EXHIBIT 4.1
PLAINS ALL AMERICAN PIPELINE, L.P.,
PAA FINANCE CORP.
and
WACHOVIA BANK, NATIONAL ASSOCIATION
as Trustee
---------------
INDENTURE
Dated as of September 25, 2002
DEBT SECURITIES
(UNLIMITED)
TABLE OF CONTENTS
ARTICLE I Definitions 2
SECTION 1.01. Certain Terms Defined 2
SECTION 1.02. Other Definitions 9
SECTION 1.03. Incorporation by Reference of Trust Indenture Act 9
SECTION 1.04. Rules of Construction 9
ARTICLE II Debt Securities 10
SECTION 2.01. Forms Generally 10
SECTION 2.02. Form of Trustee's Certificate of Authentication 10
SECTION 2.03. Principal Amount; Issuable in Series 10
SECTION 2.04. Execution of Debt Securities 13
SECTION 2.05. Authentication and Delivery of Debt Securities 14
SECTION 2.06. Denomination of Debt Securities 15
SECTION 2.07. General Provisions for Registration of Transfer and
Exchange 15
SECTION 2.08. Temporary Debt Securities 16
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities 17
SECTION 2.10. Cancellation of Surrendered Debt Securities 18
SECTION 2.11. Provisions of the Indenture and Debt Securities for the
Sole Benefit of the Parties and the Holders 18
SECTION 2.12. Payment of Interest; Rights Preserved 18
SECTION 2.13. Securities Denominated in Foreign Currencies 18
SECTION 2.14. Wire Transfers 19
SECTION 2.15. Securities Issuable in the Form of a Global Security 19
SECTION 2.16. Medium Term Securities 21
SECTION 2.17. Defaulted Interest 22
SECTION 2.18. Judgments 23
SECTION 2.19. CUSIP Numbers 23
ARTICLE III Redemption of Debt Securities 24
SECTION 3.01. Applicability of Article 24
SECTION 3.02. Notice of Redemption; Selection of Debt Securities 24
SECTION 3.03. Payment of Debt Securities Called for Redemption 25
SECTION 3.04. Mandatory and Optional Sinking Funds 26
SECTION 3.05. Redemption of Debt Securities for Sinking Fund 26
ARTICLE IV Particular Covenants of the Issuers 28
SECTION 4.01. Payment of Principal of, and Premium, If Any, and Interest
on, Debt Securities 28
SECTION 4.02. Maintenance of Offices or Agencies for Registration of
Transfer, Exchange and Payment of Debt Securities 28
SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee 29
SECTION 4.04. Duties of Paying Agents, etc. 29
SECTION 4.05. Statement by Officers as to Default 30
SECTION 4.06. Further Instruments and Acts 30
SECTION 4.07. Corporate, Partnership or Limited Liability Company
Existence 31
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SECTION 4.08. Maintenance of Properties 31
SECTION 4.09. Payment of Taxes and Other Claims 31
SECTION 4.10. Calculation of Original Issue Discount 32
SECTION 4.11. Stay, Extension and Usury Laws 32
ARTICLE V Holders' Lists and Reports by the Issuers and the Trustee 32
SECTION 5.01. Issuers to Furnish Trustee Information as to Names and
Addresses of Holders; Preservation of Information 32
SECTION 5.02. Communications to Holders; Meetings of Holders 33
SECTION 5.03. Reports by Issuers 33
SECTION 5.04. Reports by Trustee 34
SECTION 5.05. Record Dates for Action by Holders 34
ARTICLE VI Remedies of the Trustee and Holders in Event of Default 35
SECTION 6.01. Events of Default 35
SECTION 6.02. Collection of Indebtedness by Trustee, etc. 36
SECTION 6.03. Application of Moneys Collected by Trustee 37
SECTION 6.04. Limitation on Suits by Holders 38
SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise of
Rights Not a Waiver of Default 39
SECTION 6.06. Rights of Holders of Majority in Principal Amount of Debt
Securities to Direct Trustee and to Waive Default 39
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but
May Withhold Such Notice in Certain Circumstances 40
SECTION 6.08. Requirement of an Undertaking To Pay Costs in Certain
Suits under the Indenture or Against the Trustee 40
ARTICLE VII Concerning the Trustee 41
SECTION 7.01. Certain Duties and Responsibilities 41
SECTION 7.02. Certain Rights of Trustee 42
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in Debt
Securities 43
SECTION 7.04. Trustee, Paying Agent or Registrar May Own Debt Securities 44
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust 44
SECTION 7.06. Compensation and Reimbursement 44
SECTION 7.07. Right of Trustee to Rely on an Officers' Certificate
Where No Other Evidence Specifically Prescribed 45
SECTION 7.08. Separate Trustee; Replacement of Trustee 45
SECTION 7.09. Successor Trustee by Merger 46
SECTION 7.10. Eligibility; Disqualification 47
SECTION 7.11. Preferential Collection of Claims Against Issuers 47
SECTION 7.12. Compliance with Tax Laws 47
ARTICLE VIII Concerning the Holders 47
SECTION 8.01. Evidence of Action by Holders 47
SECTION 8.02. Proof of Execution of Instruments and of Holding of
Debt Securities 48
SECTION 8.03. Who May Be Deemed Owner of Debt Securities 48
SECTION 8.04. Instruments Executed by Holders Bind Future Holders 48
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ARTICLE IX Amendment, Supplement and Waiver 49
SECTION 9.01. Without Consent of Holders of Debt Securities 49
SECTION 9.02. With Consent of Holders of Debt Securities 50
SECTION 9.03. Effect of Supplemental Indentures 51
SECTION 9.04. Debt Securities May Bear Notation of Changes by
Supplemental Indentures 52
ARTICLE X Consolidation, Merger, Sale or Conveyance 52
SECTION 10.01. Consolidations and Mergers of the Issuers 52
SECTION 10.02. Rights and Duties of Successor Company 53
ARTICLE XI Satisfaction and Discharge of Indenture; Unclaimed Moneys 53
SECTION 11.01. Satisfaction and Discharge; Application of Trust Money 53
SECTION 11.02. Repayment to Issuers 55
SECTION 11.03. Indemnity for U.S. Government Obligations 55
SECTION 11.04. Reinstatement 55
ARTICLE XII Miscellaneous Provisions 55
SECTION 12.01. Successors and Assigns of Issuers Bound by Indenture 55
SECTION 12.02. Acts of Board, Committee or Officer of Successor
Company Valid 55
SECTION 12.03. Required Notices or Demands 55
SECTION 12.04. Indenture and Debt Securities to Be Construed in
Accordance with the Laws of the State of New York 56
SECTION 12.05. Officers' Certificate and Opinion of Counsel to Be
Furnished upon Application or Demand by the Issuers 56
SECTION 12.06. Payments Due on Legal Holidays 57
SECTION 12.07. Provisions Required by Trust Indenture Act to Control 57
SECTION 12.08. Computation of Interest on Debt Securities 57
SECTION 12.09. Rules by Trustee, Paying Agent and Xxxxxxxxx 00
SECTION 12.10. No Recourse Against Others 57
SECTION 12.11. Severability 58
SECTION 12.12. Effect of Headings 58
SECTION 12.13. Indenture May Be Executed in Counterparts 58
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RECONCILIATION AND TIE BETWEEN
TRUST INDENTURE ACT OF 1939 AND INDENTURE
Trust Indenture Indenture
Act Section Section
--------------- ---------
ss.310(a)(1) 4.03, 7.10
(a)(2) 7.10
(b) 7.08, 7.10
ss.311(a) 7.11
(b) 7.11
ss.312(c) 5.02
ss.313(a) 5.04
(b) 5.04
(c) 5.04
ss.314(a) 5.03
(a)(4) 5.03, 4.05
(c)(1) 12.05
(c)(2) 12.05
(d) not applicable
(e) 12.05
ss.315(a) 7.01, 7.02
(b) 6.07
(c) 6.02
(d) 7.01
(e) 6.08
ss.316(a)(1)(A) 6.06
(a)(1)(B) 6.01, 6.06
(b) 6.04
(c) 6.02, 6.03
ss.317(a)(1) 6.02
(a)(2) 6.02
(b) 7.05
ss.318(a) 1.03, 12.07
NOTE: THIS RECONCILIATION AND TIE SHALL NOT, FOR ANY PURPOSE,
BE DEEMED TO BE A PART OF THE INDENTURE.
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INDENTURE dated as of September 25, 2002, among PLAINS ALL AMERICAN
PIPELINE, L.P., a Delaware limited partnership (the "Partnership"), PAA FINANCE
CORP., a Delaware corporation ("PAA Finance" and, together with the Partnership,
the "Issuers"), and WACHOVIA BANK, NATIONAL ASSOCIATION (the "Trustee").
WITNESSETH:
WHEREAS, Plains All American GP LLC, a Delaware limited liability company
(the "Managing General Partner"), as general partner of Plains AAP, L.P., a
Delaware limited partnership (the "General Partner") and the general partner of
the Partnership, and PAA Finance have duly authorized the execution and delivery
of the Indenture to provide for the issuance from time to time of their
debentures, notes, bonds or other evidences of indebtedness to be issued in one
or more series in an unlimited aggregate principal amount (herein called the
"Debt Securities"), as in the Indenture provided.
WHEREAS, all things necessary to make the Indenture a valid agreement of
the Issuers, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for good and valuable consideration, the sufficiency of which
is hereby acknowledged, the Issuers and the Trustee hereby agree with each
other, for the equal and proportionate benefit of the respective Holders from
time to time of the Debt Securities or any series thereof, as follows:
ARTICLE I
Definitions
SECTION 1.01. Certain Terms Defined. The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of the Indenture and of any Indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01. All
other terms used in the Indenture which are defined in the Trust Indenture Act
or which are by reference therein defined in the Securities Act (except as
herein otherwise expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in the Trust Indenture Act and in
the Securities Act as in force as of the date of original execution of the
Indenture.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Board of Directors" means (a) with respect to the Partnership, the board
of directors of the Managing General Partner, and (b) with respect to PAA
Finance, its board of directors, or, in each case, with respect to any
determination or resolution required or permitted to be made hereunder, any duly
authorized committee or subcommittee of such board.
"Board Resolution" means a copy of a resolution certified by the
appropriate person to have been duly adopted by the Board of Directors of the
Managing General Partner and/or PAA Finance, as the case may be, and to be in
full force and effect on the date of such certification.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in Houston, Texas, the Borough
of Manhattan, the City of New York, New York, or the city in which the Corporate
Trust Office of the Trustee is located, are authorized or obligated by law or
executive order to close.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any successor statute.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of the Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Corporate Trust Office of the Trustee" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of the
Indenture is located at 00000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx, 00000,
Attention: Corporate Trust Group.
"Currency" means Dollars or Foreign Currency.
"Debt Security" or "Debt Securities" has the meaning stated in the first
recital of the Indenture and more particularly means any debt security or debt
securities, as the case may be, of any series authenticated and delivered under
the Indenture.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Depositary" means, unless otherwise specified by the Issuers pursuant to
either Section 2.03 or 2.15, with respect to registered Debt Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, The Depository Trust Company, New York, New York, or any successor
thereto registered as a clearing agency under the Exchange Act or other
applicable statute or regulations.
"Dollar" or "$" means such currency of the United States as at the time of
payment is legal tender for the payment of public and private debts.
"Dollar Equivalent" means, with respect to any monetary amount in a Foreign
Currency, at any time for the determination thereof, the amount of Dollars
obtained by converting such Foreign Currency involved in such computation into
Dollars at the spot rate for the purchase of Dollars with the applicable Foreign
Currency as quoted by Citibank, N.A. (unless another comparable financial
institution is designated by the Issuers) in New York, New York at approximately
11:00 a.m. (New York time) on the date two business days prior to such
determination.
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"Equity Interests" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or a business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited);
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person; and
(5) all warrants, options or other rights to acquire any of the
interests described in clauses (1) through (4) above (but excluding any
debt security that is convertible into, or exchangeable for, any of the
interests described in clauses (1) through (4) above).
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor statute.
"Floating Rate Security" means a Debt Security that provides for the
payment of interest at a variable rate determined periodically by reference to
an interest rate index specified pursuant to Section 2.03.
"Foreign Currency" means a currency issued or adopted by the government of
any country other than the United States or a composite currency the value of
which is determined by reference to the values of the currencies of any group of
countries.
"GAAP" means United States generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect from time to time.
"General Partner" means Plains AAP, L.P., a Delaware limited partnership,
and its successors and permitted assigns as general partner of the Partnership.
"Global Security" means with respect to any series of Debt Securities
issued hereunder, a Debt Security that is executed by the Issuers and
authenticated and delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction, all in accordance with the Indenture, or the
applicable Board Resolution of each of the Issuers and set forth in an Officers'
Certificate, which shall be registered in the name of the Depositary or its
nominee and which shall represent, and shall be denominated in an amount equal
to the aggregate principal amount of, all the Outstanding Debt Securities of
such series or any portion thereof, in either case having
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the same terms, including, without limitation, the same original issue date,
date or dates on which principal is due and interest rate or method of
determining interest.
"Holder," "Holder of Debt Securities" or other similar terms mean, with
respect to a Registered Security, the Registered Holder.
"Indenture" means this instrument as originally executed, or, if amended or
supplemented as herein provided, as so amended or supplemented, and shall
include the form and terms of particular series of Debt Securities as
contemplated hereunder, whether or not a supplemental Indenture is entered into
with respect thereto.
"Issuer Order" means a written order of the Issuers, signed by the Chairman
of the Board of Directors, Chief Executive Officer, President or any Vice
President of each of the Managing General Partner and PAA Finance and by the
Treasurer, Secretary, any Assistant Treasurer or any Assistant Secretary of each
of the Managing General Partner and PAA Finance.
"Issuers" means the Partnership and PAA Finance, and, subject to the
provisions of Article X, shall also include their successors and permitted
assigns.
"Lien" means, with respect to any asset, any mortgage, lien (statutory or
otherwise), pledge, charge, security interest, hypothecation, assignment for
security, claim, preference, priority or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under
applicable law, including any conditional sale or other title retention
agreement or any lease in the nature thereof, any option or other agreement to
grant a security interest in and any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or equivalent statute) of
any jurisdiction, other than a precautionary financing statement respecting a
lease not intended as a security agreement.
"Managing General Partner" means Plains All American GP LLC, a Delaware
limited liability company, and its successors and permitted assigns as the
general partner of the General Partner or as the business entity with the
ultimate authority to manage the business and operations of the Partnership.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, Chief Executive Officer, President or any Vice President of
each of the Managing General Partner and PAA Finance and by the Treasurer,
Secretary, any Assistant Treasurer or any Assistant Secretary of each of the
Managing General Partner and PAA Finance. Each such certificate shall include
the statements provided for in Section 12.05, if applicable.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
for the Issuers (which counsel may be an employee of the Issuers or outside
counsel for the Issuers). Each such opinion shall include the statements
provided for in Section 12.05, if applicable.
"Original Issue Discount Debt Security" means any Debt Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration or acceleration of the maturity thereof pursuant to
Section 6.01.
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"Outstanding" when used with respect to any series of Debt Securities,
means, as of the date of determination, all Debt Securities of that series
theretofore authenticated and delivered under the Indenture, except:
(1) Debt Securities of that series theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(2) Debt Securities of that series for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any paying agent (other than the Partnership or PAA Finance) in
trust or set aside and segregated in trust by the Issuers (if either of the
Issuers shall act as its own paying agent) for the holders of such Debt
Securities; provided, that, if such Debt Securities are to be redeemed,
notice of such redemption has been duly given pursuant to the Indenture or
provision therefor satisfactory to the Trustee has been made; and
(3) Debt Securities of that series which have been paid pursuant to
Section 2.09 or in exchange for or in lieu of which other Debt Securities
have been authenticated and delivered pursuant to the Indenture, other than
any such Debt Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Debt Securities
are held by a bona fide purchaser in whose hands such Debt Securities are
valid obligations of the Issuers;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Debt Securities of any series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Debt Securities owned by the Issuers or any other obligor upon the Debt
Securities or any Subsidiary of the Issuers or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which
a Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Debt Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Debt Securities and
that the pledgee is not one of the Issuers or any other obligor upon the Debt
Securities or a Subsidiary of the Issuers or of such other obligor. In
determining whether the Holders of the requisite principal amount of outstanding
Debt Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of an Original Issue
Discount Debt Security that shall be deemed to be Outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as of
the date of such determination upon a declaration of acceleration of the
maturity thereof pursuant to Section 6.01. In determining whether the Holders of
the requisite principal amount of the Outstanding Debt Securities of any series
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of a Debt Security denominated in one or
more Foreign Currencies or currency units that shall be deemed to be Outstanding
for such purposes shall be the Dollar Equivalent, determined in the manner
provided as contemplated by Section 2.03 on the date of original issuance of
such Debt Security, of the principal amount (or, in the case of any Original
Issue Discount Security, the Dollar Equivalent on the date of original
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issuance of such Security of the amount determined as provided in the preceding
sentence above) of such Debt Security.
"PAA Finance" means PAA Finance Corp., a Delaware corporation, and, subject
to the provisions of Article X, shall also include its successors and assigns.
"Partnership" means Plains All American Pipeline, L.P., a Delaware limited
partnership, and, subject to the provisions of Article X, shall also include its
successors and assigns.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" means, when used with respect to the Debt Securities of
any series, the place or places where the principal of, and premium, if any, and
interest on, the Debt Securities of that series are payable as specified
pursuant to Section 2.03.
"Registered Holder" means the Person in whose name a Registered Security is
registered in the Debt Security Register (as defined in Section 2.07(a)).
"Registered Security" means any Debt Security registered as to principal
and interest in the Debt Security Register (as defined in Section 2.07(a)).
"Registrar" has the meaning set forth in Section 2.07(a).
"Responsible Officer" when used with respect to the Trustee, means any
officer within the Corporate Trust Office of the Trustee or any other officer of
the Trustee performing functions similar to those performed by the persons who
at the time shall be such officers, and any other officer of the Trustee to whom
corporate trust matters are referred because of his knowledge of and familiarity
with the particular subject, having responsibility for the administration of the
trust created hereby.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute.
"Stated Maturity" means, at any time, with respect to any installment of
interest or principal on any series of Debt Securities or other indebtedness,
the date on which such payment of interest or principal was scheduled to be paid
in the original documentation governing such indebtedness or such later date as
such documentation shall provide at that time, and shall not include any
contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person:
(1) any corporation, association or other business entity of which
more than 50% of the Voting Stock is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and
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(2) any partnership (whether general or limited) or limited liability
company (a) the sole general partner or the managing general partner or
managing member of which is such Person or a Subsidiary of such Person, or
(b) if there are more than a single general partner or member, either (i)
the only general partners or managing members of which are such Person
and/or one or more Subsidiaries of such Person (or any combination thereof)
or (ii) such Person owns or controls, directly or indirectly, a majority of
the outstanding general partner interests, member interests or other Voting
Stock of such partnership or limited liability company, respectively.
"Trust Indenture Act" (except as herein otherwise expressly provided) means
the Trust Indenture Act of 1939 as in force at the date of the Indenture as
originally executed and, to the extent required by law, as amended, or any
successor statute.
"Trustee" initially means Wachovia Bank, National Association, and any
other Person or Persons appointed as such from time to time pursuant to Section
7.08, and, subject to the provisions of Article VII, includes its or their
successors and assigns. If at any time there is more than one such Person,
"Trustee" as used with respect to the Debt Securities of any series shall mean
the Trustee with respect to the Debt Securities of that series.
"United States" means the United States of America (including the States
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged; (ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, under clause (i) or (ii) above, are not
callable or redeemable at the option of the issuer thereof; or (iii) depository
receipts issued by a bank or trust company as custodian with respect to any such
U.S. Government Obligations or a specific payment of interest on or principal of
any such U.S. Government Obligation held by such custodian for the account of
the holder of a depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation evidenced by such
depository receipt.
"Voting Stock" of any Person as of any date means the Equity Interests of
such Person pursuant to which the holders thereof have the general voting power
under ordinary circumstances to elect at least a majority of the board of
directors, managers, general partners or trustees of any Person (regardless of
whether, at the time, Equity Interests of any other class or classes shall have,
or might have, voting power by reason of the occurrence of any contingency) or,
with respect to a partnership (whether general or limited), any general partner
interest in such partnership.
"Yield to Maturity" means the yield to maturity calculated at the time of
issuance of a series of Debt Securities, or, if applicable, at the most recent
redetermination of interest on such series and calculated in accordance with
accepted financial practice.
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SECTION 1.02. Other Definitions.
Term Section in which Defined
---- ------------------------
"Debt Security Register" 2.07
"Defaulted Interest" 2.17
"Designated Currency" 2.18
"mandatory sinking fund payment" 3.04
"optional sinking fund payment" 3.04
"Successor Company" 10.01
SECTION 1.03. Incorporation by Reference of Trust Indenture Act. The
Indenture is subject to the mandatory provisions of the Trust Indenture Act
which are incorporated by reference in and made a part of the Indenture. The
following Trust Indenture Act terms have the following meanings:
"indenture securities" means the Debt Securities,
"indenture security holder" means a Holder,
"indenture to be qualified" means the Indenture,
"indenture trustee" or "institutional trustee" means the Trustee, and
"obligor" on the indenture securities means the Issuers and any other
obligor on the Debt Securities.
All other Trust Indenture Act terms used in the Indenture that are defined
by the Trust Indenture Act, reference to another statute or defined by rules of
the Commission have the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
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(4) "including" means including without limitation; and
(5) words in the singular include the plural and words in the plural
include the singular.
ARTICLE II
Debt Securities
SECTION 2.01. Forms Generally. The Debt Securities of each series shall be
in substantially the form established without the approval of any Holder by or
pursuant to a Board Resolution of each of the Issuers or in one or more
Indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
the Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as the Issuers
may deem appropriate (and, if not contained in a supplemental Indenture entered
into in accordance with Article IX, as are not prohibited by the provisions of
the Indenture) or as may be required or appropriate to comply with any law or
with any rules made pursuant thereto or with any rules of any securities
exchange on which such series of Debt Securities may be listed, or to conform to
general usage, or as may, consistently herewith, be determined by the officers
executing such Debt Securities as evidenced by their execution of the Debt
Securities.
The definitive Debt Securities of each series shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Debt Securities,
as evidenced by their execution of such Debt Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication. The
Trustee's Certificate of Authentication on all Debt Securities authenticated by
the Trustee shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
-------------------------------------------,
as Trustee
By
----------------------------------------
Authorized Signatory
Dated:
-------------------------------------
SECTION 2.03. Principal Amount; Issuable in Series.
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The aggregate principal amount of Debt Securities which may be issued, executed,
authenticated, delivered and outstanding under the Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established, without the approval of any Holders, in or pursuant to a Board
Resolution of each of the Issuers and set forth in an Officers' Certificate of
each of the Issuers, or established in one or more Indentures supplemental
hereto, prior to the issuance of Debt Securities of any series any or all of the
following:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under the
Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to this Article II);
(3) the date or dates on which the principal and premium, if any, of
the Debt Securities of the series are payable;
(4) the rate or rates (which may be fixed or variable) at which the
Debt Securities of the series shall bear interest, if any, or the method of
determining such rate or rates, the date or dates from which such interest
shall accrue, the interest payment dates on which such interest shall be
payable, or the method by which such date will be determined, and in the
case of Registered Securities, the record dates for the determination of
Holders thereof to whom such interest is payable; and the basis upon which
interest will be calculated if other than that of a 360-day year of twelve
thirty-day months;
(5) the Place or Places of Payment, if any, in addition to or instead
of the Corporate Trust Office of the Trustee where the principal of, and
interest on, Debt Securities of the series shall be payable;
(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which Debt Securities of the series may
be redeemed, in whole or in part, at the option of the Issuers or
otherwise;
(7) the obligation, if any, of the Issuers to redeem, purchase or
repay Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the price or
prices at which and the period or periods within which and the terms and
conditions upon which Debt Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligations;
(8) the terms, if any, upon which the Debt Securities of the series
may be convertible into or exchanged for Equity Interests, other Debt
Securities or other securities of any kind of the Partnership, PAA Finance
or any other obligor or issuer and the terms and conditions upon which such
conversion or exchange shall be effected,
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including the initial conversion or exchange price or rate, the conversion
or exchange period and any other provision in addition to or in lieu of
those described herein;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Debt Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on Debt
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts will be determined;
(11) if the principal amount payable at the Stated Maturity of Debt
Securities of the series will not be determinable as of any one or more
dates prior to such Stated Maturity, the amount which will be deemed to be
such principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any maturity
other than the Stated Maturity or which will be deemed to be Outstanding as
of any such date (or, in any such case, the manner in which such deemed
principal amount is to be determined); and the manner of determining the
equivalent thereof in the currency of the United States of America for
purposes of the definition of Dollar Equivalent;
(12) any changes or additions to Article XI;
(13) if other than Dollars, the coin or Currency or Currencies or
units of two or more Currencies in which payment of the principal of and
premium, if any, and interest on, Debt Securities of the series shall be
payable;
(14) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.01 or provable in bankruptcy pursuant to Section 6.02;
(15) the terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Debt Securities of the series of any
properties, assets, moneys, proceeds, securities or other collateral,
including whether certain provisions of the Trust Indenture Act are
applicable and any corresponding changes to provisions of the Indenture as
currently in effect;
(16) any addition to or change in the Events of Default with respect
to the Debt Securities of the series and any change in the right of the
Trustee or the Holders to declare the principal of and interest on, such
Debt Securities due and payable;
(17) if the Debt Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities, the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Debt Securities in
definitive registered form; and the Depositary for such Global Security or
Securities and the form of any legend or legends to be borne by any such
Global Security or Securities in addition to or in lieu of the legend
referred to in Section 2.15;
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(18) any trustees, authenticating or paying agents, transfer agents or
registrars;
(19) the applicability of, and any addition to or change in the
covenants and definitions currently set forth in the Indenture or in the
terms currently set forth in Article X, including conditioning any merger,
conveyance, transfer or lease permitted by Article X upon the satisfaction
of an indebtedness coverage standard by the Issuers and any Successor
Company (as defined in Article X);
(20) the terms, if any, of any guarantee of the payment of principal
of, and premium, if any, and interest on, Debt Securities of the series and
any corresponding changes to the provisions of the Indenture as currently
in effect;
(21) with regard to Debt Securities of the series that do not bear
interest, the dates for certain required reports to the Trustee;
(22) any other terms of the Debt Securities of the series (which terms
shall not be prohibited by the provisions of the Indenture); and
(23) applicable CUSIP Numbers.
All Debt Securities of any one series appertaining thereto shall be
substantially identical except as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolutions and as set forth in such
Officers' Certificates or in any such Indenture supplemental hereto.
SECTION 2.04. Execution of Debt Securities. The Debt Securities shall be
signed on behalf of the Partnership by the Chairman of the Board of Directors,
the Chief Executive Officer, President or a Vice President of the Managing
General Partner, and shall be signed on behalf of PAA Finance by its Chairman of
the Board of Directors, its Chief Executive Officer, President or a Vice
President. Such signatures upon the Debt Securities may be the manual or
facsimile signatures of the present or any future such authorized officers and
may be imprinted or otherwise reproduced on the Debt Securities. The seals of
the Issuers, if any, may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Debt Securities.
Only such Debt Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, signed manually
by the Trustee, shall be entitled to the benefits of the Indenture or be valid
or obligatory for any purpose. Such certificate by the Trustee upon any Debt
Security executed by the Issuers shall be conclusive evidence that the Debt
Security so authenticated has been duly authenticated and delivered hereunder.
In case any officer of either of the Managing General Partner or PAA
Finance who shall have signed any of the Debt Securities shall cease to be such
officer before the Debt Securities so signed shall have been authenticated and
delivered by the Trustee, or disposed of by the Issuers, such Debt Securities
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed such Debt Securities had not ceased to be such officer of the
Managing General Partner or PAA Finance; and any Debt Security may be signed on
behalf of
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the Issuers by such Persons as, at the actual date of the execution of such Debt
Security, shall be the proper officers of the Managing General Partner or PAA
Finance, as applicable, although at the date of such Debt Security or of the
execution of the Indenture any such Person was not such officer.
SECTION 2.05. Authentication and Delivery of Debt Securities. At any time
and from time to time after the execution and delivery of the Indenture, the
Issuers may deliver Debt Securities of any series executed by the Issuers to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver said Debt Securities to or upon an Issuer Order. The Debt Securities
shall be dated the date of their authentication. In authenticating such Debt
Securities and accepting the additional responsibilities under the Indenture in
relation to such Debt Securities, the Trustee shall be entitled to receive, and
(subject to Section 7.01) shall be fully protected in relying upon:
(1) a copy of any Board Resolution of each of the Issuers, certified
by the Secretary or Assistant Secretary of each of the Issuers, authorizing
the terms of issuance of any series of Debt Securities;
(2) an executed supplemental Indenture, if any;
(3) an Officers' Certificate; and
(4) an Opinion of Counsel prepared in accordance with Section 12.05
substantially to the effect that:
(a) the form of such Debt Securities has been established by or
pursuant to a Board Resolution of each of the Issuers or by a
supplemental Indenture as permitted by Section 2.01 in conformity with
the provisions of the Indenture;
(b) the terms of such Debt Securities have been established by or
pursuant to a Board Resolution of each of the Issuers or by a
supplemental Indenture as permitted by Section 2.03 in conformity with
the provisions of the Indenture; and
(c) such Debt Securities, when authenticated and delivered by the
Trustee and issued by the Issuers in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Issuers, enforceable in
accordance with their terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.
Such Opinion of Counsel need express no opinion as to whether a court in
the United States would render a money judgment in a Currency other than
Dollars.
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The Trustee shall have the right to decline to authenticate and deliver any
Debt Securities under this Section 2.05 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith by its board of directors or trustees, executive committee or a
trust committee of directors, trustees or vice presidents shall determine that
such action would expose the Trustee to personal liability to existing Holders.
The Trustee may appoint an authenticating agent reasonably acceptable to
the Issuers to authenticate Debt Securities of any series. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Debt
Securities whenever the Trustee may do so. Each reference in the Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, paying agent or agent
for service of notices and demands.
SECTION 2.06. Denomination of Debt Securities. Unless otherwise provided in
the form of Debt Security for any series, the Debt Securities of each series
shall be issuable only as Registered Securities in such denominations as shall
be specified or contemplated by Section 2.03. In the absence of any such
specification with respect to the Debt Securities of any series, the Debt
Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
SECTION 2.07. General Provisions for Registration of Transfer and Exchange.
(a) The Issuers shall keep or cause to be kept a register for each series of
Registered Securities issued hereunder (hereinafter collectively referred to as
the "Debt Security Register"), in which, subject to such reasonable regulations
as they may prescribe, the Issuers shall provide for the registration of
Registered Securities and the transfer of Registered Securities as in this
Article II provided. At all reasonable times the Debt Security Register shall be
open for inspection by the Trustee. Subject to Section 2.15, upon due
presentment for registration of transfer of any Registered Security at any
office or agency to be maintained by the Issuers in accordance with the
provisions of Section 4.02, the Issuers shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Registered Security or Registered Securities of authorized denominations for a
like aggregate principal amount.
Unless and until otherwise determined by a Board Resolution of each of the
Issuers, the register of the Issuers for the purpose of registration, exchange
or registration of transfer of the Registered Securities shall be kept at the
Corporate Trust Office of the Trustee and, for this purpose, the Trustee shall
be designated "Registrar". No prior notice to the Holders of Debt Securities is
required to effect the designation of a substitute Registrar by the Issuers.
Registered Securities of any series (other than a Global Security) may be
exchanged for a like aggregate principal amount of Registered Securities of the
same series of other authorized denominations. Subject to Section 2.15,
Registered Securities to be exchanged shall be surrendered at the office or
agency to be maintained by the Issuers as provided in Section 4.02, and the
Issuers shall execute and the Trustee shall authenticate and deliver in exchange
therefor the Registered Security or Registered Securities that the Holder making
the exchange shall be entitled to receive.
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(b) All Registered Securities presented or surrendered for registration of
transfer, exchange or payment shall (if so required by the Issuers, the Trustee
or the Registrar) be duly endorsed or be accompanied by a written instrument or
instruments of transfer, in form satisfactory to the Issuers, the Trustee and
the Registrar, duly executed by the Registered Holder or his attorney duly
authorized in writing.
All Debt Securities issued in exchange for or upon transfer of Debt
Securities shall be the legal, valid and binding obligations of the Issuers,
evidencing the same debt, and entitled to the same benefits under the Indenture
as the Debt Securities surrendered for such exchange or transfer.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities (except as provided by Section 2.09), but the
Issuers may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto, other than those
expressly provided in the Indenture to be made at the Issuers' own expense or
without expense or without charge to the Holders.
The Issuers shall not be required (a) to issue, register the transfer of or
exchange any Debt Securities (i) for a period of 15 days next preceding any
selection for redemption or repurchase of Debt Securities of such series or (ii)
between a record date and the next succeeding interest payment date, or (b) to
register the transfer of or exchange any Debt Securities selected, called or
being called for redemption or repurchase (except, in the case of Debt
Securities to be redeemed or repurchased in part, the portion not to be redeemed
or repurchased).
Specific procedures for registration of transfer and exchange of any series
of Debt Securities may be set forth in the applicable supplemental Indenture for
such Debt Securities.
SECTION 2.08. Temporary Debt Securities. Pending the preparation of
definitive Debt Securities of any series, the Issuers may execute and the
Trustee shall authenticate and deliver temporary Debt Securities (printed,
lithographed, photocopied, typewritten or otherwise produced) of any authorized
denomination, and substantially in the form of the definitive Debt Securities in
lieu of which they are issued, and with such omissions, insertions and
variations as may be appropriate for temporary Debt Securities, all as may be
determined by the Issuers with the concurrence of the Trustee. Temporary Debt
Securities may contain such reference to any provisions of the Indenture as may
be appropriate. Every temporary Debt Security shall be executed by the Issuers
and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive Debt
Securities.
If temporary Debt Securities of any series are issued, the Issuers will
cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series upon surrender of the temporary Debt
Securities of such series at the office or agency of the Issuers at a Place of
Payment for such series, without charge to the Holder thereof, except as
provided in Section 2.07 in connection with a transfer, and upon surrender for
cancellation of any one or more temporary
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Debt Securities of any series, the Issuers shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Debt Securities of the same series of authorized denominations and of
like tenor. Until so exchanged, temporary Debt Securities of any series shall in
all respects be entitled to the same benefits under the Indenture as definitive
Debt Securities of such series, except as otherwise specified as contemplated by
Section 2.03(17) with respect to the payment of interest on Global Securities in
temporary form.
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Debt Securities represented
thereby pursuant to Section 2.07 or this Section 2.08, the temporary Global
Security shall be endorsed by the Trustee to reflect the reduction of the
principal amount evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by the amount so
exchanged and endorsed.
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities. If (i)
any mutilated Debt Security is surrendered to the Trustee at the Corporate Trust
Office of the Trustee (in the case of Registered Securities) or (ii) the Issuers
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Debt Security, and there is delivered to the Issuers and the
Trustee such security or indemnity as may be required by them to save each of
them and any paying agent harmless, and neither the Issuers nor the Trustee
receives written notice that such Debt Security has been acquired by a bona fide
purchaser, then the Issuers shall execute and, upon an Issuer Order, the Trustee
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Debt Security, a new Debt Security of the
same series of like tenor, form, terms and principal amount, bearing a number
not contemporaneously Outstanding. Upon the issuance of any substituted Debt
Security, the Issuers may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses connected therewith. In case any Debt Security which has matured
or is about to mature or which has been called for redemption shall become
mutilated or be destroyed, lost or stolen, the Issuers may, instead of issuing a
substituted Debt Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Debt Security) if the
applicant for such payment shall furnish the Issuers and the Trustee with such
security or indemnity as either may require to save it harmless from all risk,
however remote, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Issuers and the Trustee of the destruction, loss or theft of
such Debt Security and of the ownership thereof.
Every substituted Debt Security of any series issued pursuant to the
provisions of this Section 2.09 by virtue of the fact that any Debt Security is
destroyed, lost or stolen shall constitute an original additional contractual
obligation of the Issuers, whether or not the destroyed, lost or stolen Debt
Security shall be found at any time, and shall be entitled to all the benefits
of the Indenture equally and proportionately with any and all other Debt
Securities of that series duly issued hereunder. All Debt Securities shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Debt Securities, and shall preclude any and all other rights or
remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with
17
respect to the replacement or payment of negotiable instruments or other
securities without their surrender, in each case to the fullest extent permitted
by law.
SECTION 2.10. Cancellation of Surrendered Debt Securities. All Debt
Securities surrendered for payment, redemption, registration of transfer or
exchange shall, if surrendered to the Issuers or any paying agent or a
Registrar, be delivered to the Trustee for cancellation by it, or if surrendered
to the Trustee, shall be canceled by it, and no Debt Securities shall be issued
in lieu thereof except as expressly permitted by any of the provisions of the
Indenture. All canceled Debt Securities held by the Trustee shall be disposed of
by the Trustee in its customary manner. On request of the Issuers, the Trustee
shall deliver to the Issuers canceled Debt Securities held by the Trustee. If
the Issuers shall acquire any of the Debt Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented thereby unless and until the same are delivered or surrendered to
the Trustee for cancellation. The Issuers may not issue new Debt Securities to
replace Debt Securities it has redeemed, paid or delivered to the Trustee for
cancellation.
SECTION 2.11. Provisions of the Indenture and Debt Securities for the Sole
Benefit of the Parties and the Holders. Nothing in the Indenture or in the Debt
Securities, expressed or implied, shall give or be construed to give to any
Person, other than the parties hereto, the Holders or any Registrar or paying
agent, any legal or equitable right, remedy or claim under or in respect of the
Indenture, or under any covenant, condition or provision herein contained, all
its covenants, conditions and provisions being for the sole benefit of the
parties hereto, the Holders and any Registrar and paying agents.
SECTION 2.12. Payment of Interest; Rights Preserved. (a) Interest on any
Registered Security that is payable and is punctually paid or duly provided for
on any interest payment date shall be paid to the Person in whose name such
Registered Security is registered at the close of business on the regular record
date for such interest notwithstanding the cancellation of such Registered
Security upon any transfer or exchange subsequent to the regular record date.
Payment of interest on Registered Securities shall be made at the Corporate
Trust Office of the Trustee (except as otherwise specified pursuant to Section
2.03), or at the option of the Issuers, by check mailed to the address of the
Person entitled thereto as such address shall appear in the Debt Security
Register or, if provided pursuant to Section 2.03 and in accordance with
arrangements satisfactory to the Trustee, at the option of the Registered Holder
by wire transfer to an account designated by the Registered Holder.
(b) Subject to the foregoing provisions of this Section 2.12 and Section
2.17, each Debt Security of a particular series delivered under the Indenture
upon registration of transfer of or in exchange for or in lieu of any other Debt
Security of the same series shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Debt Security.
SECTION 2.13. Securities Denominated in Foreign Currencies.
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(a) Except as otherwise specified pursuant to Section 2.03 for Registered
Securities of any series, payment of the principal of, and premium, if any, and
interest on, Registered Securities of such series will be made in Dollars.
(b) For the purposes of calculating the principal amount of Debt Securities
of any series denominated in a Foreign Currency or in units of two or more
Foreign Currencies for any purpose under the Indenture, the principal amount of
such Debt Securities at any time Outstanding shall be deemed to be the Dollar
Equivalent of such principal amount as of the date of any such calculation.
In the event any Foreign Currency or currencies or units of two or more
Currencies in which any payment with respect to any series of Debt Securities
may be made ceases to be a freely convertible Currency on United States Currency
markets, for any date thereafter on which payment of principal of, or premium,
if any, or interest on, the Debt Securities of a series is due, the Issuers
shall select the Currency of payment for use on such date, all as provided in
the Debt Securities of such series. In such event, the Issuers shall, as
provided in the Debt Securities of such series, notify the Trustee of the
Currency which they have selected to constitute the funds necessary to meet the
Issuers' obligations or such payment date and of the amount of such Currency to
be paid. Such amount shall be determined as provided in the Debt Securities of
such series. The payment to the Trustee with respect to such payment date shall
be made by the Issuers solely in the Currency so selected.
SECTION 2.14. Wire Transfers. Notwithstanding any other provision to the
contrary in the Indenture, the Issuers may make any payment of monies required
to be deposited with the Trustee on account of principal of, or premium, if any,
or interest on, the Debt Securities (whether pursuant to optional or mandatory
redemption payments, interest payments or otherwise) by wire transfer of
immediately available funds to an account designated by the Trustee on or before
the date such moneys are to be paid to the Holders of the Debt Securities in
accordance with the terms hereof.
SECTION 2.15. Securities Issuable in the Form of a Global Security. (a) If
the Issuers shall establish pursuant to Sections 2.01 and 2.03 that the Debt
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the Issuers shall execute and the
Trustee or its agent shall, in accordance with Section 2.05, authenticate and
deliver, such Global Security or Securities, which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Debt Securities of such series to be represented by such Global
Security or Securities, or such portion thereof as the Issuers shall specify in
an Officers' Certificate, (ii) shall be registered in the name of the Depositary
for such Global Security or securities or its nominee, (iii) shall be delivered
by the Trustee or its agent to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for the individual Debt
Securities represented hereby, this Global Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or
19
any such nominee to a successor Depositary or a nominee of such successor
Depositary", or such other legend as may then be required by the Depositary for
such Global Security or Securities.
(b) Notwithstanding any other provision of this Section 2.15 or of Section
2.07 to the contrary, and subject to the provisions of paragraph (c) below,
unless the terms of a Global Security expressly permit such Global Security to
be exchanged in whole or in part for definitive Debt Securities in registered
form, a Global Security may be transferred, in whole but not in part and in the
manner provided in Section 2.07, only by the Depositary to a nominee of the
Depositary for such Global Security, or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary, or by the Depositary or a
nominee of the Depositary to a successor Depositary for such Global Security
selected or approved by the Issuers, or to a nominee of such successor
Depositary.
(c) (i) If at any time the Depositary for a Global Security or Securities
notifies the Issuers that it is unwilling or unable to continue as Depositary
for such Global Security or Securities or if at any time the Depositary for the
Debt Securities for such series shall no longer be eligible or in good standing
under the Exchange Act or other applicable statute, rule or regulation, the
Issuers shall appoint a successor Depositary with respect to such Global
Security or Securities. If a successor Depositary for such Global Security or
Securities is not appointed by the Issuers within 90 days after the Issuers
receive such notice or become aware of such ineligibility, the Issuers shall
execute, and the Trustee or its agent, upon receipt of an Issuer Order for the
authentication and delivery of such individual Debt Securities of such series in
exchange for such Global Security, will authenticate and deliver, individual
Debt Securities of such series of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
in exchange for such Global Security or Securities.
(ii) The Issuers may at any time and in their sole discretion determine
that the Debt Securities of any series or portion thereof issued or issuable in
the form of one or more Global Securities shall no longer be represented by such
Global Security or Securities. In such event the Issuers will execute, and the
Trustee, upon receipt of an Issuer Order for the authentication and delivery of
individual Debt Securities of such series in exchange in whole or in part for
such Global Security, will authenticate and deliver individual Debt Securities
of such series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such series or portion thereof
in exchange for such Global Security or Securities.
(iii) If specified by the Issuers pursuant to Sections 2.01 and 2.03 with
respect to Debt Securities issued or issuable in the form of a Global Security,
the Depositary for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Debt Securities of such series of
like tenor and terms in definitive form on such terms as are acceptable to the
Issuers, the Trustee and such Depositary. Thereupon the Issuers shall execute,
and the Trustee or its agent upon receipt of an Issuer Order for the
authentication and delivery of definitive Debt Securities of such series shall
authenticate and deliver, without service charge, (1) to each Person specified
by such Depositary a new Debt Security or Securities of the same series of like
tenor and terms and of any authorized denomination as requested by such Person
in aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security, and (2) to such Depositary a new
Global Security of like tenor
20
and terms and in an authorized denomination equal to the difference, if any,
between the principal amount of the surrendered Global Security and the
aggregate principal amount of Debt Securities delivered to Holders thereof,
unless the Global Security being exchanged is endorsed by the Trustee or other
custodian to reflect a reduction of such aggregate principal amount, in which
case no new Global Security shall be authenticated and delivered.
(iv) In any exchange provided for in any of the preceding three paragraphs,
the Issuers will execute and the Trustee or its agent will authenticate and
deliver individual Debt Securities. Upon the exchange of the entire principal
amount of a Global Security for individual Debt Securities, such Global Security
shall be canceled by the Trustee or its agent. Except as provided in the
preceding paragraph, Registered Securities issued in exchange for a Global
Security pursuant to this Section 2.15 shall be registered in such names and in
such authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee or the Registrar. The Trustee or the Registrar shall
deliver such Registered Securities to the Persons in whose names such Registered
Securities are so registered.
(v) Payments in respect of the principal of and interest on any Debt
Securities registered in the name of the Depositary or its nominee will be
payable to the Depositary or such nominee in its capacity as the registered
owner of such Global Security. The Issuers and the Trustee may treat the Person
in whose name the Debt Securities, including the Global Security, are registered
as the owner thereof for the purpose of receiving such payments and for any and
all other purposes whatsoever. None of the Issuers, the Trustee, any Registrar,
the paying agent or any agent of the Issuers or the Trustee will have any
responsibility or liability for (a) any aspect of the records relating to or
payments made on account of the beneficial ownership interests of the Global
Security by the Depositary or its nominee or any of the Depositary's direct or
indirect participants, or for maintaining, supervising or reviewing any records
of the Depositary, its nominee or any of the Depositary's direct or indirect
participants relating to the beneficial ownership interests of the Global
Security, (b) the payments to the beneficial owners of the Global Security of
amounts paid to the Depositary or its nominee, or (c) any other matter relating
to the actions and practices of the Depositary, its nominee or any of the
Depositary's direct or indirect participants. None of the Issuers, the Trustee
or any such agent will be liable for any delay by the Depositary, its nominee,
or any of the Depositary's direct or indirect participants in identifying the
beneficial owners of the Debt Securities, and the Issuers and the Trustee may
conclusively rely on, and will be protected in relying on, instructions from the
Depositary or its nominee for all purposes (including with respect to the
registration and delivery, and the respective principal amounts, of the Debt
Securities to be issued).
SECTION 2.16. Medium Term Securities. Notwithstanding any contrary
provision herein, if all Debt Securities of a series are not to be originally
issued at one time, it shall not be necessary for the Issuers to deliver to the
Trustee an Officers' Certificate, a Board Resolution, a supplemental Indenture,
an Opinion of Counsel or a written order or any other document otherwise
required pursuant to Section 2.01, 2.03, 2.05 or 12.05 at or prior to the time
of authentication of each Debt Security of such series if such documents are
delivered to the Trustee or its agent at or prior to the authentication upon
original issuance of the first such Debt Security of such series to be issued;
provided, that any subsequent
21
request by the Issuers to the Trustee to authenticate Debt Securities of such
series upon original issuance shall constitute a representation and warranty by
the Issuers that, as of the date of such request, the statements made in the
Officers' Certificate delivered pursuant to Section 2.05 or 12.05 shall be true
and correct as if made on such date and that the Opinion of Counsel delivered at
or prior to such time of authentication of an original issuance of Debt
Securities shall specifically state that it shall relate to all subsequent
issuances of Debt Securities of such series that are identical to the Debt
Securities issued in the first issuance of Debt Securities of such series.
An Issuer Order delivered by the Issuers to the Trustee in the
circumstances set forth in the preceding paragraph may provide that Debt
Securities which are the subject thereof will be authenticated and delivered by
the Trustee or its agent on original issue from time to time upon the written
order of Persons designated in such written order and that such Persons are
authorized to determine, consistent with the Officers' Certificates,
supplemental Indenture or the applicable Board Resolutions relating to such
written order, such terms and conditions of such Debt Securities as are
specified in such Officers' Certificates, supplemental Indenture or such Board
Resolutions.
SECTION 2.17. Defaulted Interest. Any interest on any Debt Security of a
particular series which is payable, but is not punctually paid or duly provided
for, on the dates and in the manner provided in the Debt Securities of such
series and in the Indenture (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Registered Holder thereof on the relevant record date
by virtue of having been such Registered Holder, and such Defaulted Interest may
be paid by the Issuers, at their election in each case, as provided in clause
(i) or (ii) below:
(i) The Issuers may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series are
registered at the close of business on a special record date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner: The Issuers shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Registered Security of
such series and the date of the proposed payment, and at the same time the
Issuers shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
special record date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Issuers of such special record date and, in the name and at the expense
of the Issuers, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed, first
class postage prepaid, to each Holder thereof at its address as it appears
in the Debt Security Register, not less than 10 days prior to such special
record date. Notice of the proposed payment of such Defaulted Interest and
the special record date therefor having been so mailed,
22
such Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series are registered at the close of
business on such special record date.
(ii) The Issuers may make payment of any Defaulted Interest on the
Registered Securities of such series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Registered Securities of such series may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Issuers to
the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
SECTION 2.18. Judgments. The Issuers may provide pursuant to Section 2.03
for Debt Securities of any series that (a) the obligation, if any, of the
Issuers to pay the principal of, and premium, if any, and interest on, the Debt
Securities of any series in a Foreign Currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 2.03 is of the essence and
agrees that, to the fullest extent possible under applicable law, judgments in
respect of Debt Securities of such series shall be given in the Designated
Currency; (b) the obligation of the Issuers to make payments in the Designated
Currency of the principal of, and premium, if any, and interest on, such Debt
Securities shall, notwithstanding any payment in any other Currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of the
amount in the Designated Currency that the Holder receiving such payment may, in
accordance with normal banking procedures, purchase with the sum paid in such
other Currency (after any premium and cost exchange) on the business day in the
country of issue of the Designated Currency or in the international banking
community (in the case of a composite currency) immediately following the day on
which such Holder receives such payment; (c) if the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
originally due, the Issuers shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Issuers not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
SECTION 2.19. CUSIP Numbers. The Issuers in issuing the Debt Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Debt Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Debt Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Issuers will promptly notify the Trustee of any change in the "CUSIP"
numbers.
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ARTICLE III
Redemption of Debt Securities
SECTION 3.01. Applicability of Article. The provisions of this Article
shall be applicable to the Debt Securities of any series which are redeemable
before their Stated Maturity except as otherwise specified as contemplated by
Section 2.03 for Debt Securities of such series.
SECTION 3.02. Notice of Redemption; Selection of Debt Securities. In case
the Issuers shall desire to exercise the right to redeem all or, as the case may
be, any part of the Debt Securities of any series in accordance with their
terms, a Board Resolution of each Issuer or a supplemental Indenture, the
Issuers shall fix a date for redemption and shall give notice of such redemption
at least 30 and not more than 60 days prior to the date fixed for redemption to
the Holders of Debt Securities of such series so to be redeemed as a whole or in
part, in the manner provided in Section 12.03. The notice may not be
conditional. The notice if given in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, failure to give such notice or any defect in
the notice to the Holder of any Debt Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debt Security of such series.
Each such notice of redemption shall specify the amount of Debt Securities
of any series to be redeemed, the date fixed for redemption, the calculation of
the redemption price at which Debt Securities of such series are to be redeemed
(but not the redemption price itself if it is not then determinable), the Place
or Places of Payment that payment will be made upon presentation and surrender
of such Debt Securities, that any interest accrued to the date fixed for
redemption will be paid as specified in said notice, that the redemption is for
a sinking fund payment (if applicable), that on and after said date any interest
thereon or on the portions thereof to be redeemed will cease to accrue, that in
the case of Original Issue Discount Securities original issue discount accrued
after the date fixed for redemption will cease to accrue, the terms of the Debt
Securities of that series pursuant to which the Debt Securities of that series
are being redeemed and that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Debt Securities of that series. If less than all the Debt Securities of a series
are to be redeemed the notice of redemption shall specify the CUSIP numbers of
the Debt Securities of that series to be redeemed. In case any Debt Security of
a series is to be redeemed in part only, the notice of redemption shall state
the portion of the principal amount thereof to be redeemed and shall state that
on and after the date fixed for redemption, upon surrender of such Debt
Security, a new Debt Security or Debt Securities of that series will be issued
in principal amount equal to the unredeemed portion thereof.
At least 60 days before the redemption date, unless the Trustee consents to
a shorter period, the Issuers shall give written notice to the Trustee of the
redemption date, the principal amount of Debt Securities to be redeemed and the
series and terms of the Debt Securities pursuant to which such redemption will
occur. Such notice shall be accompanied by
24
an Officers' Certificate and an Opinion of Counsel to the effect that such
redemption will comply with the conditions herein. If fewer than all the Debt
Securities of a series are to be redeemed, the record date relating to such
redemption shall be selected by the Issuers and given to the Trustee, which
record date shall be not less than 15 days after the date of notice to the
Trustee.
No later than 11:00 a.m., New York City time, on the redemption date for
any Debt Securities, the Issuers shall deposit with the Trustee or with a paying
agent (or, if the Partnership or PAA Finance is acting as its own paying agent,
segregate and hold in trust) an amount of money in the Currency in which such
Debt Securities are denominated (except as provided pursuant to Section 2.03)
sufficient to pay the redemption price of such Debt Securities or any portions
thereof that are to be redeemed on that date.
If less than all the Debt Securities of like tenor and terms of a series
are to be redeemed (other than pursuant to mandatory sinking fund redemptions),
the Trustee shall select the Debt Securities of that series or portions thereof
(in multiples of $1,000) to be redeemed (i) if such Debt Securities are listed
on an exchange, in compliance with the requirements of the principal national
securities exchange on which such Debt Securities are listed, or (ii) if such
Debt Securities are not listed on an exchange or such exchange has no selection
requirements, on a pro rata basis, by lot or by such other method as in its sole
discretion the Trustee shall deem appropriate and fair. In any case where more
than one Debt Security of such series is registered in the same name, the
Trustee in its discretion may treat the aggregate principal amount so registered
as if it were represented by one Debt Security of such series. The Trustee shall
promptly notify the Issuers in writing of the Debt Securities selected for
redemption and, in the case of any Debt Securities selected for partial
redemption, the principal amount thereof to be redeemed. If any Debt Security
called for redemption shall not be so paid upon surrender thereof on such
redemption date, the principal, premium, if any, and interest shall bear
interest until paid from the redemption date at the rate borne by the Debt
Securities of that series. If less than all the Debt Securities of unlike tenor
and terms of a series are to be redeemed, the particular Debt Securities to be
redeemed shall be selected by the Issuers. Provisions of the Indenture that
apply to Debt Securities called for redemption also apply to portions of Debt
Securities called for redemption.
SECTION 3.03. Payment of Debt Securities Called for Redemption. If notice
of redemption has been given as provided in Section 3.02, the Debt Securities or
portions of Debt Securities of the series with respect to which such notice has
been given shall become due and payable on the date and at the Place or Places
of Payment stated in such notice at the applicable redemption price, together
with any interest accrued to the date fixed for redemption, and on and after
said date (unless the Issuers shall default in the payment of such Debt
Securities at the applicable redemption price, together with any interest
accrued to said date) any interest on the Debt Securities or portions of Debt
Securities of any series so called for redemption shall cease to accrue and any
original issue discount in the case of Original Issue Discount Securities shall
cease to accrue. On presentation and surrender of such Debt Securities at the
Place or Places of Payment in said notice specified, the said Debt Securities or
the specified portions thereof shall be paid and redeemed by the Issuers at the
applicable redemption price, together with any interest accrued thereon to the
date fixed for redemption.
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Any Debt Security that is to be redeemed only in part shall be surrendered
at the Corporate Trust Office of the Trustee or such other office or agency of
the Issuers as is specified pursuant to Section 2.03, if the Issuers, the
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuers, the Registrar and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing, and the Issuers shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Debt Security without service charge, a new
Debt Security or Debt Securities of the same series, of like tenor and form, of
any authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Debt Security so surrendered; except that if a Global Security is so
surrendered, the Issuers shall execute, and the Trustee shall authenticate and
deliver to the Depositary for such Global Security, without service charge, a
new Global Security in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Global Security so surrendered. In
the case of a Debt Security providing appropriate space for such notation, at
the option of the Holder thereof, the Trustee, in lieu of delivering a new Debt
Security or Debt Securities as aforesaid, may make a notation on such Debt
Security of the payment of the redeemed portion thereof.
SECTION 3.04. Mandatory and Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of Debt Securities of any
series, a Board Resolution of each Issuer or a supplemental Indenture is herein
referred to as a "mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of Debt Securities of any series,
a Board Resolution of each Issuer or a supplemental Indenture is herein referred
to as an "optional sinking fund payment."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Debt Securities of a series in cash, the Issuers may at
their option (a) deliver to the Trustee Debt Securities of that series
theretofore purchased or otherwise acquired by the Issuers or (b) receive credit
for the principal amount of Debt Securities of that series which have been
redeemed either at the election of the Issuers pursuant to the terms of such
Debt Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Debt Securities, Board Resolution of each
Issuer or supplemental Indenture; provided, that such Debt Securities have not
been previously so credited. Such Debt Securities shall be received and credited
for such purpose by the Trustee at the redemption price specified in such Debt
Securities, the applicable Board Resolution of each Issuer or supplemental
Indenture for redemption through operation of the sinking fund and the amount of
such mandatory sinking fund payment shall be reduced accordingly.
SECTION 3.05. Redemption of Debt Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for any series of Debt
Securities, the Issuers will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, any Board Resolution or supplemental
Indenture, the portion thereof, if any, which is to be satisfied by payment of
cash in the Currency in which the Debt Securities of such series are denominated
(except as provided pursuant to Section 2.03) and the portion thereof, if any,
which is to be
26
satisfied by delivering and crediting Debt Securities of that series pursuant to
this Section 3.05 (which Debt Securities, if not previously redeemed, will
accompany such certificate) and whether the Issuers intend to exercise their
right to make any permitted optional sinking fund payment with respect to such
series. Such certificate shall also state that no Event of Default has occurred
and is continuing with respect to such series. Such certificate shall be
irrevocable and upon its delivery the Issuers shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuers to deliver such
certificate (or to deliver the Debt Securities specified in this paragraph)
shall not constitute a Default, but such failure shall require that the sinking
fund payment due on the next succeeding sinking fund payment date for that
series shall be paid entirely in cash and shall be sufficient to redeem the
principal amount of such Debt Securities subject to a mandatory sinking fund
payment without the option to deliver or credit Debt Securities as provided in
this Section 3.05 and without the right to make any optional sinking fund
payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $100,000 (or a lesser sum if the Issuers shall so
request) with respect to the Debt Securities of any particular series shall be
applied by the Trustee on the sinking fund payment date on which such payment is
made (or, if such payment is made before a sinking fund payment date, on the
sinking fund payment date following the date of such payment) to the redemption
of such Debt Securities at the redemption price specified in such Debt
Securities, the applicable Board Resolution or supplemental Indenture for
operation of the sinking fund together with any accrued interest to the date
fixed for redemption. Any sinking fund moneys not so applied or allocated by the
Trustee to the redemption of Debt Securities shall be added to the next cash
sinking fund payment received by the Trustee for such series and, together with
such payment, shall be applied in accordance with the provisions of this Section
3.05. Any and all sinking fund moneys with respect to the Debt Securities of any
particular series held by the Trustee on the last sinking fund payment date with
respect to Debt Securities of such series and not held for the payment or
redemption of particular Debt Securities shall be applied by the Trustee,
together with other moneys, if necessary, to be deposited sufficient for the
purpose, to the payment of the principal of the Debt Securities of that series
at its Stated Maturity.
The Trustee shall select the Debt Securities to be redeemed upon such
sinking fund payment date in the manner specified in the last paragraph of
Section 3.02 and the Issuers shall cause notice of the redemption thereof to be
given in the manner provided in Section 3.02 except that the notice of
redemption shall also state that the Debt Securities are being redeemed by
operation of the sinking fund. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Section 3.03.
At least one business day before each sinking fund payment date, the
Issuers shall pay to the Trustee (or, if the Partnership or PAA Finance is
acting as its own paying agent, the Partnership or PAA Finance shall segregate
and hold in trust) in cash a sum in the Currency in which the Debt Securities of
such series are denominated (except as provided pursuant to Section 2.03) equal
to any interest accrued to the date fixed for redemption of Debt Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section 3.05.
27
The Trustee shall not redeem any Debt Securities of a series with sinking
fund moneys or mail any notice of redemption of such Debt Securities by
operation of the sinking fund for such series during the continuance of a
Default in payment of interest on such Debt Securities or of any Event of
Default known to the Trustee (other than an Event of Default occurring as a
consequence of this paragraph) with respect to such Debt Securities, except that
if the notice of redemption of any such Debt Securities shall theretofore have
been mailed in accordance with the provisions hereof, the Trustee shall redeem
such Debt Securities if cash sufficient for that purpose shall be deposited with
the Trustee for that purpose in accordance with the terms of this Article III.
Except as aforesaid, any moneys in the sinking fund for such series at the time
when any such Default or Event of Default shall occur and any moneys thereafter
paid into such sinking fund shall, during the continuance of such Default or
Event of Default, be held as security for the payment of such Debt Securities;
provided, however, that in case such Default or Event of Default shall have been
cured or waived as provided herein, such moneys shall thereafter be applied on
the next sinking fund payment date for such Debt Securities on which such moneys
may be applied pursuant to the provisions of this Section 3.05.
ARTICLE IV
Particular Covenants of the Issuers
SECTION 4.01. Payment of Principal of, and Premium, If Any, and Interest
on, Debt Securities. The Issuers, for the benefit of each series of Debt
Securities, will duly and punctually pay or cause to be paid the principal of,
and premium, if any, and interest on, each of the Debt Securities at the place,
at the respective times and in the manner provided herein and in the Debt
Securities. Each installment of interest on the Debt Securities may at the
Issuers' option be paid by mailing checks for such interest payable to the
Person entitled thereto to the address of such Person as it appears on the Debt
Security Register maintained pursuant to Section 2.07(a).
Principal, premium and interest in respect of Debt Securities of any series
shall be considered paid on the date due if no later than 11:00 a.m., New York
City time, on such date the Trustee or any paying agent holds in accordance with
the Indenture money sufficient to pay in the Currency in which the Debt
Securities of such series are denominated (except as provided pursuant to
Section 2.03) all principal, premium and interest then due.
The Issuers shall pay interest on overdue principal at the rate specified
therefor in the Debt Securities and they shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. Maintenance of Offices or Agencies for Registration of
Transfer, Exchange and Payment of Debt Securities. The Issuers will maintain in
each Place of Payment for any series of Debt Securities, an office or agency
where Debt Securities of such series may be presented or surrendered for
payment, where Debt Securities of such series may be surrendered for transfer or
exchange and where notices and demands to or upon the Issuers in respect of the
Debt Securities of such series and
28
the Indenture may be served. The Issuers will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Issuers shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Issuers hereby appoint the
Trustee as their agent to receive all presentations, surrenders, notices and
demands.
The Issuers may also from time to time designate different or additional
offices or agencies to be maintained for such purposes (in or outside of such
Place of Payment), and may from time to time rescind any such designation;
provided, however, that no such designation or rescission shall in any manner
relieve the Issuers of their obligations described in the preceding paragraph.
The Issuers will give prompt written notice to the Trustee of any such
additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee. The
Issuers, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 7.08, a Trustee, so that there
shall at all times be a Trustee hereunder with respect to each series of Debt
Securities.
SECTION 4.04. Duties of Paying Agents, etc. (a) The Issuers shall cause
each paying agent, if any, other than the Trustee, to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section 4.04,
(i) that it will hold all sums held by it as such agent for the
payment of the principal of, and premium, if any, or interest on, the Debt
Securities of any series (whether such sums have been paid to it by the
Issuers or by any other obligor on the Debt Securities of such series) in
trust for the benefit of the Holders of the Debt Securities of such series;
(ii) that it will give the Trustee notice of any failure by the
Issuers (or by any other obligor on the Debt Securities of such series) to
make any payment of the principal of and premium, if any, or interest on,
the Debt Securities of such series when the same shall be due and payable;
and
(iii) that it will at any time during the continuance of an Event of
Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held by it as such agent.
(b) If either of the Issuers or any of their respective Subsidiaries shall
act as its own paying agent, it will, on or before 11:00 a.m., New York City
time, on each due date of the principal of, and premium, if any, or interest on,
the Debt Securities if any, of any series, set aside, segregate and hold in
trust for the benefit of the Holders of the Debt Securities of such series a sum
sufficient to pay such principal, premium, if any, or interest so becoming due.
The Issuers will promptly notify the Trustee of any failure by the Issuers or
its Subsidiaries to take
29
such action or the failure by any other obligor on such Debt Securities to make
any payment of the principal of, and premium, if any, or interest on, such Debt
Securities when the same shall be due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, either
of the Issuers may, at any time, for the purpose of obtaining a satisfaction and
discharge of the Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it or any paying agent, as required by
this Section 4.04, such sums to be held by the Trustee upon the same terms as
those upon which such sums were held by the Issuers or such paying agent.
(d) Whenever the Issuers shall have one or more paying agents with respect
to any series of Debt Securities, they will, prior to 11:00 a.m., New York City
time, on each due date of the principal of, and premium, if any, or interest on,
any Debt Securities of such series, deposit with any such paying agent a sum
sufficient to pay the principal, premium or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled thereto, and (unless
any such paying agent is the Trustee) the Issuers will promptly notify the
Trustee of their action or failure so to act.
(e) Anything in this Section 4.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.04 is subject to
the provisions of Section 11.02.
(f) Unless and until otherwise determined by the Issuers in Board
Resolutions or pursuant to a supplemental Indenture, the Trustee will act as
paying agent under the Indenture. The Issuers may designate a substitute paying
agent without prior notice to the Holders of Debt Securities.
SECTION 4.05. Statement by Officers as to Default. The Issuers will deliver
to the Trustee, on or before a date not more than four months after the end of
each fiscal year of the Issuers (currently ending on December 31 of each year)
ending after the date hereof, an Officers' Certificate stating, as to each
officer signing such certificate, one of whom shall be the principal executive,
financial or accounting officer of each Issuer (for purposes of compliance with
Section 314(a)(4) of the Trust Indenture Act), that (i) in the course of his
performance of his duties as an officer of the Managing General Partner or PAA
Finance, as applicable, he would normally have knowledge of any Default, (ii)
whether or not to the best of his knowledge any Default occurred during such
year and (iii) if to the best of his knowledge the Partnership or PAA Finance,
as applicable, is in Default, specifying all such Defaults and what action the
Partnership or PAA Finance, as applicable, is taking or proposes to take with
respect thereto.
SECTION 4.06. Further Instruments and Acts. The Issuers will, upon request
of the Trustee, execute and deliver such further instruments and do such further
acts as may reasonably be necessary or proper to carry out more effectually the
purposes of the Indenture.
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SECTION 4.07. Corporate, Partnership or Limited Liability Company
Existence. Subject to Article X, the Issuers shall do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate,
partnership, limited liability company or unlimited liability company existence
and related rights and franchises (charges and statutory) of the Partnership and
each of its Subsidiaries; provided, however, that the Partnership shall not be
required to preserve any such right or franchise for the corporate, partnership,
limited liability company or unlimited liability company existence of any such
Subsidiary if the Managing General Partner shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Partnership
and its Subsidiaries as a whole and that the loss thereof would not reasonably
be expected to have a material adverse effect on the ability of the Issuers or
any obligor on the Debt Securities of any series to perform their obligations
hereunder; and provided, further, however, that the foregoing shall not prohibit
a sale, transfer or conveyance of a Subsidiary of the Partnership or any of its
assets in compliance with the terms of the Indenture.
SECTION 4.08. Maintenance of Properties. The Partnership shall cause all
material properties owned by the Partnership or any of its Subsidiaries or used
or held for use in the conduct of its business or the business of any of its
Subsidiaries to be maintained and kept in good condition, repair and working
order (ordinary wear and tear excepted) and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the reasonable
judgment of the Partnership may be consistent with sound business practice and
necessary so that the business carried on in connection therewith may be
properly conducted at all times; provided, however, that nothing in this Section
shall prevent the Partnership from discontinuing the maintenance of any of such
properties if such discontinuance is, in the reasonable judgment of the Managing
General Partner, desirable in the conduct of its business or the business of any
of its Subsidiaries and not reasonably expected to have a material adverse
effect on the ability of the Issuers or any obligor on the Debt Securities of
any series to perform their obligations hereunder.
SECTION 4.09. Payment of Taxes and Other Claims. The Partnership shall pay
or discharge or cause to be paid or discharged, on or before the date the same
shall become due and payable, (a) all taxes, assessments and governmental
charges levied or imposed upon the Partnership or any of its Subsidiaries or
otherwise assessed or upon the income, profits or property of the Partnership or
any of its Subsidiaries if failure to pay or discharge the same could reasonably
be expected to have a material adverse effect on the ability of the Issuers or
any obligor on the Debt Securities of any series to perform their obligations
hereunder and (b) all lawful claims for labor, materials and supplies, which, if
unpaid, would by law become a Lien upon the property of the Partnership or any
of its Subsidiaries, except for any Lien permitted to be incurred under the
terms of the Indenture, if failure to pay or discharge the same could reasonably
be expected to have a material adverse effect on the ability of the Issuers or
any obligor on the Debt Securities of any series to perform their obligations
hereunder; provided, however, that the Partnership shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or
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validity is being contested in good faith by appropriate proceedings properly
instituted and diligently conducted and in respect of which appropriate reserves
(in the good faith judgment of the Managing General Partner) are being
maintained in accordance with GAAP.
SECTION 4.10. Calculation of Original Issue Discount. The Issuers shall
file with the Trustee promptly at the end of each calendar year (i) a written
notice specifying the amount of original issue discount (including daily rates
and accrual periods) accrued on Outstanding Original Issue Discount Debt
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the Code.
SECTION 4.11. Stay, Extension and Usury Laws. Each of the Issuers covenants
(to the extent that it may lawfully do so) that it shall not at any time insist
upon, plead or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of the
Indenture; and each of the Issuers hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
ARTICLE V
Holders' Lists and Reports
by the Issuers and the Trustee
SECTION 5.01. Issuers to Furnish Trustee Information as to Names and
Addresses of Holders; Preservation of Information. The Issuers covenant and
agree that they will furnish or cause to be furnished to the Trustee with
respect to the Registered Securities of each series:
(a) not more than 15 days after each record date with respect to the
payment of interest, if any, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Registered Holders as
of such record date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Issuers of any such request, a list as of
a date not more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee shall be the Registrar, such
lists shall not be required to be furnished.
The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders (1)
contained in the most recent list
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furnished to it as provided in this Section 5.01 or (2) received by it in the
capacity of paying agent or Registrar (if so acting) hereunder.
The Trustee may destroy any list furnished to it as provided in this
Section 5.01 upon receipt of a new list so furnished.
SECTION 5.02. Communications to Holders; Meetings of Holders. (a) Holders
may communicate pursuant to Section 312(b) of the Trust Indenture Act with other
Holders with respect to their rights under the Indenture or the Debt Securities.
The Issuers, the Trustee, the Registrar and anyone else shall have the
protection of Section 312(c) of the Trust Indenture Act.
(b) A meeting of the Holders of Debt Securities of any or all series may be
called at any time and from time to time pursuant to this Section 5.02 to make,
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided herein to be made, given or taken by Holders of
Debt Securities of such series.
(c) The Trustee may at any time call a meeting of Holders of Debt
Securities of any series for any purpose specified herein to be held at such
time and at such place in Houston, Texas, in The Borough of Manhattan, The City
of New York or in any other location, as the Trustee shall determine. Notice of
every meeting of Holders of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given not less than 20 nor more than 180 days prior to the
date fixed for the meeting.
(d) In case at any time the Issuers, pursuant to Board Resolutions, or the
Holders of at least 10% in aggregate principal amount of the outstanding Debt
Securities of any series, shall have requested the Trustee for any such series
to call a meeting of the Holders of Debt Securities of such series for any
purpose specified herein, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 30 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Issuers or the Holders of such series in
the amount specified above, as the case may be, may determine the time and the
place in Houston, Texas, in The Borough of Manhattan, The City of New York, or
in any other location, for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in paragraph (c) of this Section
5.02.
SECTION 5.03. Reports by Issuers. (a) Notwithstanding that the Partnership
may not be required to remain subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act, the Partnership shall file with the Commission
and provide to the Trustee and the Holders of Debt Securities the annual reports
and the information, documents and other reports that are specified in Sections
13 and 15(d) of the Exchange Act, and, with respect to the annual consolidated
financial statements only, a report thereon by the Issuers' independent
auditors; provided, however, that the Partnership shall not be so obligated to
file such information, documents and reports with the Commission if the
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Commission does not permit such filings. The Issuers shall comply with the other
provisions of Section 314(a) of the Trust Indenture Act.
(b) The Issuers covenant and agree, and any obligor hereunder shall
covenant and agree, to file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by said Commission,
such additional information, documents, and reports with respect to compliance
by the Issuers or such obligor, as the case may be, with the conditions and
covenants provided for in the Indenture as may be required from time to time by
such rules and regulations.
(c) 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 notice of any information contained therein or determinable from
information contained therein, including the Issuers' compliance with any of
their covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates).
SECTION 5.04. Reports by Trustee. The Trustee shall transmit to Holders
such reports concerning the Trustee and its actions under the Indenture as may
be required pursuant to the Trust Indenture Act at the time and in the manner
provided pursuant thereto.
Reports pursuant to this Section 5.04 shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of such
Holders appear in the Debt Security Register; and
(2) except in the cases of reports under Section 313(b)(2) of the
Trust Indenture Act, to each holder of a Debt Security of any series whose
name and address appear in the information preserved at the time by the
Trustee in accordance with Section 5.02.
A copy of each report at the time of its mailing to Holders shall be filed
with the Commission and each stock exchange (if any) on which the Debt
Securities of any series are listed. The Issuers agree to notify promptly the
Trustee whenever the Debt Securities of any series become listed on any stock
exchange and of any delisting thereof.
SECTION 5.05. Record Dates for Action by Holders. If the Issuers shall
solicit from the Holders of Debt Securities of any series any action (including
the making of any demand or request, the giving of any direction, notice,
consent or waiver or the taking of any other action), the Issuers may, at their
option, by Board Resolutions, fix in advance a record date for the determination
of Holders of Debt Securities entitled to take such action, but the Issuers
shall have no obligation to do so. Any such record date shall be fixed at the
Issuers' discretion. If such a record date is fixed, such action may be sought
or given before or after the record date, but only the Holders of Debt
Securities of record at the close of business on such record date shall be
deemed to be Holders of Debt Securities for the purpose of determining whether
Holders of the requisite proportion of Debt Securities of such series
34
Outstanding have authorized or agreed or consented to such action, and for that
purpose the Debt Securities of such series Outstanding shall be computed as of
such record date.
ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
SECTION 6.01. Events of Default. If any one or more of the following shall
have occurred and be continuing with respect to Debt Securities of any series
(each of the following, an "Event of Default"):
(a) the Issuers Default for a period of 60 days in the payment when
due of interest on any Debt Securities of that series; or
(b) the Issuers default in the payment when due of principal of or
premium, if any, on any Debt Securities of that series at maturity, upon
redemption or otherwise; or
(c) default in the payment of any sinking fund payment with respect to
any Debt Securities of that series as and when the same shall become due
and payable; or
(d) failure on the part of the Issuers to comply with Article X; or
(e) failure by the Issuers for 30 days after notice to comply to duly
observe or perform any other of the covenants or agreements on the part of
the Issuers in the Debt Securities of that series in any Board Resolution
authorizing the issuance of that series of Debt Securities, in the
Indenture with respect to such series or in any supplemental Indenture with
respect to such series (other than a covenant a default in the performance
of which is elsewhere in this Section 6.01 specifically dealt with); or
(f) pursuant to or within the meaning of Bankruptcy Law, an Issuer
commences a voluntary case, consents to the entry of an order for relief
against it in an involuntary case, consents to the appointment of a
custodian of it or for all or substantially all of its property, makes a
general assignment for the benefit of its creditors, or generally is not
paying its debts as they become due; or
(g) (i) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that is for relief against an Issuer in an
involuntary case, appoints a custodian of an Issuer, or orders the
liquidation of an Issuer and (ii) such order or decree remains unstayed and
in effect for 60 consecutive days; or
(h) any other Event of Default provided under the terms of the Debt
Securities of that series;
then and in each and every case that an Event of Default with respect to Debt
Securities of that series at the time outstanding occurs and is continuing,
either the Trustee or the Holders of at least 25% in aggregate principal amount
of the Debt Securities of that series, may declare the principal of (or, if the
Debt Securities of that series are Original Issue Discount Debt Securities,
35
such portion of the principal amount as may be specified in the terms of that
series) and interest on all the Debt Securities of that series to be due and
payable immediately.
The Holders of a majority in principal amount of the Debt Securities of a
particular series by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
already rendered and if all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due solely because of
acceleration. Upon any such rescission, the parties hereto shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the parties hereto shall continue as though no proceeding
had been taken.
In case the Trustee or any Holder shall have proceeded to enforce any right
under the Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or such Holder, then and in
every such case the parties hereto shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the parties hereto shall continue as though no such proceeding had been taken.
The foregoing Events of Default shall constitute Events of Default whatever
the reason for any such Event of Default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
The Issuers shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which with the giving of notice and the lapse of time would become an
Event of Default under clause (c), (d), (e), (f), (g) or (h), its status and
what action the Issuers are taking or propose to take with respect thereto.
SECTION 6.02. Collection of Indebtedness by Trustee, etc. If an Event of
Default occurs and is continuing, the Trustee, in its own name and as trustee of
an express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and unpaid
or enforce the performance of any provision of the Debt Securities of the
affected series or the Indenture, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such judgment or
final decree against the Issuers or any other obligor upon the Debt Securities
of such series (and collect in the manner provided by law out of the property of
the Issuers or any other obligor upon the Debt Securities of such series
wherever situated the moneys adjudged or decreed to be payable).
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of either of the Issuers or any other obligor upon the Debt
Securities of any series under Title 11 of the United States Code or any other
Federal or State bankruptcy, insolvency or similar law, or in case a receiver,
trustee or other similar official shall have been appointed for its property, or
in case of any other similar judicial proceedings relative to either of the
Issuers or any other obligor upon the Debt Securities of any series, its
creditors or its property, the Trustee, irrespective of whether the principal of
Debt Securities of any series shall then be due and
36
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 6.02, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal, premium, if any, and interest (or, if the Debt Securities
of such series are Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms of such series) owing and
unpaid in respect of the Debt Securities of such series, and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for reasonable compensation to the Trustee,
its agents, attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee except as a result
of its negligence or bad faith) and of the Holders thereof allowed in any such
judicial proceedings relative to either of the Issuers, or any other obligor
upon the Debt Securities of such series, its creditors or its property, and to
collect and receive any moneys or other property payable or deliverable on any
such claims, and to distribute all amounts received with respect to the claims
of such Holders and of the Trustee on their behalf, and any receiver, assignee
or trustee in bankruptcy or reorganization is hereby authorized by each of such
Holders to make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to such Holders, to pay to the
Trustee such amount as shall be sufficient to cover reasonable compensation to
the Trustee, its agents, attorneys and counsel, and all other reasonable
expenses and liabilities incurred, and all advances made, by the Trustee except
as a result of its negligence or bad faith.
All rights of action and of asserting claims under the Indenture, or under
any of the Debt Securities, of any series, may be enforced by the Trustee
without the possession of any such Debt Securities or the production thereof in
any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment (except for any
amounts payable to the Trustee pursuant to Section 7.06) shall be for the
ratable benefit of the Holders of all the Debt Securities in respect of which
such action was taken.
In case of an Event of Default hereunder the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by the Indenture by such
appropriate judicial proceedings as the Trustee shall deem necessary to protect
and enforce any of such rights, either at law or in equity or in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement
contained in the Indenture or in aid of the exercise of any power granted in the
Indenture, or to enforce any other legal or equitable right vested in the
Trustee by the Indenture or by law.
SECTION 6.03. Application of Moneys Collected by Trustee. Any moneys or
other property collected by the Trustee pursuant to Section 6.02 with respect to
Debt Securities of any series shall be applied, in the order following, at the
date or dates fixed by the Trustee for the distribution of such moneys or other
property, upon presentation of the several Debt Securities of such series in
respect of which moneys or other property have been collected, and the notation
thereon of the payment, if only partially paid, and upon surrender thereof if
fully paid:
37
First: To the payment of all money due the Trustee pursuant to Section
7.06;
Second: In case the principal of the Outstanding Debt Securities in
respect of which such moneys have been collected shall not have become due,
to the payment of interest on the Debt Securities of such series in the
order of the maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the Trustee) upon
the overdue installments of interest at the rate or Yield to Maturity (in
the case of Original Issue Discount Debt Securities) specified in the Debt
Securities of such series, such payments to be made ratably to the Persons
entitled thereto, without discrimination or preference;
Third: In case the principal of the Outstanding Debt Securities in
respect of which such moneys have been collected shall have become due, by
declaration or otherwise, to the payment of the whole amount then owing and
unpaid upon the Debt Securities of such series for principal and premium,
if any, and interest, with interest on the overdue principal and premium,
if any, and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the rate or Yield to
Maturity (in the case of Original Issue Discount Debt Securities) specified
in the Debt Securities of such series; and, in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Debt Securities of such series, then to the payment of such principal and
premium, if any, and interest, without preference or priority of principal
and premium, if any, over interest, or of interest over principal and
premium, if any, or of any installment of interest over any other
installment of interest, or of any Debt Security of such series over any
Debt Security of such series, ratably to the aggregate of such principal
and premium, if any, and interest; and
Fourth: The remainder, if any, shall be paid to the Issuers, their
successors or assigns, or as a court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.03. At least 15 days before such record date,
the Issuers shall mail to each Holder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
SECTION 6.04. Limitation on Suits by Holders. No Holder of any Debt
Security of any series shall have any right by virtue or by availing of any
provision of the Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise, upon or under or with respect to the
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of an Event of Default with respect to Debt Securities of that
same series and of the continuance thereof and unless the Holders of not less
than 25% in aggregate principal amount of the Outstanding Debt Securities of
that series shall have made written request upon the Trustee to institute such
action or proceedings in respect of such Event of Default in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer
38
of indemnity shall have failed to institute any such action or proceedings and
no direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 6.06; it being understood and intended, and being
expressly covenanted by the Holder of every Debt Security with every other
Holder and the Trustee, that no one or more Holders shall have any right in any
manner whatever by virtue or by availing of any provision of the Indenture to
affect, disturb or prejudice the rights of any Holders, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to enforce any
right under the Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all such Holders. For the protection and
enforcement of the provisions of this Section 6.04, each and every Holder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Notwithstanding any other provision in the Indenture, however, the right of
any Holder of any Debt Security to receive payment of the principal of, and
premium, if any, and (subject to Section 2.12) interest on, such Debt Security
on or after the respective due dates expressed in such Debt Security, and to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or effected without the consent of such
Holder.
SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights
Not a Waiver of Default. All powers and remedies given by this Article VI to the
Trustee or to the Holders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the Holders, by judicial proceedings or otherwise,
to enforce the performance or observance of the covenants and agreements
contained in the Indenture, and no delay or omission of the Trustee or of any
Holder to exercise any right or power accruing upon any Default occurring and
continuing as aforesaid, shall impair any such right or power, or shall be
construed to be a waiver of any such Default or an acquiescence therein; and,
subject to the provisions of Section 6.04, every power and remedy given by this
Article VI or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as shall be deemed expedient, by the Trustee or by the
Holders.
SECTION 6.06. Rights of Holders of Majority in Principal Amount of Debt
Securities to Direct Trustee and to Waive Default. The Holders of a majority in
aggregate principal amount of the Debt Securities of any series at the time
Outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Debt Securities
of such series; provided, however, that such direction shall not be otherwise
than in accordance with law and the provisions of the Indenture, and that
subject to the provisions of Section 7.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee being advised by counsel
shall determine that the action so directed may not lawfully be taken, or if the
Trustee shall by a Responsible Officer or officers determine that the action so
directed would involve it in personal liability or would be prejudicial to
Holders of Debt Securities of such series not taking part in such direction; and
provided further, however, that nothing in the Indenture contained shall impair
the right of the Trustee to take any action deemed proper by the Trustee and
which is not inconsistent with such direction
39
by such Holders. Prior to the acceleration of the maturity of the Debt
Securities of any series, as provided in Section 6.01, the Holders of a majority
in aggregate principal amount of the Debt Securities of that series at the time
Outstanding by notice to the Trustee may on behalf of the Holders of all the
Debt Securities of that series waive any past Default or Event of Default and
its consequences for that series specified in the terms thereof as contemplated
by Section 2.03, except (i) a continuing Default or an Event of Default in the
payment of the principal of, and premium, if any, or interest on, any of the
Debt Securities and (ii) a Default in respect of a provision that under Section
9.02 cannot be amended, supplemented or waived without the consent of each
Holder affected thereby. In case of any such waiver, such Default shall cease to
exist, any Event of Default arising therefrom shall be deemed to have been cured
for every purpose of the Indenture, and the Issuers, the Trustee and the Holders
of the Debt Securities of that series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but May
Withhold Such Notice in Certain Circumstances. The Trustee shall, within 90 days
after the occurrence of a Default known to it with respect to a series of Debt
Securities give to the Holders thereof, in the manner provided in Section 12.03,
notice of all Defaults with respect to such series known to the Trustee, unless
such Defaults shall have been cured or waived before the giving of such notice;
provided that, except in the case of Default in the payment of the principal of,
or premium, if any, or interest on, any of the Debt Securities of such series or
in the making of any sinking fund payment with respect to the Debt Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, an executive committee of the board of directors
or trust committee of Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders
thereof.
SECTION 6.08. Requirement of an Undertaking To Pay Costs in Certain Suits
under the Indenture or Against the Trustee. All parties to the Indenture agree,
and each Holder of any Debt Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under the Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit in the manner and to the extent provided in the Trust Indenture Act, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section 6.08 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than ten percent in
principal amount of the Outstanding Debt Securities of that series or to any
suit instituted by any Holder for the enforcement of the payment of the
principal of, or premium, if any, or interest on, any Debt Security on or after
the due date for such payment expressed in such Debt Security.
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ARTICLE VII
Concerning the Trustee
SECTION 7.01. Certain Duties and Responsibilities. The Trustee, prior to
the occurrence of an Event of Default and after the curing or waiving of all
Events of Default which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in the Indenture. In case an
Event of Default has occurred (which has not been cured or waived), the Trustee
shall exercise such of the rights and powers vested in it by the Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his own affairs.
No provision of the Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(a) this subsection shall not be construed to limit the effect of the
first paragraph of this Section 7.01;
(b) prior to the occurrence of an Event of Default with respect to the
Debt Securities of a series and after the curing or waiving of all Events
of Default with respect to such series which may have occurred:
(1) the duties and obligations of the Trustee with respect to
Debt Securities of any series shall be determined solely by the
express provisions of the Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations with
respect to such series as are specifically set forth in the Indenture,
and no implied covenants or obligations with respect to such series
shall be read into the Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to
the requirements of the Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of the Indenture;
(c) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(d) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it with respect to Debt Securities of any series
in good faith in accordance with the direction of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Debt
Securities of that series relating to the time, method and place of
41
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under the
Indenture with respect to Debt Securities of such series.
None of the provisions of the Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any personal financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Whether or not therein expressly so provided, every provision of the
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 7.02. Certain Rights of Trustee. Except as otherwise provided in
Section 7.01:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note or other paper or document (whether
in its original or facsimile form) believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuers mentioned
herein shall be sufficiently evidenced by an Issuer Order (unless other
evidence in respect thereof be herein specifically prescribed); and any
Board Resolution may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of each of the
Managing General Partner and PAA Finance;
(c) the Trustee may consult with counsel of its own selection, and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by the Indenture at the request, order or
direction of any of the Holders of Debt Securities of any series pursuant
to the provisions of the Indenture, unless such Holders shall have offered
to the Trustee security or indemnity reasonably satisfactory to it against
the costs, expenses and liabilities which may be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and reasonably believed by it to be authorized or within
the discretion or rights or powers conferred upon it by the Indenture;
(f) prior to the occurrence of an Event of Default known to the
Trustee and after the curing of all Events of Default which may have
occurred, the Trustee shall not
42
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, approval or other paper or document,
unless requested in writing to do so by the Holders of a majority in
aggregate principal amount of the then outstanding Debt Securities of a
series affected by such matter; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is not, in the opinion of the Trustee, reasonably assured to the Trustee by
the security afforded to it by the terms of the Indenture, the Trustee may
require indemnity reasonably satisfactory to it against such costs,
expenses or liabilities as a condition to so proceeding; the Trustee shall
be entitled to examine the books, records and premises of the Issuers
during ordinary business hours and for any purpose relevant to the
Indenture, personally or by an agent or attorney at the sole cost of the
Issuers and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due
care hereunder;
(h) if any property other than cash shall at any time be subject to a
Lien in favor of the Holders, the Trustee, if and to the extent authorized
by a receivership or bankruptcy court of competent jurisdiction or by the
supplemental instrument subjecting such property to such Lien, shall be
entitled to make advances for the purpose of preserving such property or of
discharging tax Liens or other prior Liens or encumbrances thereon; and
(i) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a Default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Debt Securities and the
Indenture; and
(j) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person
employed by the Trustee to act hereunder.
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in Debt
Securities. The recitals contained herein and in the Debt Securities (except the
Trustee's certificate of authentication) shall be taken as the statements of the
Issuers, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of
the Indenture or of the Debt Securities of any series, except that the Trustee
represents that it is duly authorized to execute and deliver the Indenture,
authenticate the Debt Securities and perform its obligations hereunder, and that
the statements made by it or to be
43
made by it in a Statement of Eligibility and Qualification on Form T-1 supplied
to the Issuers are true and accurate. The Trustee shall not be accountable for
the use or application by the Issuers of any of the Debt Securities or of the
proceeds thereof.
SECTION 7.04. Trustee, Paying Agent or Registrar May Own Debt Securities.
The Trustee or any paying agent or Registrar, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities and subject to the
provisions of the Trust Indenture Act relating to conflicts of interest and
preferential claims may otherwise deal with the Issuers with the same rights it
would have if it were not Trustee, paying agent or Registrar; provided, however,
that if the Trustee acquires any such conflicting interest and an Event of
Default or Default has occurred and is continuing, the Trustee must eliminate
such conflict within 90 days, apply to the Commission for permission to continue
as trustee or resign.
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust. Subject to
the provisions of Section 11.02, all moneys received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability for interest on
any moneys received by it hereunder. So long as no Event of Default of which the
Trustee has notice shall have occurred and be continuing, all interest allowed
on any such moneys shall be paid from time to time to the Issuers upon an Issuer
Order.
SECTION 7.06. Compensation and Reimbursement. The Issuers covenant and
agree to pay in Dollars to the Trustee from time to time, and the Trustee shall
be entitled to, reasonable compensation for all services rendered by it
hereunder (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and, except as otherwise
expressly provided herein, the Issuers will pay or reimburse in Dollars the
Trustee upon its request for all expenses, disbursements and advances incurred
or made by the Trustee in accordance with any of the provisions of the Indenture
(including the reasonable compensation and the expenses and disbursements of its
agents, attorneys and counsel and of all Persons not regularly in its employ)
except any such expense, disbursement or advances as may arise from its
negligence or bad faith. The Issuers also covenant to fully indemnify in Dollars
the Trustee and any predecessor Trustee for, and to hold it harmless against,
any and all loss, liability, claim, damage or expense incurred without
negligence or willful misconduct on the part of the Trustee, arising out of or
in connection with the acceptance or administration of this trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim of liability in connection with the exercise or performance of any of its
powers or duties hereunder. The obligations of the Issuers under this Section
7.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee
for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of the
Indenture. The Issuers and the Holders agree that such additional indebtedness
shall be secured by a Lien prior to that of the Debt Securities upon all
property and funds held or collected by the Trustee, as such, except funds held
in trust for the payment of principal of, and premium, if any, or interest on,
particular Debt Securities.
44
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(g) or (h) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency, reorganization or other similar
law.
SECTION 7.07. Right of Trustee to Rely on an Officers' Certificate Where No
Other Evidence Specifically Prescribed. Except as otherwise provided in Section
7.01, whenever in the administration of the provisions of the Indenture the
Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the provisions of
the Indenture upon the faith thereof.
SECTION 7.08. Separate Trustee; Replacement of Trustee. The Issuers may,
but need not, appoint a separate Trustee for any one or more series of Debt
Securities. The Trustee may resign with respect to one or more or all series of
Debt Securities at any time by giving notice to the Issuers. The Holders of a
majority in principal amount of the Debt Securities of a particular series may
remove the Trustee for such series and only such series by so notifying the
Trustee and may appoint a successor Trustee. The Issuers shall remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Issuers or by the Holders of a
majority in principal amount of the Debt Securities of a particular series and
such Holders do not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), the Issuers shall
promptly appoint a successor Trustee. No resignation or removal of the Trustee
and no appointment of a successor Trustee shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of this Section 7.08.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Issuers. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under the Indenture. The
successor Trustee shall mail a notice of its succession to
45
Holders of Debt Securities of each applicable series. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 60 days after the
retiring Trustee gives notice of resignation or is removed, the retiring Trustee
or the Holders of 25% in principal amount of the Debt Securities of any
applicable series may petition any court of competent jurisdiction for the
appointment of a successor Trustee for the Debt Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of Debt
Securities of any applicable series may petition at the expense of the Issuers
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee for the Debt Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this Section
7.08, the Issuers' obligations under Section 7.06 shall continue for the benefit
of the retiring Trustee.
In the case of the appointment hereunder of a separate or successor Trustee
with respect to the Debt Securities of one or more series, the Issuers, any
retiring Trustee and each successor or separate Trustee with respect to the Debt
Securities of any applicable series shall execute and deliver an Indenture
supplemental hereto (1) which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of any retiring Trustee with respect to the Debt Securities of any series as to
which any such retiring Trustee is not retiring shall continue to be vested in
such retiring Trustee and (2) that shall add to or change any of the provisions
of the Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental Indenture shall
constitute such Trustees co-trustees of the same trust and that each such
separate, retiring or successor Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association shall be the successor Trustee hereunder, provided that such Person
shall be otherwise qualified under Section 310(b) of the Trust Indenture Act and
eligible under this Article VII, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. As soon as
practicable, the successor Trustee shall mail a notice of its succession to the
Issuers and the Holders of the Debt Securities then Outstanding.
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by the
Indenture any of the Debt Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Debt Securities so
authenticated; and in case at that time any of the Debt Securities shall not
have been
46
authenticated, any successor to the Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Debt Securities or in the Indenture
provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all times
satisfy the requirements of Section 310(a) of the Trust Indenture Act. The
Trustee shall have a combined capital and surplus of at least $50,000,000, as
set forth in its most recently published annual report of condition. No obligor
upon the Debt Securities of a particular series or Person directly or indirectly
controlling, controlled by or under common control with such obligor shall serve
as Trustee upon the Debt Securities of such series. The Trustee shall comply
with Section 310(b) of the Trust Indenture Act; provided, however, that there
shall be excluded from the operation of Section 310(b)(1) of the Trust Indenture
Act the Indenture or any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Issuers are
outstanding if the requirements for such exclusion set forth in Section
310(b)(1) of the Trust Indenture Act are met.
SECTION 7.11. Preferential Collection of Claims Against Issuers. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who had resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
SECTION 7.12. Compliance with Tax Laws. The Trustee hereby agrees to comply
with all U.S. Federal income tax information reporting and withholding
requirements applicable to it with respect to payments of principal, premium (if
any) and interest on the Debt Securities, whether acting as Trustee, Security
Registrar, paying agent or otherwise with respect to the Debt Securities.
ARTICLE VIII
Concerning the Holders
SECTION 8.01. Evidence of Action by Holders. Whenever in the Indenture it
is provided that the Holders of a specified percentage in aggregate principal
amount of the Debt Securities of any or all series may take action (including
the making of any demand or request, the giving of any direction, notice,
consent or waiver or the taking of any other action) the fact that at the time
of taking any such action the Holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by Holders in person or by agent or proxy appointed in
writing, (b) by the record of the Holders voting in favor thereof at any meeting
of Holders duly called and held in accordance with the provisions of Section
5.02, (c) by a combination of such instrument or instruments and any such record
of such a meeting of Holders or (d) in the case of
47
Debt Securities evidenced by a Global Security, by any electronic transmission
or other message, whether or not in written format, that complies with the
Depositary's applicable procedures.
SECTION 8.02. Proof of Execution of Instruments and of Holding of Debt
Securities. Subject to the provisions of Sections 7.01, 7.02 and 12.09, proof of
the execution of any instrument by a Holder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
The ownership of Registered Securities of any series shall be proved by the
Debt Security Register or by a certificate of the Registrar for such series.
The Trustee may require such additional proof of any matter referred to in
this Section 8.02 as it shall deem necessary.
SECTION 8.03. Who May Be Deemed Owner of Debt Securities. Prior to due
presentment for registration of transfer of any Registered Security, the
Issuers, the Trustee, any paying agent and any Registrar may deem and treat the
Person in whose name any Registered Security shall be registered upon the books
of the Issuers as the absolute owner of such Registered Security (whether or not
such Registered Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the principal of and premium, if any, and (subject to Section
2.12) interest on such Registered Security and for all other purposes, and
neither the Issuers nor the Trustee nor any paying agent nor any Registrar shall
be affected by any notice to the contrary; and all such payments so made to any
such Holder for the time being, or upon his order, shall be valid and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Registered Security.
SECTION 8.04. Instruments Executed by Holders Bind Future Holders. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Debt Securities of any series specified in the
Indenture in connection with such action and subject to the following paragraph,
any Holder of a Debt Security which is shown by the evidence to be included in
the Debt Securities the Holders of which have consented to such action may, by
filing written notice with the Trustee at its Corporate Trust Office of the
Trustee and upon proof of holding as provided in Section 8.02, revoke such
action so far as concerns such Debt Security. Except as aforesaid any such
action taken by the Holder of any Debt Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Debt Security
and of any Debt Security issued upon transfer thereof or in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon such Debt Security or such other Debt Securities. Any
action taken by the Holders of the percentage in aggregate principal amount of
the Debt Securities of any series specified in the Indenture in connection with
such action shall be conclusively binding upon the Issuers, the Trustee and the
Holders of all the Debt Securities of such series.
48
The Issuers may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders of Registered Securities entitled to give
their consent or take any other action required or permitted to be taken
pursuant to the Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders of Registered
Securities at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders of Registered Securities after such record date. No such
consent shall be valid or effective for more than 120 days after such record
date unless the written consent of the Holders of the percentage in aggregate
principal amount of the Debt Securities of such series specified in the
Indenture shall have been received within such 120-day period.
ARTICLE IX
Amendment, Supplement and Waiver
SECTION 9.01. Without Consent of Holders of Debt Securities. The Issuers
and the Trustee may from time to time and at any time, without the consent of
Holders, enter into an Indenture or Indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as in force at the date of
the execution thereof) for one or more of the following purposes:
(a) to cure any ambiguity, defect or inconsistency contained herein,
in any supplemental Indenture or in the Debt Securities of such series;
(b) to provide for uncertificated Debt Securities in addition to or in
place of certificated Debt Securities; provided, however, that the
uncertificated Debt Securities are issued in registered form for purposes
of Section 163(f) of the Code, or in a manner such that the uncertificated
Debt Securities are described in Section 163(f)(2)(B) of the Code;
(c) to provide for the assumption of an Issuer's obligations to
Holders pursuant to Article X;
(d) to add guarantors with respect to the Debt Securities as parties
to the Indenture or to release guarantors in accordance with the provisions
of any supplemental Indenture;
(e) to make any changes that would provide any additional rights or
benefits to the Holders of the Debt Securities or that do not, taken as a
whole, adversely affect the legal rights hereunder of any Holder;
(f) to comply with the requirements of the Commission to permit the
qualification of the Indenture or any Indenture supplemental hereto under
the Trust Indenture Act as then in effect, except that nothing herein
contained shall permit or authorize the inclusion in any Indenture
supplemental hereto of the provisions referred to in Section 316(a)(2) of
the Trust Indenture Act;
49
(g) to evidence or provide for the acceptance of appointment hereunder
by a successor or separate Trustee with respect to the Debt Securities of
one or more series and to add to or change any of the provisions of the
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee;
(h) to add any additional Events of Default;
(i) to secure the Debt Securities and/or any guarantee with respect to
any Debt Securities; and
(j) to establish the form or terms of the Debt Securities in
accordance with Section 2.01 or 2.03.
The Trustee is hereby authorized to join with the Issuers and any
guarantors with respect to any Debt Securities in the execution of any such
supplemental Indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental Indenture
which affects the Trustee's own rights, duties or immunities under the Indenture
or otherwise.
Any supplemental Indenture authorized by the provisions of this Section
9.01 may be executed by the Issuers, any guarantors with respect to any debt
Securities and the Trustee without the consent of the Holders of any of the Debt
Securities at the time outstanding, notwithstanding any of the provisions of
Section 9.02.
After an amendment under this Section 9.01 becomes effective, the Issuers
shall mail to Holders of Debt Securities of each series affected thereby a
notice briefly describing such amendment. The failure to give such notice to all
such Holders, or any defect therein, shall not impair or affect the validity of
an amendment under this Section 9.01.
SECTION 9.02. With Consent of Holders of Debt Securities. Without notice to
any Holder but with the consent (evidenced as provided in Section 8.01) of the
Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of each series affected by such supplemental Indenture, (a) the
Issuers, when authorized by Board Resolutions, any guarantors with respect to
any Debt Securities and the Trustee may from time to time and at any time enter
into an Indenture or Indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as in force at the date of execution
thereof) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Indenture or of any supplemental
Indenture or of modifying in any manner the rights of the Holders of the Debt
Securities of such series, and (b) subject to Sections 6.04 and 6.06, any
existing Default or Event of Default or compliance with any provision of the
Indenture or the Debt Securities of such series may be waived; provided, that no
such supplemental Indenture or waiver, without the consent of the Holders of
each Debt Security so affected, shall (i) reduce the percentage in principal
amount of Debt Securities of any series whose Holders must consent to an
amendment, supplement or waiver; (ii) reduce the principal of or change the
Stated Maturity of any Debt Security; (iii) reduce or waive the premium payable
upon the
50
redemption of any Debt Security or alter or waive any provisions by which any
Debt Security may or shall be redeemed in accordance with Article III (other
than provisions requiring the repurchase of the Debt Securities of such series
if so permitted by the Board Resolutions or supplemental Indenture establishing
the terms of such series); (iv) reduce the rate of or change the time for
payment of interest on any Debt Security; (v) waive a Default or an Event of
Default in the payment of principal of, or premium, if any, or interest on a
Debt Security except for a rescission of an acceleration of such Debt Securities
by the Holders of at least a majority in aggregate principal amount of such Debt
Securities and a waiver of the payment default that resulted from such
acceleration; (vi) release any security that may have been granted in respect of
the Debt Securities; (vii) make any Debt Security payable in Currency other than
that stated in the Debt Security; (viii) make any change in the provisions of
the Indenture relating to waivers of past Defaults or the rights of Holders to
receive payments of principal of or premium, if any, or interest on the Debt
Securities; (ix) waive a redemption payment with respect to any Debt Security
(other than a payment required by a covenant requiring the repurchase of the
Debt Securities of such series if so permitted by the Board Resolutions or
supplemental Indenture establishing the terms of such Series); (x) except as
otherwise permitted under the Indenture, with respect to Debt Securities that
are guaranteed, release any guarantor from its obligations under the Indenture
or under its guarantee or change any guarantee in any manner that would
adversely affect the rights of Holders of such Debt Securities; or (xi) make any
change in Section 6.06 or this Section 9.02.
A supplemental Indenture which changes or eliminates any covenant or other
provision of the Indenture which has been expressly included solely for the
benefit of one or more particular series of Debt Securities or which modifies
the rights of the Holders of Debt Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under the
Indenture of the Holders of Debt Securities of any other series.
Upon the request of the Issuers, accompanied by copies of Board Resolutions
authorizing the execution of any such supplemental Indenture, and upon the
filing with the Trustee of evidence of the consent of Holders as aforesaid, the
Trustee shall join with the Issuers in the execution of such supplemental
Indenture unless such supplemental Indenture affects the Trustee's own rights,
duties or immunities under the Indenture or otherwise, in which case the Trustee
may in its discretion but shall not be obligated to enter into such supplemental
Indenture.
It shall not be necessary for the consent of the Holders under this Section
9.02 to approve the particular form of any proposed supplemental Indenture, but
it shall be sufficient if such consent shall approve the substance thereof.
After an amendment or waiver under this Section 9.02 becomes effective, the
Issuers shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment or waiver. The failure to give such
notice to all such Holders, or any defect therein, shall not impair or affect
the validity of an amendment or waiver under this Section 9.02.
SECTION 9.03. Effect of Supplemental Indentures.
51
Upon the execution of any supplemental Indenture pursuant to the provisions of
this Article IX, the Indenture shall be and be deemed to be modified and amended
in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under the Indenture of the Trustee, the
Issuers and the Holders shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental Indenture shall be and be
deemed to be part of the terms and conditions of the Indenture for any and all
purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental Indenture complies with the provisions of
this Article IX.
SECTION 9.04. Debt Securities May Bear Notation of Changes by Supplemental
Indentures. Debt Securities of any series authenticated and delivered after the
execution of any supplemental Indenture pursuant to the provisions of this
Article IX may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
Indenture. New Debt Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors of the Managing General
Partner and PAA Finance, to any modification of the Indenture contained in any
such supplemental Indenture may be prepared and executed by the Issuers,
authenticated by the Trustee and delivered in exchange for the Debt Securities
of such series then outstanding. Failure to make the appropriate notation or to
issue a new Debt Security of such series shall not affect the validity of such
amendment.
ARTICLE X
Consolidation, Merger, Sale or Conveyance
SECTION 10.01. Consolidations and Mergers of the Issuers. Neither of the
Issuers may, directly or indirectly: (1) consolidate or merge with or into
another Person (whether or not such Issuer is the survivor); or (2) sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets, in one or more related transactions, to another
Person; unless:
(1) either (a) such Issuer is the surviving entity of such
transaction; or (b) the Person formed by or surviving any such
consolidation or merger (if other than such Issuer) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have
been made (the "Successor Company") is an entity organized or existing
under the laws of the United States, any state thereof or the District of
Columbia, provided that PAA Finance may not consolidate or merge with or
into any entity other than a corporation satisfying such requirement for so
long as the Partnership is not a corporation;
(2) the Successor Company assumes all the obligations of such Issuer
under the notes and the Indenture pursuant to agreements reasonably
satisfactory to the Trustee;
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(3) immediately after such transaction no Default or Event of Default
exists; and
(4) such Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger or
transfer and, if a supplemental Indenture is required, such supplemental
Indenture complies with the Indenture and all conditions precedent therein
relating to such transaction have been satisfied.
SECTION 10.02. Rights and Duties of Successor Company. In case of any
consolidation, merger, or disposition by or involving an Issuer in accordance
with Section 10.01, the Successor Company shall succeed to and be substituted
for such Issuer, with the same effect as if it had been named herein as the
party of the first part, and the Issuer shall be relieved of any further
obligation under the Indenture and the Debt Securities. The Successor Company
thereupon may cause to be signed, and may issue either in its own name or in the
name of such Issuer, any or all the Debt Securities issuable hereunder which
theretofore shall not have been signed by such Issuer and delivered to the
Trustee; and, upon the order of the Successor Company, instead of such Issuer,
and subject to all the terms, conditions and limitations in the Indenture
prescribed, the Trustee shall authenticate and shall deliver any Debt Securities
which previously shall have been signed and delivered by the officers of such
Issuer or its Managing General Partner, as the case may be, to the Trustee for
authentication, and any Debt Securities which the Successor Company thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All the
Debt Securities so issued shall in all respects have the same legal rank and
benefit under the Indenture as the Debt Securities theretofore or thereafter
issued in accordance with the terms of the Indenture as though all such Debt
Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger or disposition, such changes in
phraseology and form (but not in substance) may be made in the Debt Securities
appertaining thereto thereafter to be issued as may be appropriate.
ARTICLE XI
Satisfaction and Discharge of Indenture;
Unclaimed Moneys
SECTION 11.01. Satisfaction and Discharge; Application of Trust Money. The
Indenture shall upon the request of the Issuers cease to be of further effect
with respect to all Outstanding Debt Securities of any series (except as to (i)
surviving rights of registration of transfer or exchange of Debt Securities of
such series herein expressly provided for, (ii) the Issuers' obligations under
Section 7.06, and (iii) the Trustee's and each paying agent's obligations under
the last paragraph of this Section 11.01 and Section 11.02) and the Trustee, on
demand and at the expense of the Issuers, shall execute proper instruments
acknowledging satisfaction and discharge of the Indenture with respect to such
series, when:
(a) either:
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(i) all outstanding Debt Securities of such series therefore
authenticated and delivered (other than (A) Debt Securities which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.09 and (B) Debt Securities for whose payment
money has been deposited in trust with the Trustee or any paying agent
and thereafter repaid to either Issuer or discharged from such trust)
have been delivered to the Trustee for cancellation; or
(ii) all outstanding Debt Securities of such series not
theretofore delivered to the Trustee for cancellation
(A) have become due and payable by reason of the giving of a
notice of redemption or otherwise;
(B) shall become due and payable at their Stated Maturity
within one year; or
(C) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Issuers,
and the Issuers, in the case of clause (A), (B) or (C) above,
have irrevocably deposited or caused to be irrevocably deposited
with the Trustee as trust funds in trust for such purpose cash in
Dollars or U.S. Government Obligations, or a combination thereof,
in an amount sufficient (without consideration of any
reinvestment of interest and as certified by an independent
public accountant designated by the Partnership expressed in a
written certification thereof delivered to the Trustee) to pay
and discharge the entire indebtedness of such Debt Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and accrued and unpaid interest
to the date of such deposit (in the case of Debt Securities which
have become due and payable) or the Stated Maturity or redemption
date, as the case may be;
(b) the Issuers have paid or caused to be paid all other sums then due
and payable hereunder by them under the Indenture; and
(c) the Issuers have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of the
Indenture have been complied with.
In order to have money available on a payment date to pay principal (and
premium, if any, on) and interest on the Debt Securities, the U.S. Government
Obligations shall be payable as to principal (and premium, if any) or interest
at least one Business Day before such payment date in such amounts as shall
provide the necessary money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article XI. It shall apply the deposited
money and the money from U.S. Government Obligations through any paying agent
and in accordance with the Indenture to the payment of principal of, and
premium, if any, and interest on, the Debt Securities of the defeased
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series. Prior to the maturity of such series, the Trustee may, at the written
direction of the Issuers, invest such money in U.S. Government Obligations.
SECTION 11.02. Repayment to Issuers. The Trustee and any paying agent shall
promptly turn over to the Issuers upon request any excess money or securities
held by them at any time.
Subject to any applicable abandoned property law, the Trustee and any
paying agent shall pay to the Issuers upon request any money held by them for
the payment of principal, premium or interest that remains unclaimed for two
years, and, thereafter, Holders entitled to such money must look to the Issuers
for payment as general creditors.
SECTION 11.03. Indemnity for U.S. Government Obligations. The Issuers shall
pay and shall indemnify the Trustee and the Holders against any tax, fee or
other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
SECTION 11.04. Reinstatement. If the Trustee or any paying agent is unable
to apply any money or U.S. Government Obligations in accordance with this
Article XI by reason of any legal proceeding or by reason of any order or
judgment of any court or government authority enjoining, restraining or
otherwise prohibiting such application, the Issuers' obligations under the
Indenture and the Debt Securities of the defeased series shall be revived and
reinstated as though no deposit had occurred pursuant to this Article XI until
such time as the Trustee or any paying agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article XI.
ARTICLE XII
Miscellaneous Provisions
SECTION 12.01. Successors and Assigns of Issuers Bound by Indenture. All
the covenants, stipulations, promises and agreements contained in the Indenture
by or on behalf of the Issuers or the Trustee shall bind their respective
successors and assigns, whether so expressed or not.
SECTION 12.02. Acts of Board, Committee or Officer of Successor Company
Valid. Any act or proceeding by any provision of the Indenture authorized or
required to be done or performed by any Board of Directors, committee thereof or
officer of the Managing General Partner or PAA Finance, as applicable, shall and
may be done and performed with like force and effect by the like Board of
Directors, committee thereof or officer of any Successor Company.
SECTION 12.03. Required Notices or Demands.
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Except as otherwise expressly provided in the Indenture, any notice or demand
which by any provision of the Indenture is required or permitted to be given or
served by the Trustee or by the Holders to or on the Issuers shall be in writing
in the English language and may be given or served by being deposited postage
prepaid in a post office letter box in the United States addressed (until
another address is filed by the Issuers with the Trustee) as follows: Plains All
American Pipeline, L.P., 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000,
Attention: General Counsel. Except as otherwise expressly provided in the
Indenture, any notice, direction, request or demand by the Issuers or by any
Holder to or upon the Trustee shall be in writing in the English language and
may be given or made, for all purposes, by being deposited, postage prepaid, in
a post office letter box in the United States addressed to the Corporate Trust
Office of the Trustee initially at 00000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx,
00000, Attention: Corporate Trust Group. The Issuers or the Trustee by notice to
the other may designate additional or different addresses for subsequent notices
or communications.
Any notice required or permitted to a Registered Holder by the Issuers or
the Trustee pursuant to the provisions of the Indenture shall be in writing in
the English language and shall be deemed to be properly mailed by being
deposited postage prepaid in a post office letter box in the United States
addressed to such Holder at the address of such Holder as shown on the Debt
Security Register. Any report pursuant to Section 313 of the Trust Indenture Act
shall be transmitted in compliance with subsection (c) therein.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, then such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose thereunder.
Failure to mail a notice or communication to a Holder or any defect in it
or any defect in any notice by publication as to a Holder shall not affect the
sufficiency of such notice with respect to other Holders. If a notice or
communication is mailed or published in the manner provided above, it is
conclusively presumed duly given.
SECTION 12.04. Indenture and Debt Securities to Be Construed in Accordance
with the Laws of the State of New York. The Indenture and each Debt Security
shall be deemed to be New York contracts, and for all purposes shall be
construed in accordance with the laws of said State.
SECTION 12.05. Officers' Certificate and Opinion of Counsel to Be Furnished
upon Application or Demand by the Issuers. Upon any application or demand by the
Issuers to the Trustee to take any action under any of the provisions of the
Indenture, the Issuers shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in the Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such document is specifically required by any provision
of the Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
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Each certificate or opinion provided for in the Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in the Indenture shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition, (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 12.06. Payments Due on Legal Holidays. In any case where the date
of maturity of interest on or principal of and premium, if any, on the Debt
Securities of a series or the date fixed for redemption or repayment of any Debt
Security or the making of any sinking fund payment shall not be a business day
at any Place of Payment for the Debt Securities of such series, then payment of
interest or principal and premium, if any, or the making of such sinking fund
payment need not be made on such date at such Place of Payment, but may be made
on the next succeeding business day at such Place of Payment with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date. If a record date is
not a business day, the record date shall not be affected.
SECTION 12.07. Provisions Required by Trust Indenture Act to Control. If
and to the extent that any provision of the Indenture limits, qualifies or
conflicts with another provision included in the Indenture which is required to
be included in the Indenture by any of Sections 310 to 318, inclusive, of the
Trust Indenture Act, such required provision shall control.
SECTION 12.08. Computation of Interest on Debt Securities. Interest, if
any, on the Debt Securities shall be computed on the basis of a 360-day year of
twelve 30-day months, except as may otherwise be provided pursuant to Section
2.03.
SECTION 12.09. Rules by Trustee, Paying Agent and Registrar. The Trustee
may make reasonable rules for action by or a meeting of Holders. The Registrar
and any paying agent may make reasonable rules for their functions.
SECTION 12.10. No Recourse Against Others. No past, present or future
director, officer, partner, employee, incorporator, manager, stockholder,
unitholder or member of the Issuers, the General Partner, the Managing General
Partner or any other obligor on the Debt Securities of any series, as such,
shall have any liability for any obligations of the Issuers or such other
obligors under the Debt Securities, the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder by
accepting a Debt Security waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Debt Securities.
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SECTION 12.11. Severability. In case any provision in the Indenture or the
Debt Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 12.12. Effect of Headings. The article and section headings herein
and in the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 12.13. Indenture May Be Executed in Counterparts. The Indenture may
be executed in any number of counterparts, each of which shall be an original,
but such counterparts shall together constitute but one and the same instrument.
The Trustee hereby accepts the trusts in the Indenture upon the terms and
conditions herein set forth.
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IN WITNESS WHEREOF, the parties hereto have caused the Indenture to be duly
signed as of the date first written above.
ISSUERS:
PLAINS ALL AMERICAN PIPELINE, L.P.
By: PLAINS AAP, L.P., its General Partner
By: PLAINS ALL AMERICAN GP LLC,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
PAA FINANCE CORP.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and Chief
Financial Officer
TRUSTEE:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxx X. Doprava
----------------------------------------
Name: Xxxxx X. Doprava
Title: Vice President
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