration in accordance with Rule 904 of
Regulation S under the Securities Act, certifications to that effect from
such Holder (in substantially the form of Exhibits B and C hereto) and an
opinion of counsel to that effect if the Partnership or the Trustee so
requests; or
(iv) if such Transfer Restricted Securities are being transferred in
reliance on and in compliance with another exemption from the registration
requirements of the Securities Act, a certification to that effect from
such Holder (in substantially the form of
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Exhibit B hereto) and an opinion of counsel to that effect if the
Partnership or the Trustee so requests.
(b) Transfer and Exchange of Global Notes. The transfer and exchange of
Book-Entry Notes or beneficial interests therein shall be effected through the
Depositary, in accordance with Section 2.17 of the Base Indenture and Article II
of this First Supplemental Indenture (including the restrictions on transfer set
forth therein and herein) and the rules and procedures of the Depositary
therefor, which shall include restrictions on transfer comparable to those set
forth therein and herein to the extent required by the Securities Act of 1933,
as amended.
SECTION 2.4 Legends.
(a) Except as permitted by the following paragraphs (b) and (c)
immediately below, each certificate evidencing the Book-Entry Notes and Notes in
definitive form (and all Notes issued in exchange therefor or substitution
thereof) shall bear a legend in substantially the following form:
THIS SECURITY (AND ANY GUARANTEE HEREOF) HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO OR FOR THE ACCOUNT OR BENEFIT OF U.S. PERSONS EXCEPT AS
SET FORTH BELOW. BY ITS ACCEPTANCE HEREOF, THE HOLDER AGREES THAT IT
WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO
THE ISSUER THEREOF OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED
STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER DEALER) TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM
OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY,
(D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE),
(E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, INCLUDING THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND AGREES THAT IT WILL GIVE TO EACH PERSON
TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND IN CONNECTION WITH ANY TRANSFER OF THIS
SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
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SECURITY. IF THE PROPOSED TRANSFER IS MADE PURSUANT TO CLAUSES (C)
THROUGH (E) ABOVE, THE HODLER MUST, PRIOR TO SUCH TRANSFER, FURNISH
TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATON AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM
THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR
IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
In addition, if any of the Notes are issued in reliance on
Regulation S promulgated under the Securities Act, then such Notes
shall also bear a legend substantially in the following form:
THIS NOTE IS A GLOBAL SECURITY ISSUED IN RELIANCE ON REGULATION S
PROMULGATED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"). PRIOR TO THE EXPIRATION OF THE DISTRIBUTION
COMPLIANCE PERIOD WHICH SHALL EXTEND FOR A PERIOD OF FORTY (40) DAYS
AFTER THE DATE ON WHICH THE NOTES EVIDENCED HEREBY ARE FIRST OFFERED
TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S OR
THE DATE OF CLOSING OF THE OFFERING, WHICHEVER IS LATER, BENEFICIAL
INTERESTS HEREIN MAY NOT BE HELD BY ANY PERSON OTHER THAN (1) A
NON-U.S. PERSON OR (2) A U.S. PERSON WHO PURCHASED SUCH INTEREST IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT
PURSUANT TO RULE 144A PROMULGATED THEREUNDER. BENEFICIAL INTERESTS
HEREIN ARE NOT EXCHANGEABLE FOR PHYSICAL NOTES OTHER THAN IN
ACCORDANCE WITH THE TERMS OF THE INDENTURE. THE TERMS IN THIS LEGEND
ARE USED AS USED IN REGULATION S UNDER THE SECURITIES ACT.
(b) Upon any sale or transfer of a Transfer Restricted Security (including
any Transfer Restricted Security represented by a Book-Entry Note) pursuant to
Rule 144 under the Securities Act or an effective registration statement under
the Securities Act, which shall be certified to the Trustee and Registrar upon
which each may conclusively rely:
(i) in the case of any Transfer Restricted Security in definitive
form, the Registrar shall permit the Holder thereof to exchange such
Transfer Restricted Security for a Note in definitive form that does not
bear the legend(s) set forth in paragraph (a) above and rescind any
restriction on the transfer of such Transfer Restricted Security; and
(ii) in the case of any Transfer Restricted Security represented by
a Book-Entry Note, such Book-Entry Note shall not be required to bear the
legend(s) set forth in paragraph (a) above if all other interests in such
Book-Entry Note have been or are
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concurrently being sold or transferred pursuant to Rule 144 under the
Securities Act or pursuant to an effective registration statement under
the Securities Act, but such Book-Entry Note shall continue to be subject
to the provisions of Section 2.17 of the Base Indenture and Section 2.4(b)
of this First Supplemental Indenture.
(c) Notwithstanding the foregoing, upon consummation of the Exchange Offer
(as defined in the Registration Rights Agreement referred to in Section 2.5
hereof), the Partnership shall issue and, upon receipt of a Partnership Order in
accordance with Section 2.04 of the Base Indenture, the Trustee shall
authenticate Exchange Notes in exchange for a like principal amount of Notes
accepted for exchange in the Exchange Offer, which Exchange Notes shall not bear
the legend(s) set forth in paragraph (a) above, and the Registrar shall rescind
any restriction on the transfer of such Exchange Notes, in each case unless the
Holder of such Notes is either (A) a broker-dealer tendering Notes acquired
directly from the Partnership, (B) a Person participating in the Exchange Offer
for purposes of distributing the Exchange Notes or that does not acquire them in
the ordinary course of such Person's business or (C) a Person who is an
"affiliate" (as defined in Rule 405 under the Securities Act) of the
Partnership. The Partnership shall identify to the Trustee such Holders of the
Notes in a written certification signed by an Officer of the General Partner
and, absent certification from the Partnership to such effect, the Trustee shall
assume that there are no such Holders.
SECTION 2.5 Registration Rights Agreement.
Holders of the Notes shall have the benefit of the Partnership's and the
Subsidiary Guarantors's registration obligations with respect to the Notes under
the Registration Rights Agreement dated January 18, 2005 by and among the
Partnership, the Subsidiary Guarantors and the Initial Purchasers named therein.
Furthermore, unless the context otherwise requires, all references in the Base
Indenture, in this First Supplemental Indenture or in the Notes to "interest" in
relation to the Notes shall be deemed to include any additional interest that
may be owing with respect to the Notes under the Registration Rights Agreement.
SECTION 2.6 Rule 144A Securities.
The Notes constitute Rule 144A Securities within the meaning of the Base
Indenture and are entitled to the benefits of Section 4.03(b) of the Base
Indenture.
ARTICLE III
GUARANTEES
SECTION 3.1 Guarantee of the Notes by Subsidiary Guarantors.
In accordance with Article X of the Base Indenture, the Notes shall be
entitled to the benefits of the Guarantee of each of the Subsidiary Guarantors.
SECTION 3.2 Additional Subsidiary Guarantors.
If any Subsidiary of the Partnership that is not then a Subsidiary
Guarantor guarantees, becomes a co-obligor with respect to or otherwise provides
direct credit support for any obligations of the Partnership or any of its
Subsidiaries under the Credit Agreement, then the
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Partnership shall cause such Subsidiary to promptly execute and deliver a
supplemental indenture to the Indenture, in a form satisfactory to the Trustee,
providing for the Guarantee by such Subsidiary of the Partnership's obligations
under the Notes in accordance with Article X of the Base Indenture.
SECTION 3.3 Release of Guarantees.
In addition to the provisions of Section 10.04(a) of the Base Indenture,
the Guarantee of the Notes of any Subsidiary Guarantor shall be unconditionally
released and discharged, following delivery of written notice by the Partnership
to the Trustee, upon the release and discharge of all guarantees or other
obligations of such Subsidiary Guarantor with respect to the obligations of
Energy Transfer or its Subsidiaries under the Credit Agreement.
SECTION 3.4 Reinstatement of Guarantees.
If at any time following any release of the Guarantee of a Subsidiary
Guarantor pursuant to Section 3.3 above, such Subsidiary Guarantor again
guarantees, becomes a co-obligor with respect to or otherwise provides direct
credit support for any obligations of the Partnership or any of its Subsidiaries
under the Credit Agreement, then such Subsidiary Guarantor shall again guarantee
the Partnership's obligations under the Notes and the Partnership shall cause
such Subsidiary Guarantor to promptly execute and deliver a supplemental
indenture to the Indenture, in a form satisfactory to the Trustee, providing for
the Guarantee by such Subsidiary Guarantor of the Partnership's obligations
under the Notes in accordance with Article X of the Base Indenture.
ARTICLE IV
REDEMPTION
SECTION 4.1 Redemption.
Except as provided in this Section 4.1 and in paragraph 5 of the Notes,
the Partnership shall have no obligation to redeem, purchase or repay the Notes
pursuant to any mandatory redemption, sinking fund or analogous provisions or at
the option of a Holder thereof.
The Notes are redeemable, at the option of the Partnership, at any time in
whole, or from time to time in part, at a redemption price equal to the greater
of: (i) 100% of the principal amount of the Notes to be redeemed; or (ii) the
sum of the present values of the remaining scheduled payments of principal and
interest (at the rate in effect on the date of calculation of the redemption
price) on the Notes to be redeemed that would be due after the related
redemption date but for such redemption (exclusive of interest accrued to the
Redemption Date) discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the applicable
Treasury Yield plus 30 basis points; plus, in either case, accrued interest to
the Redemption Date.
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The actual redemption price, calculated as provided above, shall be
calculated and certified to the Trustee and the Partnership by the Independent
Investment Banker.
ARTICLE V
ADDITIONAL COVENANTS
In addition to the covenants set forth in the Base Indenture, the Notes
shall be entitled to the benefit of the following covenants:
SECTION 5.1 Limitation on Liens.
The Partnership shall not, nor shall it permit any of its Subsidiaries to,
create, assume, incur or suffer to exist any mortgage, lien, security interest,
pledge, charge or other encumbrance ("liens") upon any Principal Property or
upon any capital stock of any Restricted Subsidiary, whether owned on the date
hereof or thereafter acquired, to secure any Indebtedness of the Partnership or
any other Person (other than the Notes), without in any such case making
effective provisions whereby all of the outstanding Notes are secured equally
and ratably with, or prior to, such Indebtedness so long as such Indebtedness is
so secured.
Notwithstanding the foregoing, the Partnership may, and may permit any of
its Subsidiaries to, create, assume, incur, or suffer to exist without securing
the Notes (a) any Permitted Lien, (b) any lien upon any Principal Property or
capital stock of a Restricted Subsidiary to secure Indebtedness of the
Partnership or any other Person, provided that the aggregate principal amount of
all Indebtedness then outstanding secured by such lien and all similar liens
under this clause (b), together with all Attributable Indebtedness from
Sale-Leaseback Transactions (excluding Sale-Leaseback Transactions permitted by
clauses (1) through (4), inclusive, of Section 5.2 hereof), does not exceed 10%
of Consolidated Net Tangible Assets or (c) any lien upon (i) any Principal
Property that was not owned by the Partnership or any of its Subsidiaries on the
date hereof or (ii) the capital stock of any Restricted Subsidiary that owns no
Principal property that was owned by the Partnership or any of its Subsidiaries
on the date hereof, in each case owned by a Subsidiary of the Partnership (an
"Excluded Subsidiary") that (A) is not, and is not required to be, a Subsidiary
Guarantor and (B) has not granted any liens on any of its property securing
Indebtedness with recourse to the Partnership or any Subsidiary of the
Partnership other than such Excluded Subsidiary or any other Excluded
Subsidiary.
SECTION 5.2 Restriction on Sale-Leasebacks.
The Partnership will not, and will not permit any Subsidiary to, engage in
the sale or transfer by the Partnership or any of its Subsidiaries of any
Principal Property to a Person (other than the Partnership or a Subsidiary
Guarantor) and the taking back by the Partnership or its Subsidiary, as the case
may be, of a lease of such Principal Property (a "Sale-Leaseback Transaction"),
unless:
(1) such Sale-Leaseback Transaction occurs within one year from the
date of completion of the acquisition of the Principal Property subject thereto
or the date of the completion of construction, development or substantial repair
or improvement, or commencement of full operations on such Principal Property,
whichever is later;
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(2) the Sale-Leaseback Transaction involves a lease for a period,
including renewals, of not more than three years;
(3) the Partnership or such Subsidiary would be entitled to incur
Indebtedness secured by a lien on the Principal Property subject thereto in a
principal amount equal to or exceeding the Attributable Indebtedness from such
Sale-Leaseback Transaction without equally and ratably securing the notes; or
(4) the Partnership or such Subsidiary, within a one-year period
after such Sale-Leaseback Transaction, applies or causes to be applied an amount
not less than the Attributable Indebtedness from such Sale-Leaseback Transaction
to (a) the prepayment, repayment, redemption, reduction or retirement of any
Indebtedness of the Partnership or any of its Subsidiaries that is not
subordinated to the Notes or any Guarantee, or (b) the expenditure or
expenditures for Principal Property used or to be used in the ordinary course of
business of Partnership or its Subsidiaries.
Notwithstanding the foregoing, the Partnership may, and may permit any
Subsidiary to, effect any Sale-Leaseback Transaction that is not excepted by
clauses (1) through (4), inclusive, of the preceding paragraph provided that the
Attributable Indebtedness from such Sale-Leaseback Transaction, together with
the aggregate principal amount of outstanding Indebtedness (other than the
Notes) secured by liens other than Permitted Liens upon Principal Properties,
does not exceed 10% of Consolidated Net Tangible Assets.
ARTICLE VI
ADDITIONAL EVENT OF DEFAULT
SECTION 6.1 Additional Event of Default.
In addition to the Events of Default specified in Section 6.01 of the Base
Indenture, the following shall be an Event of Default with respect to the Notes:
any Indebtedness of the Partnership or any Subsidiary Guarantor is not paid
within any applicable grace period after final maturity or is accelerated by the
holders thereof because of a default and the total amount of such Indebtedness
unpaid or accelerated exceeds $25,000,000.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1 Ratification of Base Indenture.
The Base Indenture, as supplemented by this First Supplemental Indenture,
is in all respects ratified and confirmed, and this First Supplemental Indenture
shall be deemed part of the Base Indenture in the manner and to the extent
herein and therein provided.
SECTION 7.2 Trustee Not Responsible for Recitals.
The recitals contained herein and in the Notes, except with respect to the
Trustee's certificates of authentication, shall be taken as the statements of
the Partnership, and the Trustee
-14-
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this First Supplemental
Indenture or of the Notes.
SECTION 7.3 Table of Contents, Headings, etc.
The table of contents and headings of the Articles and Sections of this
First Supplemental Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof and shall in no way modify or
restrict any of the terms or provisions hereof.
SECTION 7.4 Counterpart Originals.
The parties may sign any number of copies of this First Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
SECTION 7.5 Governing Law.
THIS FIRST SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
[Signature Pages Follow]
-15-
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the day and year first above written.
ISSUER:
ENERGY TRANSFER PARTNERS, L.P.
By: U.S. Propane, L.P.
Its: General Partner
By: U.S. Propane, L.L.C.
Its: General Partner
By: /s/ Xxx X. Xxxxx
------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive
Officer
SUBSIDIARY GUARANTORS:
LA GRANGE ACQUISITION, L.P.
By: LA GP, LLC, its general partner
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
LG PL, LLC
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
ETC TEXAS PIPELINE, LTD.
ETC GAS COMPANY, LTD.
ETC OKLAHOMA PIPELINE, LTD.
ETC KATY PIPELINE, LTD.
ETC TEXAS PROCESSING, LTD.
By: LG PL, LLC, its general partner
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
Signature Page of First Supplemental Indenture
LGM, LLC
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
ETC MARKETING, LTD.
By: LGM, LLC, its general partner
By: /s/ Xxx X. Xxxxx
------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
ETC OASIS GP, LLC
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
OASIS PIPELINE, LP
ETC OASIS, L.P.
By: ETC OASIS GP, LLC, its general
partner
By: /s/ Xxx X. Xxxxx
------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
FIVE DAWACO, LLC
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
ET COMPANY I, LTD.
XXXXXXXX TRANSMISSION COMPANY, LTD.
WHISKEY BAY GATHERING COMPANY, LTD.
WHISKEY BAY GAS COMPANY, LTD.
By: FIVE DAWACO, LLC, its general
partner
By: /s/ Xxx X. Xxxxx
------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive
Officer
Signature Page of First Supplemental Indenture
TETC, LLC
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
TEXAS ENERGY TRANSFER COMPANY, LTD.
By: TETC, LLC, its general partner
By: /s/ Xxx X. Xxxxx
------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
OASIS PIPE LINE COMPANY
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
OASIS PIPE LINE FINANCE COMPANY
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
OASIS PARTNER COMPANY
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
OASIS PIPE LINE MANAGEMENT COMPANY
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
Signature Page of First Supplemental Indenture
OASIS PIPE LINE COMPANY TEXAS L.P.
By: OASIS PIPE LINE MANAGEMENT COMPANY,
its general partner
By: /s/ Xxx X. Xxxxx
------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
ENERGY TRANSFER FUEL GP, LLC
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
ENERGY TRANSFER FUEL, LP
By: ENERGY TRANSFER FUEL GP,
LLC, its general partner
By: /s/ Xxx X. Xxxxx
------------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
TRUSTEE:
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ R. Xxxxxxx Xxxxxx
-----------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Vice President
Signature Page of First Supplemental Indenture
EXHIBIT A
FORM OF NOTE
[FACE OF SECURITY]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC") (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX 00000) TO
THE PARTNERSHIP OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
[TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO HEREIN.]*
No. _____ Principal Amount
$___________, [which amount may be
increased or decreased by the Schedule
of Increases and Decreases in Global
Security attached hereto.]*
ENERGY TRANSFER PARTNERS, L.P.
5.95% SENIOR NOTES DUE 2015
CUSIP ___________
ENERGY TRANSFER PARTNERS, L.P., a Delaware limited partnership (the
"Partnership," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to [Cede & Co.]* or its
registered assigns, the principal sum of __________________ U.S. dollars
($__________), [or such greater or lesser principal sum as is shown on the
attached Schedule of Increases and Decreases in Global Security]*, on February
1, 2015 in such coin and currency of the United States of America as at the time
of payment shall be legal tender for the payment of public and private debts,
and to pay interest at an annual rate of 5.95% payable on February 1 and August
1 of each year, to the person in whose name the Security is registered at the
close of business on the record date for such interest, which shall be the
preceding January 15 and July 15 (each, a "Regular Record Date"), respectively,
A-1
payable commencing on August 1, 2005, with interest accruing from January 18,
2005, or the most recent date to which interest shall have been paid.
Reference is made to the further provisions of this Security set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
The statements in the legends set forth in this Security are an integral
part of the terms of this Security and by acceptance hereof the Holder of this
Security agrees to be subject to, and bound by, the terms and provisions set
forth in each such legend
This Security is issued in respect of a series of Debt Securities of an
initial aggregate of $750,000,000 in principal amount designated as the 5.95%
Senior Notes due 2015 of the Partnership and is governed by the Indenture dated
as of January 18, 2005 (the "Base Indenture"), duly executed and delivered by
the Partnership, as issuer, and the Subsidiary Guarantors named therein, as
Subsidiary Guarantors (the "Subsidiary Guarantors"), to Wachovia Bank, National
Association, as trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of January 18, 2005, duly executed by the
Partnership, the Subsidiary Guarantors and the Trustee (the "First Supplemental
Indenture", and together with the Base Indenture, the "Indenture"). The terms of
the Indenture are incorporated herein by reference. This Security shall in all
respects be entitled to the same benefits as definitive Debt Securities under
the Indenture.
If and to the extent any provision of the Indenture limits, qualifies or
conflicts with any other provision of the Indenture that is required to be
included in the Indenture or is deemed applicable to the Indenture by virtue of
the provisions of the Trust Indenture Act of 1939, as amended (the "TIA"), such
required provision shall control.
The Partnership hereby irrevocably undertakes to the Holder hereof to
exchange this Security in accordance with the terms of the Indenture without
charge.
This Security shall not be valid or become obligatory for any purpose
until the Trustee's Certificate of Authentication hereon shall have been
manually signed by the Trustee under the Indenture.
A-2
IN WITNESS WHEREOF, the Partnership has caused this instrument to be duly
executed by its sole General Partner.
Dated: January 18, 2005
ENERGY TRANSFER PARTNERS, L.P.
By: U.S. Propane, L.P.
Its: General Partner
By: U.S. Propane, L.L.C.
Its: General Partner
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Authorized Signatory
A-3
[REVERSE OF SECURITY]
ENERGY TRANSFER PARTNERS, L.P.
5.95% SENIOR NOTES DUE 2015
This Security is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness of the Partnership (the "Debt Securities") of
the series hereinafter specified, all issued or to be issued under and pursuant
to the Indenture, to which Indenture reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Partnership, the Subsidiary Guarantors and the
Holders of the Debt Securities. The Debt Securities may be issued in one or more
series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different
rates, may be subject to different sinking, purchase or analogous funds (if any)
and may otherwise vary as provided in the Indenture. This Security is one of a
series designated as the 5.95% Senior Notes due 2015 of the Partnership, in
initial aggregate principal amount of $750,000,000 (the "Securities").
1. Interest.
The Partnership promises to pay interest on the principal amount of this
Security at the rate of 5.95% per annum.
The Partnership will pay interest semi-annually on February 1 and August 1
of each year (each an "Interest Payment Date"), commencing August 1, 2005.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid on the Securities, from
January 18, 2005. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months. The Partnership shall pay interest
(including post-petition interest in any proceeding under any applicable
bankruptcy laws) on overdue installments of interest (without regard to any
applicable grace period) and on overdue principal and premium, if any, from time
to time on demand at the same rate per annum, in each case to the extent lawful.
2. Method of Payment.
The Partnership shall pay interest on the Securities (except Defaulted
Interest) to the persons who are the registered Holders at the close of business
on the Regular Record Date immediately preceding the Interest Payment Date. Any
such interest not so punctually paid or duly provided for ("Defaulted Interest")
may be paid to the persons who are registered Holders at the close of business
on a special record date for the payment of such Defaulted Interest, or in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may then be listed if such manner of payment
shall be deemed practicable by the Trustee, as more fully provided in the
Indenture. The Partnership shall pay principal, premium, if any, and interest in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for payment of public and private debts. Payments in
respect of a Global Security (including principal, premium, if any, and
interest) will be made by wire transfer of immediately available funds to the
accounts specified by the Depositary.
A-4
Payments in respect of Securities in definitive form (including principal,
premium, if any, and interest) will be made at the office or agency of the
Partnership maintained for such purpose within The City of New York, which
initially will be at the corporate trust office of the Trustee located at Xxx
Xxxx Xxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, or, at the option of the
Partnership, payment of interest may be made by check mailed to the Holders on
the relevant record date at their addresses set forth in the register of Holders
maintained by the Registrar or at the option of the Holder, payment of interest
on Securities in definitive form will be made by wire transfer of immediately
available funds to any account maintained in the United States, provided such
Holder has requested such method of payment and provided timely wire transfer
instructions to the Paying Agent. The Holder must surrender this Security to a
Paying Agent to collect payment of principal.
3. Paying Agent and Registrar.
Initially, Wachovia Bank, National Association will act as Paying Agent
and Registrar. The Partnership may change any Paying Agent or Registrar at any
time upon notice to the Trustee and the Holders. The Partnership may act as
Paying Agent.
4. Indenture.
This Security is one of a duly authorized issue of Debt Securities of the
Partnership issued and to be issued in one or more series under the Indenture.
Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. The terms of the Securities include those stated in
the Base Indenture, those made part of the Indenture by reference to the TIA, as
in effect on the date of the Base Indenture, and those terms stated in the First
Supplemental Indenture. The Securities are subject to all such terms, and
Holders of Securities are referred to the Base Indenture, the First Supplemental
Indenture and the TIA for a statement of them. The Securities of this series are
general unsecured obligations of the Partnership limited to an initial aggregate
principal amount of $750,000,000; provided, however, that the authorized
aggregate principal amount of such series may be increased from time to time as
provided in the First Supplemental Indenture.
5. Redemption.
The Securities are redeemable, at the option of the Partnership, at any
time in whole, or from time to time in part, at a redemption price equal to the
greater of: (i) 100% of the principal amount of the Securities to be redeemed;
or (ii) the sum of the present values of the remaining scheduled payments of
principal and interest (at the rate in effect on the date of calculation of the
redemption price) on the Securities to be redeemed that would be due after the
related Redemption Date but for such redemption (exclusive of interest accrued
to the Redemption Date) discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the applicable
Treasury Yield plus 30 basis points; plus, in either case, accrued interest to
the Redemption Date.
The actual redemption price, calculated as provided above, shall be
calculated and certified to the Trustee and the Partnership by the Independent
Investment Banker.
A-5
Except as set forth above, the Securities will not be redeemable prior to
their Stated Maturity and will not be entitled to the benefit of any sinking
fund.
6. Denominations; Transfer; Exchange.
The Securities are to be issued in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000 in excess thereof. A
Holder may register the transfer of, or exchange, Securities in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture.
7. Person Deemed Owners.
The registered Holder of a Security may be treated as the owner of it for
all purposes.
8. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture may be amended or
supplemented, and any existing Event of Default or compliance with any provision
may be waived, with the consent of the Holders of a majority in principal amount
of the outstanding Debt Securities of each series affected. Without consent of
any Holder of a Security, the parties thereto may amend or supplement the
Indenture to, among other things, cure any ambiguity or omission, to correct any
defect or inconsistency, or to make any other change that does not adversely
affect the rights of any Holder of a Security. Any such consent or waiver by the
Holder of this Security (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Security and any Securities which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Security or such other Securities.
9. Defaults and Remedies.
Certain events of bankruptcy or insolvency are Events of Default that will
result in the principal amount of the Securities, together with premium, if any,
and accrued and unpaid interest thereon, becoming due and payable immediately
upon the occurrence of such Events of Default. If any other Event of Default
with respect to the Securities occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in aggregate principal amount of
the Securities then outstanding may declare the principal amount of all the
Securities, together with premium, if any, and accrued and unpaid interest
thereon, to be due and payable immediately in the manner and with the effect
provided in the Indenture. Notwithstanding the preceding sentence, however, if
at any time after such a declaration of acceleration has been made, the Holders
of a majority in principal amount of the outstanding Securities, by written
notice to the Trustee, may rescind such declaration and annul its consequences
if the rescission would not conflict with any judgment or decree of a court
already rendered and if all Events of Default with respect to the Securities,
other than the nonpayment of the principal, premium, if any, or interest which
has become due solely by such declaration acceleration, shall have been cured or
shall have been waived. No such rescission shall affect any subsequent default
or shall impair any right consequent thereon. Holders of Securities may not
enforce the Indenture or the Securities except as provided in the Indenture. The
Trustee may require indemnity or security
A-6
satisfactory to it before it enforces the Indenture or the Securities. Subject
to certain limitations, Holders of a majority in aggregate principal amount of
the Securities then outstanding may direct the Trustee in its exercise of any
trust or power.
10. Registration Rights.
The Holder of this Security may be entitled to the benefits of the
Registration Rights Agreement (the "Registration Rights Agreement") dated as of
January 18, 2005 by and among the Partnership, the Subsidiary Guarantors and the
Initial Purchasers named therein. In certain events, the Partnership shall be
required to pay to each affected Holder additional interest on the Securities,
on the terms and subject to the conditions of the Registration Rights Agreement,
and all references to "interest" herein include any such additional interest
unless the context otherwise requires.
11. Trustee Dealings with Partnership.
The Trustee under the Indenture, in its individual or any other capacity,
may make loans to, accept deposits from, and perform services for the
Partnership or its Affiliates, and may otherwise deal with the Partnership or
its Affiliates as if it were not the Trustee.
12. Authentication.
This Security shall not be valid until the Trustee signs the certificate
of authentication on the other side of this Security.
13. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Security
or an assignee, such as: TEN COM (tenant in common), TEN ENT (tenants by the
entireties), JT TEN (joint tenants with right of survivorship and not as tenants
in common), CUST (Custodian), and U/G/M/A (Uniform Gifts to Minors Act).
14. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Partnership has caused CUSIP numbers to
be printed on the Securities as a convenience to the Holders of the Securities.
No representation is made as to the accuracy of such number as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
15. Absolute Obligation.
No reference herein to the Indenture and no provision of this Security or
the Indenture shall alter or impair the obligation of the Partnership, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Security in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
A-7
16. No Recourse.
No director, officer, employee, limited partner or shareholder, as such,
of the Partnership or the General Partner shall have any personal liability in
respect of the obligations of the Partnership and the Subsidiary Guarantors
under the Securities, the Indenture or any Guarantee by reason of his, her or
its status. Each Holder by accepting the Securities waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Securities.
17. Governing Law.
This Security shall be construed in accordance with and governed by the
laws of the State of New York.
18. Guarantee.
The Securities are fully and unconditionally guaranteed on an unsecured,
unsubordinated basis by the Subsidiary Guarantors as set forth in Article X of
the Indenture, as noted in the Notation of Guarantee to this Security, and under
certain circumstances set forth in the Base Indenture one or more Subsidiaries
of the Partnership may be required to join in such guarantee.
A-8
NOTATION OF GUARANTEE
Each of the Subsidiary Guarantors (which term includes any successor
Person under the Indenture), has fully, unconditionally and absolutely
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture, the due and punctual payment of the principal of,
and premium, if any, and interest on the Securities and all other amounts due
and payable under the Indenture and the Securities by the Partnership.
The obligations of the Subsidiary Guarantors to the Holders of Securities
and to the Trustee pursuant to the Guarantee and the Indenture are expressly set
forth in Article X of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Guarantee.
SUBSIDIARY GUARANTORS:
LA GRANGE ACQUISITION, L.P.
By: LA GP, LLC, its general partner
By:
-------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
LG PL, LLC
By:
-------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
ETC TEXAS PIPELINE, LTD.
ETC GAS COMPANY, LTD.
ETC OKLAHOMA PIPELINE, LTD.
ETC KATY PIPELINE, LTD.
ETC TEXAS PROCESSING, LTD.
By: LG PL, LLC, its general partner
By:
-------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
A-9
LGM, LLC
By:
-------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
ETC MARKETING, LTD.
By: LGM, LLC, its general partner
By:
-------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
ETC OASIS GP, LLC
By:
-------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
OASIS PIPELINE, LP
ETC OASIS, L.P.
By: ETC OASIS GP, LLC, its general
partner
By:
-------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
FIVE DAWACO, LLC
By:
-------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
ET COMPANY I, LTD.
XXXXXXXX TRANSMISSION COMPANY, LTD.
WHISKEY BAY GATHERING COMPANY, LTD.
WHISKEY BAY GAS COMPANY, LTD.
By: FIVE DAWACO, LLC, its general partner
By:
-------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
A-10
TETC, LLC
By:
-------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
TEXAS ENERGY TRANSFER COMPANY, LTD.
By: TETC, LLC, its general partner
By:
-------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
OASIS PIPE LINE COMPANY
By:
-------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
OASIS PIPE LINE FINANCE COMPANY
By:
-------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
OASIS PARTNER COMPANY
By:
-------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
OASIS PIPE LINE MANAGEMENT COMPANY
By:
-------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
A-11
OASIS PIPE LINE COMPANY TEXAS L.P.
By: OASIS PIPE LINE MANAGEMENT COMPANY,
its general partner
By:
-------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
ENERGY TRANSFER FUEL GP, LLC
By:
-------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
ENERGY TRANSFER FUEL, LP
By: ENERGY TRANSFER FUEL GP,
LLC, its general partner
By:
-------------------------
Name: Xxx X. Xxxxx
Title: Co-Chief Executive Officer
A-12
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT -
------------------
(Cust.)
TEN ENT - as tenants by Custodian for:
------------------------
entireties (Minor)
JT TEN - as joint tenants Under Uniform Gifts to Minors Act
with right of survivorship and of
-----------------------------------
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
-----------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------
Please print or type name and address including postal zip code of assignee:
--------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing to transfer said Security on the books of the Partnership, with
full power of substitution in the premises.
Dated Registered Holder
-----------------------
A-13
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY*
The following increases or decreases in this Global Security have been made:
PRINCIPAL
AMOUNT OF AMOUNT
AMOUNT OF INCREASE IN OF THIS GLOBAL SIGNATURE OF
DECREASE IN PRINCIPAL SECURITY AUTHORIZED
PRINCIPAL AMOUNT FOLLOWING OFFICER
AMOUNT OF THIS OF THIS SUCH DECREASE OF TRUSTEE OR
DATE OF EXCHANGE GLOBAL SECURITY GLOBAL SECURITY (OR INCREASE) DEPOSITARY
---------------- --------------- --------------- ------------- ----------
------------
* To be included in a Book-Entry Note.
A-14
EXHIBIT B
FORM OF CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF NOTES
Re: 5.95% Senior Notes due 2015 of Energy Transfer Partners, L.P.
This Certificate relates to $_____ principal amount of Notes held in**
______ book-entry or **______ definitive form by _____________________ (the
"Transferor").
The Transferor has requested the Trustee by written order to exchange or
register the transfer of a Note or Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above-captioned Notes and that the transfer of this
Note does not require registration under the Securities Act (as defined below)
because:**
[ ] Such Note is being acquired for the Transferor's own account without
transfer.
[ ] Such Note is being transferred (i) to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act")), in accordance with Rule 144A under the Securities Act, that
is purchasing for its own account or for the account of another qualified
institutional buyer, in each case to whom notice is given that the transfer is
being made in reliance on Rule 144A, or (ii) pursuant to an exemption from
registration in accordance with Rule 904 of Regulation S under the Securities
Act (and in the case of clause (ii), based upon an opinion of counsel if the
Partnership or the Trustee so requests, together with a certification in
substantially the form of Exhibit C to the Indenture).
[ ] Such Note is being transferred (i) pursuant to an exemption from
registration in accordance with Rule 144 under the Securities Act (and based
upon an opinion of counsel if the Partnership or the Trustee so requests) or
(ii) pursuant to an effective registration statement under the Securities Act.
[ ] Such Note is being transferred in reliance on and in compliance with another
exemption from the registration requirements of the Securities Act (and based
upon an opinion of counsel if the Partnership or the Trustee so requests).
[INSERT NAME OF TRANSFEROR]
By:
---------------------------------
Name:
Title:
Address:
Date:
----------------------
** Fill in blank or check appropriate box, as applicable
B-1
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
-----------, -----
Wachovia Bank, National Association, as Registrar
-------------------------
-------------------------
Attention:
--------------------
Ladies and Gentlemen:
In connection with our proposed sale of certain 5.95% Senior Notes due
2015 (the "Notes") of Energy Transfer Partners L.P. (the "Partnership"), we
represent that:
(a) the offer of the Notes was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States or (ii)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither we nor any person acting on our behalf
knows that the transaction has been pre-arranged with a buyer in the United
States;
(c) no directed selling efforts have been made by us in the United States
in contravention of the requirements of Rule 904(a) of Regulation S; and
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
In addition, if the sale is made during a distribution compliance period and the
provisions of Rule 904(b)(1) of Regulation S are applicable thereto, we confirm
that such sale has been made in accordance with the applicable provisions of
Rule 904(b)(1).
C-1
You and the Partnership are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S under the U.S. Securities Act of 1933.
Very truly yours,
--------------------------------------
[Name]
By:
Name:
Title:
Address:
C-2
