EXHIBIT 4.3
EXECUTION COPY
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BUCKEYE PARTNERS, L.P.
ISSUER
AND
SUNTRUST BANK
TRUSTEE
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 19, 2003
TO
INDENTURE
DATED AS OF JULY 10, 2003
6 3/4% NOTES DUE 2033
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 Relation to Indenture; Definitions...................................................................... 1
SECTION 1.01. Relation to Indenture............................................................................ 1
SECTION 1.02. Definitions...................................................................................... 1
SECTION 1.03. General References............................................................................... 2
ARTICLE 2 The Series of Securities................................................................................ 2
SECTION 2.01. The Form and Title of the Securities............................................................. 2
SECTION 2.02. Amount........................................................................................... 2
SECTION 2.03. Stated Maturity.................................................................................. 2
SECTION 2.04. Interest and Interest Rates...................................................................... 2
SECTION 2.05. Place of Payment................................................................................. 3
SECTION 2.06. Optional Redemption.............................................................................. 3
SECTION 2.07. Defeasance and Discharge; Covenant Defeasance.................................................... 3
SECTION 2.08. Global Securities; Restrictions on Transfer and Exchange......................................... 3
SECTION 2.09. Transfer and Exchange............................................................................ 3
SECTION 2.10. Legends.......................................................................................... 4
SECTION 2.11. Registration Rights Agreement.................................................................... 6
ARTICLE 3 Events of Default....................................................................................... 6
SECTION 3.01. Additional Event of Default...................................................................... 6
ARTICLE 4 Covenants............................................................................................... 6
SECTION 4.01. Additional Covenant.............................................................................. 6
ARTICLE 5 Miscellaneous........................................................................................... 7
SECTION 5.01. Certain Trustee Matters.......................................................................... 7
SECTION 5.02. Continued Effect................................................................................. 7
SECTION 5.03. Governing Law.................................................................................... 7
SECTION 5.04. Counterparts..................................................................................... 7
EXHIBITS
Exhibit A: Form of Note
Exhibit B: Form of Certificate to be Delivered upon Exchange or Registration of
Transfer of Notes
Exhibit C: Form of Certificate to be Delivered in Connection with Transfers
Pursuant to Regulation S
Second Supplemental Indenture
SECOND SUPPLEMENTAL INDENTURE, dated as of August 19, 2003 (this
"SECOND SUPPLEMENTAL INDENTURE"), between BUCKEYE PARTNERS, L.P., a Delaware
limited partnership (the "PARTNERSHIP"), having its principal office at 0 Xxxxxx
Xxxxxxxxx Xxxxxx, Xxxxx 000, 000 Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxx 00000,
and SUNTRUST BANK, a Georgia banking corporation ("SUNTRUST"), as trustee under
the Indenture referred to below (in such capacity, the "TRUSTEE").
RECITALS OF THE PARTNERSHIP
WHEREAS, the Partnership and the Trustee have heretofore entered into
an Indenture, dated as of July 10, 2003 (the "ORIGINAL INDENTURE"), as amended
and supplemented by the First Supplemental Indenture thereto dated as of July
10, 2003 (the "FIRST SUPPLEMENTAL INDENTURE") (the Original Indenture, as
supplemented from time to time, including without limitation pursuant to the
First Supplemental Indenture and pursuant to this Second Supplemental Indenture
being referred to herein as the "INDENTURE"); and
WHEREAS, under the Original Indenture, a new series of Securities may
at any time be established by the Board of Directors of Buckeye Pipe Line
Company, a Delaware corporation and the Partnership's general partner (the
"GENERAL PARTNER"), in accordance with the provisions of the Original Indenture,
and the terms of such series may be established by a supplemental indenture
executed by the General Partner on behalf of the Partnership and by the Trustee;
and
WHEREAS, the Partnership proposes to create under the Indenture a new
series of Securities; and
WHEREAS, all acts and things necessary to make the Notes (as herein
defined), when executed by the General Partner on behalf of the Partnership and
authenticated and delivered by the Trustee as provided in the Original Indenture
and this Second Supplemental Indenture, the valid and binding obligations of the
Partnership and to make this Second Supplemental Indenture a valid and binding
agreement in accordance with the Original Indenture have been done or performed;
and
WHEREAS, the Partnership has entered into a Registration Rights
Agreement dated as of August 19, 2003 (the "REGISTRATION RIGHTS AGREEMENT")
relating to the Notes among the Partnership and the Initial Purchasers named
therein;
NOW, THEREFORE, in consideration of the premises, agreements and
obligations set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree, for the equal and proportionate benefit of all Holders of the
Notes, as follows:
ARTICLE 1
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.01. RELATION TO INDENTURE.
With respect to the Notes, this Second Supplemental Indenture
constitutes an integral part of the Indenture.
SECTION 1.02. DEFINITIONS.
For all purposes of this Second Supplemental Indenture, capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned thereto in the Original Indenture.
Second Supplemental Indenture
SECTION 1.03. GENERAL REFERENCES.
All references in this Second Supplemental Indenture to Articles and
Sections, unless otherwise specified, refer to the corresponding Articles and
Sections of this Second Supplemental Indenture; and the term "herein", "hereof",
"hereunder" and any other word of similar import refers to this Second
Supplemental Indenture.
ARTICLE 2
THE SERIES OF SECURITIES
SECTION 2.01. THE FORM AND TITLE OF THE SECURITIES.
There is hereby established a new series of Securities to be issued
under the Indenture and to be designated as the Partnership's 6 3/4% Notes due
2033 (the "NOTES"). The Notes shall be substantially in the form attached as
Exhibit A hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by the
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as the Partnership may deem
appropriate or as may be required or appropriate to comply with any laws or with
any rules made pursuant thereto or with the rules of any securities exchange or
automated quotation system on which the Notes may be listed or traded, or to
conform to general usage, or as may, consistently with the Indenture, be
determined by the officers executing such Notes, as evidenced by their execution
thereof.
The Notes shall be executed, authenticated and delivered in accordance
with the provisions of, and shall in all respects be subject to, the terms,
conditions and covenants of the Original Indenture as supplemented by this
Second Supplemental Indenture (including the form of Note set forth as Exhibit A
hereto (the terms of which are incorporated in and made a part of this Second
Supplemental Indenture for all intents and purposes)).
SECTION 2.02. AMOUNT.
The aggregate principal amount of the Notes which may be authenticated
and delivered pursuant hereto is unlimited. The Trustee shall initially
authenticate and deliver Notes for original issue in an initial aggregate
principal amount of up to $150,000,000 upon delivery to the Trustee of a
Partnership Order for the authentication and delivery of such Notes. The
aggregate principal amount of the Notes to be issued hereunder may be increased
at any time hereafter and the series may be reopened for issuances of additional
Notes, upon Partnership Order without the consent of any Holder. The Notes
issued on the date hereof and any such additional Notes that may be issued
hereafter shall be part of the same series of Securities for all purposes under
the Indenture.
SECTION 2.03. STATED MATURITY.
The Notes may be issued on any Business Day on or after August 19,
2003, and the Stated Maturity of the Notes shall be August 15, 2033.
SECTION 2.04. INTEREST AND INTEREST RATES.
The rate or rates at which the Notes shall bear interest, the date or
dates from which such interest shall accrue, the Interest Payment Dates on which
any such interest shall be payable and the Regular Record Date for any interest
payable on any Interest Payment Date, in each case, shall be as set forth in the
form of Note set forth as Exhibit A hereto.
Second Supplemental Indenture
2
SECTION 2.05. PLACE OF PAYMENT.
As long as any Notes are outstanding, the Partnership shall maintain an
office or agency in the Borough of Manhattan, The City of New York, where Notes
may be presented for payment.
SECTION 2.06. OPTIONAL REDEMPTION.
At its option, the Partnership may redeem the Notes, in whole or in
part, in principal amounts of $1,000 or any integral multiple thereof, at any
time or from time to time, at the applicable redemption price determined as set
forth in the form of Note attached hereto as Exhibit A, in accordance with the
terms set forth in the Notes and in accordance with Article XI of the Original
Indenture.
SECTION 2.07. DEFEASANCE AND DISCHARGE; COVENANT DEFEASANCE.
Article XIII of the Original Indenture shall apply to the Notes.
SECTION 2.08. GLOBAL SECURITIES; RESTRICTIONS ON TRANSFER AND EXCHANGE.
The Notes shall initially be issued in the form of one or more Global
Securities. Such Global Securities (i) shall bear the legends applicable to
Global Securities set forth in Sections 2.02 and 2.04 of the Original Indenture,
(ii) may be exchanged in whole or in part for Securities in definitive form upon
the terms and subject to the conditions provided in Section 3.05 of the Original
Indenture and in this Second Supplemental Indenture and (iii) shall otherwise be
subject to the applicable provisions of the Indenture.
(1) Rule 144A Global Notes. The Notes offered and sold to
"qualified institutional buyers" ("QIBs" or individually, a "QIB")
(which term shall have the meaning assigned to it in Rule 144A under
the Securities Act of 1933, as amended (the "SECURITIES ACT")) in the
United States of America in reliance on Rule 144A will initially be
issued as permanent Global Securities (the "RULE 144A GLOBAL NOTES"),
without interest coupons, substantially in the form of Exhibit A
hereto. The Rule 144A Global Notes will be duly executed by the
Partnership, authenticated by the Trustee, deposited with the Trustee
(as custodian for The Depository Trust Company ("DTC"), which shall act
as Depositary with respect to the Notes constituting Global Securities)
and registered in the name of DTC or a nominee thereof.
(2) Regulation S Global Notes. Notes offered and sold in
Offshore Transactions to Non-U.S. Persons (each such term to have the
meaning assigned to it in Regulation S under the Securities Act
("REGULATION S")) in reliance on Regulation S will initially be issued
as permanent Global Securities (the "REGULATION S GLOBAL NOTES"),
without interest coupons, substantially in the form of Exhibit A
hereto. The Regulation S Global Notes will be duly executed by the
Partnership, authenticated by the Trustee, deposited with the Trustee
(as custodian for DTC) and registered in the name of DTC or a nominee
thereof.
SECTION 2.09. TRANSFER AND EXCHANGE.
(1) Transfer and Exchange of Notes in Certificated Form.
In addition to the requirements set forth in Section 3.05 of the
Original Indenture, the Notes in certificated form that are Registrable
Securities under the Registration Rights Agreement (the "TRANSFER
RESTRICTED SECURITIES") presented or surrendered for registration of
transfer or exchange pursuant to Section 3.05 of the Original Indenture
shall be accompanied by the following additional information and
documents, as applicable, upon which the Security Registrar may
conclusively rely:
Second Supplemental Indenture
3
(a) if such Transfer Restricted Securities are
being delivered to the Security 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
(b) if such Transfer Restricted Securities are
being transferred (1) to a QIB 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
(c) 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
(d) 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 Exhibit B hereto) and an
opinion of counsel to that effect if the Partnership or the
Trustee so requests.
(2) Transfer and Exchange of Global Notes. The transfer
and exchange of the Global Notes (as defined below) or beneficial
interests therein shall be effected through the Depositary, upon the
terms and subject to the conditions provided in Section 3.05 of the
Original Indenture and Article 2 of this Second 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.
SECTION 2.10. LEGENDS.
(1) Excepted as permitted by the following paragraphs (2)
and (3) immediately below, each certificate evidencing the Rule 144A
Global Notes or Regulation S Global Notes (each a "GLOBAL NOTE") or any
other Notes in certificated form (and all Notes issued in exchange
therefor or substitution thereof other than the Exchange Notes (as
defined below)) shall bear a legend in substantially the following
form:
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE ""SECURITIES ACT"), AND HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OR THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE
HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR
ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
Second Supplemental Indenture
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THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE
ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 904 UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
(2) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 under the Securities Act or an
effective registration statement under the Securities Act, which
effectiveness shall be certified by the Partnership to the Trustee and
Security Registrar upon which each may conclusively rely:
(a) in the case of any Transfer Restricted
Security in definitive form, the Security Registrar shall
permit the Holder thereof to exchange such Transfer Restricted
Security for a Note in definitive form that does not bear the
legend set forth in (1) above and rescind any restriction on
the transfer of such Transfer Restricted Security; and
(b) in the case of any Transfer Restricted
Security represented by a Global Note, such Transfer
Restricted Security shall not be required to bear the
legend(s) set forth in (1) above if all other interests in
such Global Note have been or are 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 Transfer Restricted Security shall
continue to be subject to the provisions of Section 3.05 of
the Original Indenture and this Section 2.10 of this Second
Supplemental Indenture.
(3) Notwithstanding the foregoing, upon consummation of
the Exchange Offer (as defined in the Registration Rights Agreement),
the Partnership shall issue and, upon receipt of a Partnership Order in
accordance with Section 3.03 of the Original Indenture, the Trustee
shall authenticate Notes ("EXCHANGE NOTES") in exchange for Notes
accepted for exchange in the Exchange Offer, which Exchange Notes shall
not bear the legend set forth in (1) above, and the Security Registrar
shall rescind any restriction on the transfer of the Exchange Notes, in
each case unless the Holder of Notes being transferred in the Exchange
Offer 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 (C) a Person who is
an "affiliate" (as defined in Rule 144 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 receipt of a certificate from the
Partnership to such effect, the Trustee shall assume that there are no
such Holders.
Second Supplemental Indenture
5
SECTION 2.11. REGISTRATION RIGHTS AGREEMENT.
Holders of the Notes shall have the benefit of the Partnership's
registration obligations with respect to the Notes, and such Holders shall also
have certain obligations to indemnify the Partnership under certain
circumstances, all as more fully set forth in the Registration Rights Agreement.
ARTICLE 3
EVENTS OF DEFAULT
SECTION 3.01. ADDITIONAL EVENT OF DEFAULT
With respect to the Notes, the occurrence of any of the following
events shall, in addition to the other events or circumstances described as
Events of Default in Section 5.01 of the Original Indenture, constitute an Event
of Default: default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness of the Partnership or any of its Subsidiaries (or the payment of
which is guaranteed by the Partnership or any of its Subsidiaries), whether such
Indebtedness or guarantee now exists or is created after the date of issuance of
any Notes, if (a) that default (x) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness prior to the expiration of any
grace period provided in such Indebtedness (a "PAYMENT DEFAULT"), or (y) results
in the acceleration of the maturity of such Indebtedness to a date prior to its
originally stated maturity, and, (b) in each case described in clauses (x) or
(y) above, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$50,000,000 or more.
ARTICLE 4
COVENANTS
SECTION 4.01. ADDITIONAL COVENANT
The covenant contained in this Section 4.01 shall apply to the Notes
only and not to any other series of Securities issued under the Indenture, and
is being included solely for the benefit of the Notes and the Holders thereof.
This covenant shall be effective only for so long as there remain Outstanding
any Notes.
SEC Reports; Financial Statements.
(1) Whether or not the Partnership is then subject to
Section 13 or 15(d) of the Exchange Act, from and after the Issue Date
of the Notes, the Partnership shall electronically file with the
Commission, so long as the Notes are Outstanding, the annual, quarterly
and other periodic reports that the Partnership is required to file (or
would otherwise be required to file) with the Commission pursuant to
Sections 13 and 15(d) of the Exchange Act, and such documents shall be
filed with the Commission on or prior to the respective dates (the
"Required Filing Dates") by which the Partnership is required to file
(or would otherwise be required to file) such documents, unless, in
each case, such filings are not then permitted by the Commission.
(2) If such filings are not then permitted by the
Commission, or such filings are not generally available on the Internet
free of charge, from and after the Issue Date of the Notes, the
Partnership shall provide the Trustee with, and the Trustee will mail
to any Holder of Notes requesting in writing to the Trustee copies of,
such annual, quarterly and other periodic reports specified in Sections
13 and 15(d) of the Exchange Act within 15 days after its Required
Filing Date.
Second Supplemental Indenture
6
(3) In addition, the Partnership shall furnish to the
Holders of Notes and to prospective investors, upon the requests of
Holders of Notes, any information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act of 1933, as amended (the
"Securities Act"), so long as the Notes are not freely transferable
under the Securities Act.
(4) The Partnership shall provide the Trustee with a
sufficient number of copies of all reports and other documents and
information that the Trustee may be required to deliver to Holders of
Notes under clause (2) of this Section 10.09.
(5) Delivery of such reports, information and documents
to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information
contained therein, including the Partnership's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates).
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. CERTAIN TRUSTEE MATTERS.
The recitals contained herein shall be taken as the statements of the
Partnership, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency
of this Second Supplemental Indenture or the Notes or the proper authorization
or the due execution hereof or thereof by the Partnership.
SECTION 5.02. CONTINUED EFFECT.
Except as expressly supplemented and amended by this Second
Supplemental Indenture, the Original Indenture (as supplemented and amended by
the First Supplemental Indenture) shall continue in full force and effect in
accordance with the provisions thereof, and the Original Indenture (as
supplemented and amended by the First Supplemental Indenture and by this Second
Supplemental Indenture) is in all respects hereby ratified and confirmed. This
Second Supplemental Indenture and all its provisions shall be deemed a part of
the Original Indenture in the manner and to the extent herein and therein
provided.
SECTION 5.03. GOVERNING LAW.
This Second Supplemental Indenture and the Notes shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 5.04. COUNTERPARTS.
This instrument may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Second Supplemental Indenture
7
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed and delivered, all as of the day and
year first above written.
BUCKEYE PARTNERS, L.P.
By: BUCKEYE PIPE LINE COMPANY,
Its General Partner
By: XXXXXXX X. XXXXXX
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President - Administration,
General Counsel and Secretary
SUNTRUST BANK,
as Trustee
By: XXXX XXXXXXX
----------------------------------------------
Name: Xxxx Xxxxxxx
Title: Authorized Officer
EXHIBIT A
[FORM OF FACE OF NOTE]
[IF A GLOBAL SECURITY, INSERT--THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO,
OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON
OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE
REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR
IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT
TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]
[IF A GLOBAL SECURITY, INSERT--UNLESS THIS SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION, TO THE PARTNERSHIP OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
[IF A TRANSFER RESTRICTED SECURITY, INSERT--THIS NOTE (OR ITS PREDECESSOR) WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE ""SECURITIES ACT"), AND HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY,
BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR
ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER
OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/
OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED
UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.]
BUCKEYE PARTNERS, L.P.
6 3/4% NOTE DUE 2033
No. _________ U.S.$_____________
CUSIP No. ___________
BUCKEYE PARTNERS, L.P., a Delaware limited partnership (herein called
the "Partnership", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to
A-1
pay to ____________________, or registered assigns, the principal sum of
_____________________________ United States Dollars on August 15, 2033, and to
pay interest thereon from August 19, 2003, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on February 15 and August 15 in each year, commencing on February 15, 2004, at
the rate of 6 3/4% per annum, until the principal hereof is paid or made
available for payment and at the rate of 6 3/4% per annum on any overdue
principal and premium and on any overdue installment of interest. The amount of
interest payable for any period shall be computed on the basis of twelve 30-day
months and a 360-day year. The amount of interest payable for any partial period
shall be computed on the basis of a 360-day year of twelve 30-day months and the
days elapsed in any partial month. In the event that any date on which interest
is payable on this Security is not a Business Day, then a payment of the
interest payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay) with the same force and effect as if made on the date the payment was
originally payable. A "Business Day" shall mean, when used with respect to any
Place of Payment, each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or obligated by law, executive order or regulation to close. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the "Regular Record Date" for such interest, which shall be the
February 1 or August 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice of which shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange or automated quotation system on which
the Securities of this series may be listed or traded, and upon such notice as
may be required by such exchange or automated quotation system, all as more
fully provided in such Indenture.
[If a Global Security, insert--Payment of the principal of (and
premium, if any) and any such interest on this Security will be made by transfer
of immediately available funds to a bank account in the United States of America
designated by the Holder in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.]
[If a Definitive Security, insert--Payment of the principal of (and
premium, if any) and any such interest on this Security will be made at the
office or agency of the Partnership maintained for that purpose in the Borough
of Manhattan, the City and State of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts or subject to any laws or regulations applicable
thereto and to the right of the Partnership (as provided in the Indenture) to
rescind the designation of any such Paying Agent, at the offices of
_________________ in the Borough of Manhattan, The City and State of New York,
and at such other offices or agencies as the Partnership may designate, by
United States Dollar check drawn on, or transfer to a United States Dollar
account maintained by the payee with, a bank in The City of New York (so long as
the applicable Paying Agent has received proper transfer instructions in writing
at least 10 days prior to the payment date); provided, however, that payment of
interest may be made at the option of the Partnership by United States Dollar
check mailed to the addresses of the Persons entitled thereto as such addresses
shall appear in the Security Register or by transfer to a United States Dollar
account maintained by the payee with a bank in The City of New York (so long as
the applicable Paying Agent has received proper transfer instructions in writing
by the Record Date prior to the applicable Interest Payment Date).]
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.
The Partnership hereby irrevocably undertakes to the Holder hereof to
exchange this Security in accordance with the terms of the Indenture without
charge.
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.
A-2
IN WITNESS WHEREOF, the Partnership has caused this instrument to be
duly executed.
Dated: ______________, ____
BUCKEYE PARTNERS, L.P.
By: BUCKEYE PIPE LINE COMPANY,
its General Partner
By: ___________________________
Name:
Title:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
SUNTRUST BANK,
as Trustee
By: ____________________________________________
Authorized Signatory
A-3
[REVERSE OF NOTE]
BUCKEYE PARTNERS, L.P.
6 3/4% NOTE DUE 2033
This Security is one of a duly authorized issue of securities of the
Partnership (the "Securities"), issued and to be issued in one or more series
under an Indenture dated as of July 10, 2003, as amended and supplemented by the
First Supplemental Indenture thereto dated as of July 10, 2003 and as further
amended and supplemented by the Second Supplemental Indenture thereto dated as
of August 19, 2003 (such Indenture, as so amended and supplemented being
referred to herein as the "Indenture"), between the Partnership and SunTrust
Bank, a Georgia banking corporation, as Trustee (the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Partnership, the 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.
This Security is redeemable, in whole or in part, at the Partnership's
option at any time prior to maturity at a redemption price equal to the greater
of (a) 100% of the principal amount of this Security, and (b) as determined by
the Quotation Agent (as defined below), the sum of the present values of the
remaining scheduled payments of principal and interest (not including any
portion of those payments of interest accrued as of the date of redemption)
discounted to the date of redemption on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Adjusted Treasury Rate (as
defined below) plus 20 basis points, plus, in each case, accrued and unpaid
interest to the date of redemption.
For purposes of determining any redemption price, the following
definitions shall apply:
"Adjusted Treasury Rate" means, with respect to any date of redemption,
the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for the date of redemption.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the remaining
term of this Security that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of this Security.
"Comparable Treasury Price" means, with respect to any date of
redemption, (a) the average of the Reference Treasury Dealer Quotations for the
date of redemption, after excluding the highest and lowest Reference Treasury
Dealer Quotations, or (b) if the Trustee obtains fewer than three Reference
Treasury Dealer Quotations, the average of all such Reference Treasury Dealer
Quotations.
"Quotation Agent" means X.X. Xxxxxx Securities Inc. or another
Reference Treasury Dealer appointed by the Partnership.
"Reference Treasury Dealer" means (a) each of X.X. Xxxxxx Securities
Inc. and its respective successors; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government securities dealer in New
York City (a "Primary Treasury Dealer"), the Partnership shall substitute
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 date of redemption, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third business day preceding that date of redemption.
Unless the Partnership defaults in payment of the redemption price, on
and after the date of redemption, interest will cease to accrue on this Security
or the portions hereof called for redemption.
A-4
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
The Indenture contains provisions for defeasance at any time of (1) the
entire indebtedness of this Security or (2) 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 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.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Partnership and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Partnership and the Trustee with
the consent of not less than the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series to be affected (voting as one
class). The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Outstanding Securities of all
affected series (voting as one class), on behalf of the Holders of all
Securities of such series, to waive compliance by the Partnership with certain
provisions of the Indenture. The Indenture permits, with certain exceptions as
therein provided, the Holders of a majority in principal amount of Securities of
any series then Outstanding to waive past defaults under the Indenture with
respect to such series and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and all
holders of Securities of which this Security is a Predecessor Security, whether
or not notation of such consent or waiver is made upon this or any other
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 a majority 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 indemnity satisfactory to the
Trustee and the Trustee shall not have received from the Holders of a majority
in principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Partnership,
which is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place(s) and rate, and in the coin or
currency, herein prescribed.
[If a Global Security, insert--This Global Security or portion hereof
may not be exchanged for Definitive Securities of this series except in the
limited circumstances provided in the Indenture.
The holders of beneficial interests in this Global Security will not be
entitled to receive physical delivery of Definitive Securities except as
described in the Indenture and will not be considered the Holders thereof for
any purpose under the Indenture.]
[If a Definitive Security, insert--As provided in the Indenture and
subject to certain limitations therein set forth, the transfer of this Security
is registerable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Partnership in The City
of New York , or, subject to any laws or regulations applicable thereto and to
the right of the Partnership (limited as provided in the Indenture) to rescind
the designation of any such transfer agent, at the offices of _________________
in the Borough of Manhattan, The City of New York, and at such other offices or
agencies as the Partnership may designate, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Partnership and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new
A-5
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 $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Partnership may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Partnership, the Trustee and any agent of the Partnership or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security is overdue, and neither the
Partnership, the Trustee nor any such agent shall be affected by notice to the
contrary.
[If a Transfer Restricted Security, insert--The Holder of this Security
is entitled to the benefits of the Registration Rights Agreement dated as of
August 19, 2003 (the "Registration Rights Agreement") by and among the
Partnership and the Initial Purchasers named therein, and such Holders shall
also have certain obligations to indemnify the Partnership under certain
circumstances, all as more fully set forth in the Registration Rights Agreement.
In certain events, the Partnership shall be required to pay to the Holder of
this Security additional interest on this Security, on the terms and subject to
the conditions of the Registration Rights Agreement.]
Obligations of the Partnership under the Indenture and the Securities
thereunder, including this Security, are non-recourse to Buckeye Pipe Line
Company (the "General Partner") and its Affiliates (other than the Partnership),
and payable only out of cash flow and assets of the Partnership. The Trustee,
and each Holder of a Security by its acceptance hereof, will be deemed to have
agreed in the Indenture that (1) neither the General Partner nor its assets (nor
any of its Affiliates, other than the Partnership, or their respective assets)
shall be liable for any of the obligations of the Partnership under the
Indenture or such Securities, including this Security, and (2) no director,
officer, employee, stockholder or unitholder, as such, of the Partnership, the
Trustee, the General Partner or any Affiliate of any of the foregoing entities
shall have any personal liability in respect of the obligations of the
Partnership under the Indenture or such Securities by reason of his, her or its
status.
This Security shall be governed by and construed in accordance with the
laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
A-6
[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 BUCKEYE
PARTNERS, L.P. and does hereby irrevocably constitute and appoint
________________________ Attorney to transfer said instrument on the books of
the within-named Partnership, with full power of substitution in the premises.
Please Insert Social Security or
Other Identifying Number of Assignee:
_____________________________________ _________________________________
Dated: ______________________________ _________________________________
(Signature)
Signature Guarantee: ___________________________________________________________
(Participant in a Recognized Signature
Guaranty Medallion Program)
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.]
A-7
[If a Global Security, insert as a separate page--
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been
made:
AMOUNT OF AMOUNT OF PRINCIPAL AMOUNT
DECREASE IN INCREASE IN OF THIS GLOBAL SIGNATURE OF
PRINCIPAL PRINCIPAL AMOUNT SECURITY FOLLOWING AUTHORIZED OFFICER
AMOUNT OF THIS OF THIS SUCH DECREASE OF TRUSTEE OR
DATE OF EXCHANGE GLOBAL SECURITY GLOBAL SECURITY (OR INCREASE) DEPOSITARY]
---------------- --------------- ---------------- ------------------ ------------------
A-8
EXHIBIT B
FORM OF CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF NOTES
Re: 6 3/4% Notes due 2033 of Buckeye Partners, L.P. (the "Notes").
This Certificate relates to $____ principal amount of Notes held 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
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
Second Supplemental Indenture dated as of August 19, 2003 between the
Partnership and the Trustee).
[ ] 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: __________________________________
**Check appropriate box.
B-1
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
_________________, __________
SunTrust Bank, as Security Registrar
x/x Xxxxxxxxxxxxx Xxxxx Xxxxxxx xx Xxx Xxxx
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Ladies and Gentlemen:
In connection with our proposed sale of $_______________ principal
amount of 6 3/4% Notes due 2033 (the "Notes") of Buckeye Partners, L.P. (the
"Partnership"), we confirm that such sale has been effected pursuant to and in
accordance with Regulation S under the United States Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
(i) the offer of the Notes was not made to a person in the United
States of America;
(ii) at the time the buy order was originated, the transferee was
outside the United States of America or we and any person
acting on our behalf reasonably believed that the transferee
was outside the United States of America;
(iii) no directed selling efforts have been made by us in
contravention of Rule 903 or Rule 904 of Regulation S under
the Securities Act, as applicable;
(iv) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(v) if the proposed transfer is being made prior to the expiration
of the 40-day distribution compliance period as set forth in
Regulation S, the transfer is not being made to, or for the
benefit or account of, a U.S. Person (other than a
distributor).
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 but not defined in this
certificate have the meanings set forth in Regulation S under the Securities
Act.
Very truly yours,
___________________________________
[Name]
By: _______________________________
Name:
Title:
Address:
C-1
